WASHINGTON (CN) — Cognizant of how a ruling on political speech could have ripple effects in Congress, the justices of the Supreme Court seemed reluctant Tuesday to draw new lines over how legislative bodies censure their members.
The arguments before the court on Tuesday morning focused on a certain member of the Houston Community College System Board of Trustees. According to the brief filed by the board, David Wilson’s tenure was “marked by controversy from the start.” The board accuses Wilson of leaking confidential information and says he racked up almost $300,000 in legal fees for the board within four years of his 2013 election.
Wilson says the board violated his First and 14th Amendment rights with a 2018 vote to censure him, bringing new claims to one of his pending lawsuits. A federal judge soon dismissed the case, concluding the board's censure only amounted to a mark of disapproval, but the Fifth Circuit disagreed and reinstated Wilson’s claims for damages related to the censure including mental anguish and time wasted.
As the Supreme Court dove into the battle's next chapter Tuesday, the justices appeared focused on achieving a result that would simultaneously protect the First Amendment and the right to censure without getting involved in what Justice Clarence Thomas referred to as the “rough and tumble of politics.”
“Where is the line between well, of course, you can censure somebody versus well, no you can't put somebody in jail for stating an unpopular opinion,” Justice Elena Kagan said.
Justice Samuel Alito said the case should be decided on a simple basis to avoid questions about what a legislative body can do.
“If we say that the First Amendment allows forms of certain actions that have been historically taken by Congress against members of Congress, we're going down the path of drawing a line perhaps, regarding the issue of which sorts of actions can be taken in retaliation for a speech but unless there's something special about the word censure, and maybe there is, this is a very easy case,” Bush appointee said.
The justices continually tried to narrow the question they would rule on to avoid the more controversial issues the case could trigger.
“I thought the issue, all we had to decide, was a mere censure does not trigger a retaliation claim, and I think it will be difficult, potentially, to draw lines beyond that for the reasons the questions have raised,” Justice Brett Kavanaugh said.
The board — represented by Richard Morris, an attorney from Rogers, Morris & Grover — claims the Fifth Circuit’s ruling ignored history and parliamentary tradition and “makes the free speech clause into both a cudgel and a shield.” Morris claims that allowing retaliation to censure will destabilize legislatures and force courts to become referees in political disputes.
“Judges will be asked to draw unmanageable lines between a politician speech and conduct or legislative and nonlegislative speech and boards like HCC will have to shy away from enforcing their rules of governance because of the threat of litigation,” Morris said.
Michael Kimberly, an attorney for Wilson with the firm McDermott Will & Emery, alleges that the board censured his client as a form of punishment for his speech in a violation of his rights. Kimberly cited damages Wilson incurred from the censure like denied travel reimbursements and access to $5,000 in community affairs funds.
Kimberly also cited the Congressional Research Service saying that some lawmakers may choose to resign instead of being subjected to censure.
“That's a clear indication that lawmakers, whose speech are the ones we're concerned about being chilled by such measures, are indeed chilled by such measures so much so they simply resign,” Kimberly said.
Justice Stephen Breyer argued that this decision should be left to the legislatures as it would change the government structure significantly if the court got involved in overseeing how legislatures govern.
“It's a question of the political organization of the United States,” Breyer said. “There are legislatures, there are committees, there are state governments, and we are a court, which is just part of it — we don't run it. And since we don't run it, the other bodies also have to have some powers. … So we get into the business of starting to really oversee this, and we've changed the government structure significantly.”
The Justice Department — arguing as amicus curiae supporting the board — argued that censure was a form of speech in itself and could not be restricted. Representing the United States, Sopan Joshi, the assistant to the solicitor general, asked the court to reverse the judgment of the appeals court.
“I think the idea is that the constitution’s grant of the disciplinary power and the expulsion power reflects a well understood universal long-established tradition,” Joshi said.
Morris and Kimberly did not respond to requests for comment following oral arguments.
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