First Amendment

Does the First Amendment Shield a Government Official From Being Censured by His Colleagues?

The Supreme Court will hear the case this fall.

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In 2018, the Board of Trustees of the Houston Community College System (HCC), a nine-member elected body that governs a network of community colleges in the greater Houston, Texas, area, officially censured one of its own members for "inappropriate conduct" and for acting in a fashion "not consistent with the best interests of the College or the Board." According to that member, the censure vote caused him mental anguish and violated his right to freedom of speech. The U.S. Supreme Court will hear oral arguments in the matter this fall.

The case is Houston Community College System v. Wilson. David Buren Wilson was an elected member of the HCC Board of Trustees who strongly objected to some of the board's decisions, including the vote to fund a campus abroad in Qatar. He made his displeasure known by speaking out in the local media, publishing a website that cataloged his criticisms, orchestrating a robocall campaign against the HCC, hiring a private investigator to investigate his fellow board members, and suing the board itself. After the board censured him, he also sued on free speech grounds.

In April 2020, Wilson prevailed before a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, which said that "a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim."

But that ruling did not sit well with eight other 5th Circuit judges, who argued that a full sitting of the court should have reheard the case and reached the opposite result. In particular, Judge Edith Jones, joined by Judges Don Willett, James Ho, Kyle Duncan, and Andrew Oldham, faulted the three-judge panel for turning the First Amendment on its head. "The First Amendment was never intended to curtail speech and debate within legislative bodies," Jones wrote. The HCC board, in other words, had every right to issue "a censure against this gadfly legislator."

As Jones put it, "fellow legislators may strike hard verbal blows, and all's fair when they exercise corporate authority to censure or reprimand one of their members; such actions are not a violation of the First Amendment, but its embodiment in partisan politics."

Ho wrote separately to further emphasize his objections to the three-judge panel's mishandling of the free speech principles involved in the case. "The First Amendment guarantees freedom of speech, not freedom from speech," he wrote. "It secures the right to criticize, not the right not to be criticized." Ho then effectively told Wilson to suck it up and stop being such a crybaby. "Leaders don't fear being booed," he wrote. "And they certainly don't sue when they are."

A majority of the U.S. Supreme Court may well heed those dissenting 5th Circuit voices when the Court considers the case this fall. After all, as the HCC points out in its principal brief, "some public speech by an individual legislator may well provoke a public censure by the body's current majority, speaking in the name of the institution itself. When it does, both statements are part of the cycle of speech and counter-speech that the First Amendment seeks to foster, not constrain."

NEXT: In ‘Precedent Setting’ Transgender Rights Case, Court Strikes Down Hobby Lobby Bathroom Policy

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  1. So let me get this straight. Those 8 justices see no First Amendment violation in the board censuring one of their own elected officials for what he said, but does see a First Amendment violation in him suing them for that censure “because it stifles debate”.

    Orwell would be so proud.

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    2. So let me get this straight. Those 8 justices see no First Amendment violation in the board censuring one of their own elected officials for what he said, but does see a First Amendment violation in him suing them for that censure “because it stifles debate”.

      Yes. And it makes sense. The censure is speech/ expression by the board. It isn’t a punishment. It doesn’t stop the gadfly from expressing himseflf By definition : “A censure is an expression of strong disapproval or harsh criticism”. it is speech, not a a punishment.

      Why does he get to say whatever he wants, but the board is forbidden from expressing their strong disapproval of his words and actions.

      The alternative is that this guy gets to say whatever he wants, and the rest of the board has no ability to EXPRESS THEIR STRONG DISAPPROVAL — which is a violation the boards right to express themselves.

      1. “The alternative is that this guy gets to say whatever he wants, and the rest of the board has no ability to EXPRESS THEIR STRONG DISAPPROVAL — which is a violation the boards right to express themselves.”

        That is incorrect. The members of the board would be perfectly in their right to express their personal strong disapproval of the guy, get together and publish whatever joint statement, or even bring it up at a board meeting.

        The only thing that is questionable is whether this expression of strong disapproval can be an official action by a government entity.

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    3. Censure isn’t the same as Censor.

      Censure: An official expression of disapproval.
      Censor: To prohibit or remove objectionable speech.

  2. Ima say ‘no’.

    According to that member, the censure vote caused him mental anguish and violated his right to freedom of speech.

    It appears both sides are freely expressing their opinions, mental anguish be damned. I have not explored the case in depth, however.

    1. >>mental anguish be damned

      prove that vexation or go home, Wilson.

      1. It’s mental anguish all the way down.

        1. I’m offended by your being offended!

          1. I’m sorry you feel that way!

  3. What is the actual consequence of censuring the plaintiff? I remember a scene from the sitcom Third Rock from the Sun where John Lithgow’s character is told the consequences of misbehavior in an academic institution. He wants to skip over the stages of admonishment and censure to get to the paid vacation.

    1. Seconding this question. From what I read, censure is just a strong condemnation with no real consequences. It’s just a way to say “we don’t like what you’re doing.” If that’s really all a censure is, then I think it’s well within the rights of the College System to censure their colleague, even if it is hyper-partisan or in poor taste.

      1. Hyper partisan? Guy is going off a rail attacking the rest of his opponents publicly. The whole situation is an embarrassment.

        1. He’s doing his job as an elected trustee. Based on the article, he feels the council is making a huge mistake and he’s doing everything he can to prevent it and to inform the public. Censuring him for that is certainly partisan.

          I don’t approve of the idea that you have to go along with the organization just because you’re a minority voice.

  4. Censure means what if anything in this case? Did he lose his parking spot? Suppose they said what they said but left out one word – Censure? What is he suing over? Why did the S. Ct. even take this case? If he is being censured for comments he made outside of the school then maybe he has a case.

    1. >>Why did the S. Ct. even take this case?

      three dummies @the 5th Circus spilled some milk.

    2. Censure means what if anything in this case?

      It seems to mean an expression of strong disapproval.

      It doesn’t seem like the censured individual felt any sort of punishment or had their rights curtailed in any way.

      He didn’t lost his ability to debate or vote on matters etc.

      He is just mad that his speech was met with harsh criticism from his colleagues.

      I dont understand why the SCOTUS is taking this case. It seems pretty clear cut that his speech rights were not violated

      1. “I dont understand why the SCOTUS is taking this case. It seems pretty clear cut that his speech rights were not violated”

        SCOTUS is taking the case because the 5th circuit panel that heard the case said his speech rights were violated.

  5. Partisan politics is not an inalienable right. Free speech is.

    That being said, if the censure doesn’t directly persecute him it doesn’t violate his rights.

    He should keep speaking.

  6. Legislative bodies issuing resolutions criticizing people…that’s such a longstanding tradition I’m not sure if the Supreme Court will want to mess with it, but who knows, they overturn so many things.

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