Tuesday, November 2, 2021
Argument Preview: Does an Elected Body Violate Free Speech When it Censures a Member?
The Supreme Court will hear oral arguments this morning in Houston Community College System v. Wilson, the case testing whether an elected body violates the First Amendment when it censures one of its members for the member's critical and disruptive public speech. Here's my Preview, from the ABA Preview of United States Supreme Court cases, with permission:
Case at a Glance
In 2013, David Wilson was elected as a trustee on the Houston Community College System (HCC) Board, the governing body for the HCC. During his tenure, Wilson engaged in a variety of public activities that were highly critical of the Board and his fellow trustees. The Board adopted a resolution that censured Wilson and limited certain privileges that he enjoyed as a member. Wilson sued, arguing that his censure violated free speech.
Elected legislative bodies in the United States have long exercised the power to censure members for their inappropriate or disruptive behavior or speech. As a general matter, bare censure does not violate free speech, because it does not chill or restrict the censured member’s speech. But Wilson contends that the Board impermissibly censured him for speech “outside the legislative sphere,” and that his censure impermissibly included punishment, because it limited certain privileges that he enjoyed as a member.
Can an elected legislative body, consistent with the First Amendment, censure a member for speech outside the legislative sphere and with restrictions on legislative privileges?
In 2013, David Wilson was elected as a trustee on the Houston Community College System (HCC) Board, the governing body for the HCC. Wilson served as one of nine trustees on the Board, each of whom represented a single-member district for a six-year term and served without compensation.
During his tenure, Wilson engaged in a variety of public activities that were highly critical of the Board and his fellow trustees. For example, he arranged robocalls and spoke out on a local radio station in opposition to the Board’s decision to fund a campus in Qatar. He sued HCC in state court after the Board allowed a member to vote on a measure by videoconference. He separately sued HCC and the trustees in state court after the Board allegedly excluded him from an executive session. (In all, Wilson filed four lawsuits against HCC, costing HCC nearly $300,000 in legal fees.) And he hired a private investigator to confirm that one of the trustees actually resided in the district she represented, and to investigate HCC itself. He published his various grievances on a website, where he referred to his fellow trustees and HCC by name.
On January 18, 2018, the Board adopted a resolution censuring Wilson for his behavior. The resolution said that Wilson acted in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.” The resolution noted that the censure was the “highest level of sanction available” again Wilson.
The resolution instructed Wilson to “immediately cease and desist from all inappropriate conduct.” It further provided that Wilson was “ineligible for election to Board officer positions for the 2018 calendar year,” that he was “ineligible for reimbursement for any College-related travel” for the 2017-2018 fiscal year, and that he would have to seek Board approval to gain access to any funds in his Board “community affairs” account. It warned that “any repeat of improper behavior by Mr. Wilson will constitute grounds for further disciplinary action by the Board.”
Wilson then amended his first state-court complaint to include claims against HCC and the trustees for violating his free-speech rights under the First Amendment. He sought $10,000 in damages for mental anguish, $10,000 in punitive damages, and attorney’s fees. HCC and the trustees removed the case to federal court, on the ground that the case now involved a federal question.
The district court ruled that Wilson could not demonstrate an actual injury, and dismissed the case for lack of standing. The U.S. Court of Appeals for the Fifth Circuit reversed and remanded the case for further proceedings. The court wrote, based on circuit precedent, that “a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim . . . .” Wilson v. Houston Community College System, 955 F.3d 490 (5th Cir. 2020).
In the meantime, Wilson resigned his seat for HCC’s District 2, and ran as a candidate for HCC’s District 1. He lost in a run-off election.
This appeal followed.
As a general matter, the First Amendment protects speech against government action that restricts, punishes, or chills speech. But in general, it does not protect action that merely responds to speech with, well, more speech.
Applying those general principles, some courts have held that an elected body’s mere reprimand of a member, or other members’ mere reprimand of a member, without more, does not violate the First Amendment. That’s because the legislative body or its members simply responded to another member’s speech with more speech of its own (the reprimand). The Fifth Circuit, in contrast, held that the Board’s mere reprimand of Wilson through censure may violate the First Amendment. (Remember, the Fifth Circuit did not rule on the merits; it only remanded the case for further proceedings on Wilson’s First Amendment claim.)
The parties therefore dispute whether the Board’s censure of Wilson (with or without the censure’s restrictions on his privileges as a member) was punitive. If it was, then the First Amendment applies; if not, it doesn’t.
But Wilson adds a twist. Distinguishing the circuit courts that have held that mere reprimand through censure, without more, does not violate the First Amendment, Wilson adds that an elected body may merely censure a member for speech “within the legislative sphere,” that is, while conducting legislative business, but not for speech outside that sphere.
Against this backdrop, HCC argues first that the Board’s censure resolution amounted to permissible “peer criticism” that “may be voiced by other members individually or by a majority speaking for the body as a whole.” Either way, HCC contends that its resolution did not suppress or chill Wilson’s speech, “compel him to espouse the majority’s views,” or impede his performance of his job. (HCC’s argument hinges on the theory that the Board’s censure resolution was a mere reprimand, without punishment or sanction.) It therefore did not violate the First Amendment.
HCC argues next that its censure resolution is well supported by historical tradition, going back to the Founding, and even before. It says that the English parliament censured members as early as the sixteenth century for speech outside official parliamentary proceedings, often in ways that included discipline beyond bare censure; that this power migrated to colonial assemblies, and, later, state legislatures and Congress; and that censure in response to members’ speech is widely practiced today among local elected bodies.
HCC argues that recognizing a First Amendment claim in response to a bare censure resolution (as the Fifth Circuit did in this case) “would perversely halt that speech-rich local practice.” According to HCC, that’s because a “legislative censure is important government counter-speech on a matter of public concern.” In other words, censure adds to aggregate valuable speech in a public debate; it doesn’t impede speech. Because “the Constitution safeguards . . . the right of both sides to be heard,” HCC contends that disputes between elected members and a legislative body should be resolved by the voters.
The government weighs in as amicus to elaborate on the history and tradition of censure resolutions; to put a finer point on the argument that an elected body’s censure resolution amounts to government speech; and to emphasize that the Court need not address tougher issues outside the Question Presented (for example, when an elected body disciplines a member for speech beyond bare censure). (The government seems to go farther than HCC, in that it argues that an elected body can even discipline or punish a member, including by censure.)
Wilson counters first by conceding that a legislative body may censure a member’s speech “within the legislative sphere,” that is, on the chamber floor, in legislative hearings, or in legislative reports, for example. But he says that a legislative body may not censure or otherwise punish a member’s speech “outside the legislative sphere.” He claims, contrary to HCC, that mere censure, without more, is punitive, and thus an impermissible response to speech outside the legislative sphere. He claims that historical evidence, modern precedents, and contemporary practice all confirm this. He points to examples from the Founding Era, more recent court rulings (including Supreme Court rulings that have “held in other contexts that formal censures can violate the First Amendment”), and contemporary authorities on parliamentary procedure. He writes that “[m]any such bylaws expressly state that censures may not be entered against members in response to their speech.”
In any event, Wilson argues that the Board’s censure resolution here went farther than mere censure. He points out that it included revoking and limiting certain of his “privileges of office,” including barring his access to reimbursements for college-related travel and restricting his access to community affairs funds. He also points out that the censure expressly “directed” him “to immediately cease and desist” his outside activities against the Board or face “further disciplinary action.” He contends that because his censure was “plainly punitive,” it violated the First Amendment, “[w]hatever one might say about formal censures as a general matter.”
Wilson argues that the censure violates his free-speech rights under Bond v. Floyd. 385 U.S. 116 (1966). The Court in that case held that the Georgia legislature violated the First Amendment when it excluded a member for his outspoken opposition to the Vietnam War. Wilson claims that while his censure falls short of exclusion, his censure nevertheless “included practical disabilities intended to prevent Wilson from performing his official functions”—just like exclusion. “Under Bond, the censure therefore violated the First Amendment.”
Wilson contends that his censure was not protected government speech. He says that in contrast to ordinary government speech (which might include a mere position statement, for example), his censure was punitive. He claims that if censures were government speech, “there would be nothing to stop elective bodies (or any governmental agency) from censuring journalists for critical coverage of the government, including (so it would seem) revoking privileges like press passes in response.”
Wilson argues that his punitive censure cuts against the values of the First Amendment, because it impedes speech (and doesn’t enhance aggregate speech). He claims that Board members had numerous other ways to express their opposition to his speech (and thus add to aggregate speech, consistent with the First Amendment). But he says that his punitive censure only serves to shut down his speech. He asserts that if his censure stands, “elective assemblies [would be empowered] to use their formal censure power to chill dramatically the speech of out-of-favor elected officials.”
Finally, Wilson emphasizes that a ruling in his favor would only disallow “a very narrow range of official censures.” According to Wilson, that’s because censures are “shockingly rare in the United States,” and almost always in response to speech “within the legislative sphere.” He says that a ruling in his favor would only disallow censures outside the legislative sphere, which are already “almost unheard of.”
The Court has never squarely addressed whether an elected body’s censure of a member implicates or violates the First Amendment. Some lower courts have, however, and there’s some tension, or even conflict, in how they have addressed the question. At least three federal circuit courts (the Fourth, Sixth, and Tenth Circuits) and the Vermont State Supreme Court have all ruled that censure does not violate the First Amendment. The Fifth Circuit ruled to the contrary.
In sorting this out, look for the Court to consider several factors. First, the Court will likely consider whether an elected body’s mere reprimand, standing alone, is sufficient punishment to trigger First Amendment scrutiny. Next, if not, the Court will need to consider how much punishment or retaliatory action a censure resolution must include in order to trigger the First Amendment. In particular, the Court will have to consider whether an elected body’s restrictions on a member’s legislative privileges, without more, are sufficient punishment. Third, the Court may consider any differences between an elected body’s formal censure resolution and other members’ less formal reprimands (which are constitutionally protected), and whether those differences are constitutionally significant. Finally, the Court will consider Wilson’s claim that censure is valid for speech “within the legislative sphere,” but not outside it.
The Court’s approach may also depend on how it understands censure. If it understands censure as adding to aggregate speech, as HCC and the government argue, it will more likely allow censure, consistent with its more general trend to promote more speech, not less. If it understands censure as detracting from aggregate speech, however, as Wilson argues, it will more likely scrutinize censure. In a different dimension, if it understands censure as government speech, as HCC and the government argue, it will more likely allow censure, consistent with its more general trend to allow the government to say whatever it likes. If it understands censure as government punishment, however, as Wilson argues, it will more likely scrutinize censure.
Finally, and most importantly, the case could impact the censure practices of local governments across the country. HCC argues in its cert. petition that thousands of local governments authorize censure of members, and that “it is frequently used” for a range of member speech that “is quite broad.”