In Houston Community College System v. Wilson, the U.S. Supreme Court held that an elected trustee who was publicly censured by his board did not have a First Amendment claim. In reaching its decision, the Court explained that the purely verbal censure was itself a form of free speech by elected representatives.
Facts of the Case
Petitioner Houston Community College System (HCC) is run by a Board of Trustees (Board), each of whom is elected by the public from single-member districts to serve a six-year term without remuneration. Respondent David Wilson was elected to the Board as the trustee in 2013.
Beginning in 2017, Wilson voiced concerns that trustees were violating the Board’s bylaws and not acting in the best interests of HCC. After disagreeing with HCC’s decision to fund a campus in Qatar, Wilson made his complaints public, arranging robocalls regarding the Board’s actions and interviewing with a local radio station. When HCC allowed one trustee to vote via videoconference, Wilson contended that the bylaws prohibited such voting. He subsequently filed a lawsuit against HCC and the individual Board trustees in state court seeking a declaratory judgment that the videoconference vote was illegal under the bylaws and requesting an injunction. Wilson filed a second lawsuit against HCC and the trustees in state court after the Board allegedly excluded him from an executive session, asserting that his exclusion was unlawful and again sought declaratory and injunctive relief.
In addition to voicing his concerns and criticisms at Board meetings, Wilson maintained a website where he referred to his fellow trustees and HCC by name. Wilson also hired a private investigator to investigate HCC.
On January 18, 2018, the Board voted in a regularly-scheduled session to adopt a resolution publicly censuring Wilson for his actions. In the censure resolution, the Board chastised Wilson for acting 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 censure, the Board emphasized, was the “highest level of sanction available,” as Wilson was elected and could not be removed. The Board directed Wilson to “immediately cease and desist from all inappropriate conduct” and warned that “any repeat of improper behavior by Mr. Wilson w[ould] constitute grounds for further disciplinary action by the Board.”
Upon being censured, Wilson amended his suit to include claims against HCC and the trustees under 42 U.S.C. § 1983, asserting that the censure violated his First Amendment right to free speech and his Fourteenth Amendment right to equal protection. A U.S. district court judge dismissed the suit. However, the Fifth Circuit reversed, holding that HCC’s censure of one of its members for violating its bylaws was an unlawful restriction on Wilson’s free speech rights.
In reaching its decision, the Fifth Circuit cited precedent establishing that a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under § 1983. “Here, the Board’s censure of Wilson specifically noted it was punishing him for ‘criticizing other Board members for taking positions that differ from his own’ concerning the Qatar campus, including robocalls, local press interviews, and a website. The censure also punished Wilson for filing suit alleging the Board was violating its bylaws,” the appeals court wrote. “As we have previously held, ‘[R]eporting municipal corruption undoubtedly constitutes speech on a matter of public concern.’ Therefore, we hold that Wilson has stated a claim against HCC under § 1983 in alleging that its Board violated his First Amendment right to free speech when it publicly censured him.”
Supreme Court’s Decision
The Supreme Court unanimously reversed the Fifth Circuit and held that Wilson did not have an actionable First Amendment claim arising from the Board’s purely verbal censure. Justice Neil M. Gorsuch wrote on behalf of the Court.
In support of its decision, the Supreme Court noted that elected bodies in the United States have long exercised the power to censure their members. The Court explained that Congress has censured Members for objectionable speech directed at fellow Members, comments to the media, public remarks disclosing confidential information, and conduct or speech thought damaging to the Nation. Likewise, Justice Gorsuch noted that censures have also proven common at the state and local level.
“On Mr. Wilson’s telling and under the Fifth Circuit’s holding, a purely verbal censure by an elected assembly of one of its own members may offend the First Amendment. Yet we have before us no evidence suggesting prior generations thought an elected representative’s speech might be ‘abridg[ed]’ by that kind of countervailing speech from his colleagues,” Justice Gorsuch wrote. “Instead, when it comes to disagreements of this sort, history suggests a different understanding of the First Amendment—one permitting ‘[f]ree speech on both sides and for every faction on any side.’”
Turning to the Court’s contemporary doctrine, namely Nieves v. Bartlett, 587 U.S. __ (2019), confirms that a plaintiff pursuing a First Amendment retaliation claim must show, among other things, that the government took an “adverse action” in response to his speech that “would not have been taken absent the retaliatory motive.” While lower courts have taken various approaches to distinguish material from immaterial adverse actions, the Court concluded that “any fair assessment of the materiality of the Board’s conduct in this case must account for at least two things:” (1) the fact that Mr. Wilson was an elected official and that (2) the only adverse action at issue—the verbal censure—was itself a form of speech that concerns public office.
Regarding Mr. Wilson’s status as an elected official, the Court explained: “In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers — and to continue exercising their free speech rights when the criticism comes.”
With respect to the verbal censure itself, the Court noted, “The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy. But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same.”
In further support of its decision, the Court noted that:
- everyone involved was an equal member of the same deliberative body,
- the censure did not prevent Wilson from doing his job,
- the censure did not deny Wilson any privilege of office, and
- Wilson did not allege that the censure was defamatory.
The Court concluded that “in these circumstances, [it did] not see how the Board’s censure could have materially deterred an elected official like Mr. Wilson from exercising his own right to speak.”
In closing, the Court clarified that while this particular set of facts did not amount to a First Amendment retaliation claim, such a claim may exist if the facts were different: “It may be, for example, that government officials who reprimand or censure students, employees, or licensees may in some circumstances materially impair First Amendment freedoms.” He further clarified that the decision does not address questions concerning legislative censures accompanied by punishments, or those aimed at private individuals or the First Amendment implications of censures or reprimands issued by government bodies against government officials who do not serve as members of those bodies.
For more information about the Supreme Court’s decision in Houston Community College System v. Wilson or the legal issues involved, we encourage you to contact a member of Scarinci Hollenbeck’s Public Law Group at 201-896-4100.