Posted on August 15, 2022
Important Takeaways: The Supreme Court held that when a Board of Trustees verbally censured one of their members, David Wilson, it did not violate his First Amendment Right to Free Speech. The censure did not materially deter Mr. Wilson from exercising his own right to free speech. The censure also did not prevent him from doing his job or deny him any privilege of office. Mr. Wilson also did not allege the speech was defamatory. The other Board members had the same First Amendment Rights as Mr. Wilson and were allowed to speak out.
Facts: David Wilson was elected to the Houston Community College System (HCC) Board of Trustees (the Board) in 2013. Mr. Wilson often disagreed with his colleagues and brought various lawsuits challenging the Board’s actions. In 2016, Mr. Wilson was reprimanded publicly for the escalating disagreements. After this, Mr. Wilson told various media outlets that the Board was violating its bylaws and ethical rules. He set up automatic calls to the constituents of certain trustees to publicize his views. Mr. Wilson hired a private investigator to watch another Board member, alleging she did not live in the district that she had been elected. Mr. Wilson filed two lawsuits in state court alleging the Board violated its bylaws by allowing a member to vote via video conference and that, because he had been excluded from a meeting about the first lawsuit, HCC had prohibited him from performing his core functions as a Board Member. HCC had already spent $250,000 in legal fees from lawsuits filed by Mr. Wilson.
At a meeting in 2018, the Board adopted another public resolution censuring Mr. Wilson. The resolution said Mr. Wilson’s conduct was not consistent with the best interests of HCC and was not only inappropriate but reprehensible. The resolution also said that Mr. Wilson could not be elected to the Board for the 2018 calendar year, he was not eligible for reimbursement for any HCC-related travel, and his future access to funds in his Board account for community affairs would have to be approved by the Board. The Board recommended that Mr. Wilson take additional governance and ethics training.
After this resolution, Mr. Wilson amended one of his state court pleadings to assert additional claims, including that the Board had violated his First Amendment rights with their censure. The case got moved to federal court and the District Court dismissed the case, saying Mr. Wilson did not have standing but the 5th Circuit Court of Appeals found that he did have standing and a viable First Amendment claim. The Supreme Court agreed to hear the case regarding only the First Amendment Right to Free Speech claim arising from the Board’s verbal censure.
The Supreme Court held that no evidence was presented that a purely verbal censure is widely considered a First Amendment violation, actually elected bodies have historically had the power to censure their members. The Court pointed to many instances of the House of Representatives and Senate censuring their members. The Court pointed out that these censures have been for objectionable speech but also for comments made to the media, publicly disclosing confidential information, and conduct or speech thought to be damaging to the nation.
For Mr. Wilson to prevail on his First Amendment claim, he would have to show that the Board took an adverse action to the speech that would not have been taken absent a retaliatory motive. The Court explained that Mr. Wilson, as an elected official, is expected to shoulder some criticism about his public service from his constituents and peers and to continue to exercise his free speech rights when criticism comes. The only possible adverse action here was Mr. Wilson’s fellow Board Members exercising their Free Speech rights. Since Mr. Wilson has the right to speak freely on questions of government policy, so do his fellow Board members. The censure at issue was a form of speech by elected representatives and therefore is not considered an adverse action. The censure did not prevent Mr. Wilson from doing his job or deny him any privilege of office and Mr. Wilson did not argue the speech was defamatory. The Court held that just because the second course of action by the Board against Mr. Wilson was a disciplinary censure, does not mean it automatically materially impairs the freedom of speech. Although some verbal reprimands or censures by government officials violate the First Amendment, in this case, it did not because Mr. Wilson was not materially deterred from exercising his own right to speak.
The Court made it clear that this case only involves the censure of one member of an elected body by members of the same body. The issues not addressed are expulsion, exclusion, or any other form of punishment.
What this means: While this holding was regarding the Board of a Community College, it still applies to all government, and elected bodies, including public school boards. Verbal censure of one member by other elected does not violate the First Amendment as long as it does not prevent the member from exercising their own First Amendment rights. The speech can also not prevent the member from doing their job, deny them any privilege of office, or be defamatory.
What is the name of the case and where you can read it: Houston Community College System v. Wilson, 9th Supreme Court, March 24, 2022. Read it here.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, and Kevin by email or at 406-542-1300 to discuss these issues.