Is Censuring a Legislator a First Amendment Violation?

"The First Amendment was never intended to curtail speech and debate within legislative bodies."

In 2018, the Houston Community College (HCC) System Board of Trustees, a nine-member elected body, censured one of its own members for "inappropriate conduct." According to that trustee, the reprimand violated his right to freedom of speech. This term the U.S. Supreme Court is considering the merits of that claim in Houston Community College System v. Wilson.

Trustee David Buren Wilson objected to some of the HCC board's decisions, including its vote to fund a campus in Qatar. Wilson voiced his displeasure in local news outlets, published a website that cataloged his criticisms, orchestrated a robocall campaign against the board, hired a private investigator to probe the HCC and a fellow trustee, and sued the board four times. After the board censured him, he sued again, this time on free speech grounds.

In April 2020, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit agreed with Wilson that "a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim." That ruling did not sit well with eight other 5th Circuit judges, who later argued that a full sitting of the appellate court should have reheard the case.

Judge Edith Jones, joined by Judges Don Willett, James Ho, Kyle Duncan, and Andrew Oldham, faulted the panel for upending freedom of speech. "The First Amendment was never intended to curtail speech and debate within legislative bodies," Jones wrote. "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."

Writing separately, Ho said "the First Amendment guarantees freedom of speech, not freedom from speech." He then told Wilson to 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 Supreme Court may well heed those 5th Circuit dissenters. 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."