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College official who faced censure loses high court appeal

As politicians brawl over cancel culture, the justices make a careful ruling affirming the right of legislative bodies to discipline their members.

WASHINGTON (CN) — A member of a school board who was censured after his feud with colleagues led to multiple costly lawsuits does not have a First Amendment case, the Supreme Court ruled in a unanimous decision Thursday.

Taking care to avoid creating a broad new precedent on how legislative bodies can regulate speech, the narrow opinion hews closely to the facts of this case.

“When it comes to disagreements of this sort, history suggests a different understanding of the First Amendment — one permitting ‘free speech on both sides and for every faction on any side,'” Justice Neil Gorsuch wrote for the court.  

The case stems from the stormy relationship between the Houston Community College System Board of Trustees and a member of its board, David Wilson, since his election in 2013. Over the course of four years, Wilson caused the board to accumulate almost $300,000 in legal fees. When the board finally censured and took away his right to run again in 2018, Wilson amended one of his existing lawsuits to add claims under the First and 14th Amendment.

Wilson sees the board’s censure as a form of punishment for his speech. He also wants damages he incurred from the censure, including denied travel reimbursements and access to $5,000 in community affairs funds.

A federal judge tossed the suit, saying the censure was only a mark of disapproval from the board, but the Fifth Circuit offered Wilson another shot to sue. 

With the board lobbying the Supreme Court for a reversal, its attorney, Richard Morris with Rogers, Morris & Grover, said the Fifth Circuit’s ruling could destabilize legislatures and force courts to become referees in political disputes. 

Wilson's attorney Michael Kimberly meanwhile cited the Congressional Research Service during November oral arguments in support of a claim that legislative censure silences lawmakers. 

At that hearing, the justices seemed wary of getting involved in how political bodies operate. 

Making clear that the court does not question that the First Amendment prohibits government officials from taking retaliatory actions against individuals for engaging in protected speech, the court found Thursday that Wilson’s claims conflicted with how this principle has been applied historically. 

“That principle poses a problem for Mr. Wilson because elected bodies in this country have long exercised the power to censure their members,” Gorsuch wrote. “In fact, no one before us has cited any evidence suggesting that a purely verbal censure analogous to Mr. Wilson’s has ever been widely considered offensive to the First Amendment.” 

Gorsuch’s opinion cites censures going back to colonial times and says assemblies have long used their power to censure members for views expressed inside and outside the legislature. 

“The parties supply little reason to think the First Amendment was designed or commonly understood to upend this practice,” Gorsuch wrote. “To the contrary, the United States Senate issued its first censure in 1811, after a Member read aloud a letter from former President Jefferson that the body had placed under an ‘injunction of secrecy.’”

Outside of congressional censures, the court found that censures were actually more common at the state and local level. 

The court said Wilson would have had to prove that the government took adverse action in response to his speech that wouldn’t have been taken if they weren’t looking for retaliation. Wilson is not just an average citizen, he’s an elected official, and the court notes the public office holders must endure some criticism. 

“The censure at issue before us was a form of speech by elected representatives,” Gorsuch wrote. “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.” 

Gorsuch notes that Wilson did not argue against the board’s initial reprimand and did not suggest that the board’s criticism deterred him from speaking freely. Wilson only takes issue with the board’s resolution because it was called a disciplinary censure. 

“So on Mr. Wilson’s telling, it seems everything hinges on a subtlety: A reprimand no matter how strongly worded does not materially impair the freedom of speech, but a disciplinary censure does,” Gorsuch wrote. “That much we find hard to see.” 

The court is careful to say that its ruling does not mean that verbal censures can never interfere with First Amendment rights. They also note that this ruling does not address censures that include punishments. 

“Our case is a narrow one,” Gorsuch wrote. “It involves a censure of one member of an elected body by other members of the same body. It does not involve expulsion, exclusion, or any other form of punishment. It entails only a First Amendment retaliation claim, not any other claim or any other source of law.” 

Neither Morris nor Kimberly — the latter is with the firm McDermott Will & Emery — responded to requests for comment Thursday.

Follow @KelseyReichmann
Categories / Appeals, Civil Rights, Education, National

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