The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
During President Trump's second impeachment trial, Seth Barrett Tillman and I wrote that elected officials, including the President, retained their First Amendment right to freedom of speech. (See here, here, here, and here.) We often quoted from Chief Justice Rehnquist's classic book about presidential impeachments, Grand Inquests. He observed that, during times of conflict, "[p]rovisions in the Constitution for judicial independence, or provisions guaranteeing freedom of speech to the President as well as others, suddenly appear as obstacles to the accomplishment of the greater good." Yet, some of our critics argued that elected officials had reduced First Amendment rights, and their speech was subject to the Pickering/Garcetti line of cases. In other words, elected officials would be treated in the same fashion as civil servants.
In Houston Community College v. Wilson, the Supreme Court reaffirmed that elected officials have free speech rights. Justice Gorsuch's unanimous majority opinion reflects this position–and it did not seem controversial at all.
First, the Court stated, directly, that elected officials retain their free speech rights. These accountable officials need to exercise those rights to fully represent their constituents.
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." Mills v. Alabama, 384 U. S. 214, 218 (1966). 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, sofar as it may respect [their] fitness and qualifications forthe office." White v. Nicholls, 3 How. 266, 290 (1845).
Mills v. Alabama, the cited case, does not directly support the proposition that elected officials retain their free speech rights. But the Court stated the issue clearly: elected officials can "continue exercising their free speech rights when the criticism comes."
Second, Gorsuch expands on this reasoning. He explains that the elected members of the Houston Community College Board can use their free speech rights to censure Wilson, a fellow elected member:
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." Madison's Report on the Virginia Resolutions (Jan. 7, 1800), in 17 Papers of James Madison 345 (D. Mat-tern, J. Stagg, J. Cross, & S. Perdue eds. 1991). And the role that elected officials play in that process "'makes it all the more imperative that they be allowed to freely express themselves.'" Republican Party of Minn. v. White, 536 U. S. 765, 781 (2002).
Again, the First Amendment protects the rights of politicians to criticize other politicians. Their speech is not subject to the ad-hoc balancing test from Pickering.
Gorsuch's analysis recognizes that elected officials are accountable to the electorate, and not a bureaucracy. Those elected officials are expected to receive public criticism. But more importantly, those elected officials retain their free speech rights to respond to public criticism.
Gorsuch stressed over and over again that the case concerned elected officials:
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.
These First Amendment rights are not diminished by entering elected office, as they perhaps would be by entering the civil service.
In January 2020, Tillman and I wrote:
As a general matter, we think it is a mistake to analogize the President, an elected official, to a full-time, permanent employee or civil servant. Elected public officials make policy; civil servants and other public employees carry out those policies. The case law permits the civil servants' speech to be muted so that the government-as-employer can carry out its policy goals. The goal is to ensure that elections remain meaningful, and that the government-as-employer can put forward its message, notwithstanding its employees who may take a different view. We do not suggest that the Pickering line of cases was correctly or incorrectly decided. Our point is more limited: Pickering offers civil servants some free speech protections, but it also allows the government-as-employer to impose some free speech limitations on its civil servants. Those free speech limitations make little or no sense when applied to elected officials.
I think HCC v. Wilson provides some support for our position.