The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From today's opinion in Houston Community College System v. Wilson:
[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." Some adverse actions may be easy to identify—an arrest, a prosecution, or a dismissal from governmental employment. "[D]eprivations less harsh than dismissal" can sometimes qualify too. At the same time, no one would think that a mere frown from a supervisor constitutes a sufficiently adverse action to give rise to an actionable First Amendment claim.
To distinguish material from immaterial adverse actions, lower courts have taken various approaches. Some have asked whether the government's challenged conduct would "chill a person of ordinary firmness" in the plaintiff 's position from engaging in "future First Amendment activity." Others have inquired whether a retaliatory action "adversely affected the plaintiff's … protected speech," taking into account things like the relationship between speaker and retaliator and the nature of the government action in question. But whether viewed through these lenses or any other, it seems to us that any fair assessment of the materiality of the Board's conduct in this case must account for at least two things.
First, Mr. Wilson was an elected official. 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. As this Court has put it, "[w]hatever differences may exist about interpretations of the First Amendment, there is practically universal agreement" that it was adopted in part to "protect the free discussion of governmental affairs." When individuals "consent to be a candidate for a public office conferred by the election of the people," they necessarily "pu[t] [their] character in issue, so far as it may respect [their] fitness and qualifications for the office."
Second, the only adverse action at issue before us is itself a form of speech from Mr. Wilson's colleagues that concerns the conduct of public office. 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. The right to "examin[e] public characters and measures" through "free communication" may be no less than the "guardian of every other right." And the role that elected officials play in that process "'makes it all the more imperative that they be allowed to freely express themselves.'"
Given these features of Mr. Wilson's case, we do not see how the Board's censure could qualify as a materially adverse action consistent with our case law. The censure at issue before us was a form of speech by elected representatives. It concerned the public conduct of another elected representative. Everyone involved was an equal member of the same deliberative body. As it comes to us, too, the censure did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office, and Mr. Wilson does not allege it was defamatory. At least in these circumstances, we do 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 rejecting Mr. Wilson's claim, we do not mean to suggest that verbal reprimands or censures can never give rise to a First Amendment retaliation claim. 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. See generally Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy (1994) (licensing); Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) (same); Holloman v. Harland (CA11 2004) (student); Kirby v. Elizabeth City (CA4 2004) (employee). Likewise, we do not address today questions concerning legislative censures accompanied by punishments, or those aimed at private individuals. Cf. Kilbourn v. Thompson, (1881) (distinguishing Congress's power to inflict certain punishments on its own Members from its power to punish nonmembers). Nor do we pass on the First Amendment implications of censures or reprimands issued by government bodies against government officials who do not serve as members of those bodies. See, e.g., Jenevein v. Willing (CA5 2007); Scott v. Flowers (CA5 1990).
History could hold different lessons for cases like these, too. For example, following the Whiskey Rebellion, Federalists supported by President Washington introduced a proposal in Congress to denounce "self-created societies" they believed had "'misrepresent[ed] the conduct of the Government.'" James Madison and others opposed, and ultimately defeated, the effort in the House of Representatives. In doing so Madison insisted that, in a Republic like ours, "the censorial power is in the people over the Government, and not in the Government over the people." When the government interacts with private individuals as sovereign, employer, educator, or licensor, its threat of a censure could raise First Amendment questions. But those cases are not this one.
Here's more on the particular facts of this case, and the actions by Wilson that led to the censure:
The Houston Community College System (HCC) is a public entity that operates various community colleges in Texas. Its Board of Trustees consists of nine members, each of whom is elected from a single-member district for a 6-year term. Mr. Wilson was elected to the Board in 2013. From the start, his tenure was a stormy one. Often and strongly, he disagreed with many of his colleagues about the direction of HCC and its best interests. Soon, too, he brought various lawsuits challenging the Board's actions. By 2016, these escalating disagreements led the Board to reprimand Mr. Wilson publicly. According to news reports, Mr. Wilson responded by promising that the Board's action would "'never … stop me.'"
Nor did it. In the ensuing months, Mr. Wilson charged the Board in various media outlets with violating its bylaws and ethical rules. He arranged robocalls to the constituents of certain trustees to publicize his views. He hired a private investigator to surveil another trustee, apparently seeking to prove she did not reside in the district that had elected her. He also filed two new lawsuits in state court. In the first, Mr. Wilson alleged that the Board had violated its bylaws by allowing a trustee to vote via videoconference. When his colleagues excluded him from a meeting to discuss the lawsuit, Mr. Wilson filed a second suit contending that the Board and HCC had "'prohibited him from performing his core functions as a Trustee.'" All told, these two lawsuits cost HCC over $20,000 in legal fees. That was on top of more than $250,000 in legal fees HCC incurred due to Mr. Wilson's earlier litigation.
At a 2018 meeting, the Board responded by adopting another public resolution, this one "censuring" Mr. Wilson. The resolution stated that Mr. Wilson's conduct was "not consistent with the best interests of the College" and "not only inappropriate, but reprehensible." …
UPDATE 3/24/2022, 3:09 pm: I neglected to mention that my friend Raquelle de la Rocha and I filed an amicus brief on behalf of the Foundation for Individual Rights in Education in this case, focusing entirely on the point that the Court discussed in the "In rejecting Mr. Wilson's claim, we do not mean to suggest that verbal reprimands or censures can never give rise to a First Amendment retaliation claim" passage (and citing, among other cases, Ibanez, Zauderer, Holloman, and Kirby, which that passage cites). Here's our Summary of Argument:
This Court could well conclude that elected political bodies are free to censure their members based on their members' speech. Amicus expresses no view on that question.
But any such holding should be expressly limited to elected political bodies and their members, based on the special character of the relationship between them. As politicians, elected officials can rightly be held accountable for their speech (or the exercise of other constitutional rights), whether by the voters or by their colleagues. Indeed, under this Court's patronage cases, such as Branti v. Finkel, 445 U.S. 507 (1980), even high-level appointed officials can often be fired outright based on their political affiliations; they can surely be reprimanded as well.
And political officials should be prepared even for blatantly political retaliation. To be an honest elected official, one must be ready to lose one's job—whether via recall, election loss, or perhaps even expulsion by one's colleagues (when that is legally authorized)—for doing or saying what one thinks is right. This Court could conclude that this extends to reprimands, too.
Yet this Court ought not make such a judgment simply by broadly endorsing the view that reprimands are "government speech" (e.g., Pet. Br. 14, 29-31, 34) and are thus categorically immune from Free Speech Clause scrutiny. In a wide range of other contexts, such as professional licensing, public education, and government employment, formal reprimands are properly viewed not as government speech, but as formal adverse actions, akin to demotion or suspension. Indeed, some of this Court's leading professional speech cases have set aside reprimands on First Amendment grounds.
The threat of formal reprimands, even ones that are not combined with any suspension or demotion, can have a powerful chilling effect on professionals, students, or employees, whose careers and livelihoods are on the line. This is especially so because people know that a past formal reprimand will often be considered in deciding on future, more tangible, disciplinary measures. Such formal reprimands therefore can easily violate the target's First Amendment rights to the extent the reprimands are based on constitutionally protected speech. They raise materially different First Amendment considerations from this case, and this Court should be careful to distinguish such cases from this one.