Houston Community College System v. Wilson

Issues 

Does the First Amendment prohibit an elected body from censuring a member in response to the member’s constitutionally protected speech?

Oral argument: 
November 2, 2021

This case asks the Supreme Court whether First Amendment prohibits an elected body from censuring one of its members in response to the member’s protected speech. The Houston Community College System Board of Trustees censured David Buren Wilson, one of its elected members, after Wilson criticized the Board’s management. Petitioner Houston Community College System argues that a censure is essentially the expression of a collective opinion that cannot cause any harm cognizable under the First Amendment. Respondent David Buren Wilson responds that a censure is inherently punitive and that, in this case, the censure caused him pecuniary injury because it deprived him of access to certain funds. This case will determine whether the First Amendment sets limits on the ability of elected bodies, such as legislatures and school boards, to discipline members for speech that a majority considers objectionable.

Questions as Framed for the Court by the Parties 

Whether the First Amendment restricts the authority of an elected body to issue a censure resolution in response to a member’s speech.

Facts 

Houston Community College System (“HCC”) is a public community college district that oversees community colleges in and around Houston. Wilson v. Houston Community College System, at 490, 493. HCC is run by its Board of Trustees (“Board”), which consists of nine trustees elected from single-member districts to serve six-year terms. Id. Trustees of the Board are not compensated for their services. Id. In November 2013, David Wilson was elected to the Board to serve as the HCC District 2 trustee. Id.

Around 2017, Wilson began voicing concerns that trustees were violating Board bylaws, claiming that other trustees were not acting in HCC’s best interests. Id. When the HCC decided to fund a campus in Qatar, Wilson publicly expressed his disagreement. Id. Wilson arranged robocalls speaking against the Board’s decision and interviewed with a local radio station to discuss the topic. Id.

Wilson filed suit against HCC and the Board’s trustees after HCC allowed a trustee to vote via videoconference, arguing that the Board’s bylaws prohibited remote voting. Id. Wilson then filed a second suit against the same parties after allegedly being excluded from an executive Board session. Id. Wilson’s claims were consolidated into a single suit. Id. In addition to suing the Board, Wilson hired a private investigator to investigate HCC, including to investigate whether a fellow trustee lived in the district which she represented. Id. He documented his grievances with HCC and the Board on a personal website which he maintained, referring to HCC and his fellow trustees by name. Id.

In January 2018, the Board held a vote for a resolution to publicly censure Wilson for his actions. Id. at 493–494. The censure resolution stated that Wilson acted inconsistently with the interests of HCC and of the Board and that he violated the Board’s bylaws. Id. at 494. The resolution further noted that censure was the most severe sanction that the Board could impose, rendering Wilson ineligible to hold Board officer positions and severely limiting his use of and access to Board funds. Id.

After the censure resolution, Wilson amended his first lawsuit to include claims that HCC and its trustees violated his First Amendment and Fourteenth Amendment rights. Id. He requested that the court enjoin the HCC and trustees from enforcing the censure. Id. Wilson also requested over $20,000—$10,000 for emotional distress, $10,000 in punitive damages to punish HCC for its allegedly exceptionally harmful behavior, and attorney's fees. Id. HCC and the trustees then removed the case to federal court based on federal question jurisdiction because federal courts have an interest in hearing cases which implicate the Constitution. Id. After the district court denied his motion to remand, Wilson dropped his claims against the individual trustees. Id.

HCC moved to dismiss the case for lack of subject matter jurisdiction, and the district court granted the motion. Id. Wilson appealed to the Court of Appeals for the Fifth Circuit. Id. The Fifth Circuit reversed the district court’s judgment and remanded Wilson’s damages claims to the district court. Id. at 500–501. Additionally, the Fifth Circuit dismissed Wilson’s requests for injunction as moot since Wilson was no longer a trustee by the time his appeal was heard. Id. at 501. The Fifth Circuit denied rehearing the case en banc by an equally divided 8-8 vote. Brief for Petitioner Houston Community College System at 7.

HCC appealed to the Supreme Court, and the Court granted certiorari on April 26, 2021.

Analysis 

WHETHER THE CENSURE IS PUNISHMENT COGNIZABLE UNDER THE FIRST AMENDMENT

Petitioner Houston Community College System (“HCC”) acknowledges that the First Amendment prohibits the government from retaliating against a speaker by taking “adverse action” against the speaker in response to his speech. Brief for Petitioner, Houston Community College System at 11. HCC denies, however, that a censure is an “adverse action” cognizable under the First Amendment. Id. According to HCC, a government action must be “regulatory, proscriptive, or compulsory in nature” to cause an injury under the First Amendment. Id. at 11–12. HCC maintains, by contrast, that the First Amendment provides no protection from the government’s “opinions and advice,” and that a censure is merely the statement of an “institutional opinion” with no coercive effect. Id. at 12. HCC argues that, although a censure is an “official rebuke,” it nonetheless leaves the censured person free to persist in her speech or conduct. Id. at 15. HCC contends that Wilson was not injured by the censure because the censure did not prevent him from performing his duties as a trustee or penalize him with an arrest or loss of employment. Id. At most, HCC asserts, the censure was “political peer pressure.” Id. HCC observes that in New York Times Co. v. Sullivan, the Supreme Court stated that elected politicians must be considered people “of fortitude, able to thrive in a hardy climate.” Id. at 17. To allow Wilson’s claim to proceed, HCC asserts, would be inconsistent with that principle. Id.

Respondent David Buren Wilson (“Wilson”) responds that the lower courts agree, and HCC does not contest, that a government act is “adverse” if it is a form of punishment, despite the fact that the Supreme Court has not explicitly defined an “adverse action.” Brief for Respondent, David Buren Wilson at 20. Wilson argues that, under this standard, a legislative censure is an “adverse action” because it is an inherently punitive government act. Id. at 21. Wilson asserts, first, that the punitive nature of the censure was clearly established at the time of the founding. Id. Wilson draws attention, for example, to James Madison’s statement in 1792 that “[i]t is in vain to say” that a censure “is no punishment.” Id. at 25. Wilson argues, second, that the punitive nature of the censure is well established in modern cases and contemporary legislative practice. Id. at 26. Wilson notes that the Supreme Court held in Ibanez v. Florida Department of Business & Professional Regulation that a professional licensing body violated the First Amendment by censuring a person for her protected speech. Id. at 27. Wilson also maintains that many local elected bodies acknowledge the punitive nature of the censure in their bylaws. Id. at 28. In defense of the proposition that the censure represents an adjudication of guilt, Wilson cites the bylaws of many local elected bodies requiring that the censure be imposed only after a “trial-like” procedure. Id. at 28–30. Wilson asserts these bylaws recognize the punitive nature of a censure by specifically prohibiting its use in response to a member’s protected speech. Id. at 44. Wilson adds that he suffered a pecuniary injury because of the Board’s censure. Id. at 31–33. In particular, Wilson argues that he was disqualified from receiving reimbursement for travel expenses and prevented from accessing a community affairs fund except with the approval of the entire Board. Id. at 32–33. Wilson argues that, due to these pecuniary deprivations, the Court can rule in his favor even if it does not accept that a censure is inherently punitive. Id. at 31.

CENSURE AS GOVERNMENT SPEECH

HCC argues that a censure is a form of government speech for which the government is immune from liability under the First Amendment. Brief for Petitioner at 30. Quoting Pleasant Grove City, Utah v. Summum, HCC states that a local elected body “has the right to speak for itself” and “is entitled to say what it wishes.” Id. Again quoting Summum, HCC asserts that “[i]t is the very business of government to favor and disfavor points of view.” Id. HCC argues that the censure should be considered a form of government speech for three reasons: (1) the censure was “integral to [the Board’s] ability to manage its own governance process”; (2) the censure is an essential means of clearly announcing the Board’s institutional opinion when more neutral measures would be inadequate; (3) and the censure is a vital means of providing the electorate with information about the political commitments of the Board and its members. Id. at 31–32. HCC claims that allowing Wilson’s claim to proceed would frustrate these important functions of the censure. Id. at 30–33.

Wilson counters that HCC’s invocation of the government speech doctrine depends on an untenable description of the censure as “speech” rather than punishment. Brief for Respondent at 36. Wilson argues that, had the Board wished to speak rather than to punish, it could have enacted a resolution of opinion rather than a censure. Id. at 36–37. Wilson asserts that the distinction between a censure and a resolution of opinion is well established in state and local practice. Id. at 37–38. Wilson notes, for example, the censure policy of the Oakland City Council, which prohibits the use of censure in response to protected speech but specifically authorizes the Council to respond with an opinion resolution. Id. Wilson argues that, thus, HCC “distort[s]” the government speech doctrine. Id. at 38. In particular, Wilson insists that HCC’s invocation of Summum is inapt because that case concerned a private party’s attempt to compel the government to give expression to the party’s views. Id. at 39. Wilson argues that Summum does not control this case because, unlike the private party in Summum, Wilson does not attempt to compel the government to express his views. Id. Instead, according to Wilson, here the government attempted to compel him to express the government’s views, an act for which Summum provides no immunity. Id.

TRADITIONAL USE OF THE CENSURE

HCC argues that allowing a censured member of an elected body to seek relief under the First Amendment would threaten a long tradition of allowing a legislature control over its internal affairs by means such as the censure. Brief for Petitioner at 18–19. HCC observes that the tradition of legislative self-discipline began with English Parliament in the sixteenth century. Id. at 19. HCC asserts that Parliament disciplined its members both for speech on the floor of the House and for conduct outside the House. Id. at 21. HCC argues that colonial legislatures followed the parliamentary tradition of self-discipline and that this tradition carried to the state and federal legislatures of the United States. Id. at 21–23. HCC observes, in particular, that the traditional prerogative of legislative self-discipline was formally recognized in Article I, Section 5 of the Constitution, which provides that Congress may “determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the concurrence of two thirds, expel a Member.” Id. at 22. HCC argues that the tradition of legislative self-discipline has been inherited by local elected bodies such as the Board in this case. Id. at 24. In particular, HCC asserts that the censure, as employed by local elected bodies, has been an important means of promoting engagement and debate about the speech or conduct of an elected member. Id. at 25. HCC concludes that prohibiting the use of the censure would be inconsistent with the central place of the censure in the traditional practice of state, federal, and local legislatures. Id. at 29.

Wilson responds, first, that HCC overstates the extent to which legislatures have traditionally depended on the censure as a means of self-regulation. Brief for Respondent at 42. Wilson observes that, of the 12,400 persons who have served in the United States House of Representatives and Senate, only 32 have been censured. Id. Wilson also asserts that only 21 of the state legislatures have ever used the censure. Id. at 42. The rareness of the censure, Wilson concludes, belies HCC’s argument that “freewheeling censures for extra-legislative speech” are an essential “part of the American tradition.” Id. Wilson argues, second, that when legislatures have used the censure, it has been for speech and conduct “within the legislative sphere.” Id. at 43. Wilson asserts that HCC has cited no case in which the federal legislature used the censure to discipline a member for speech that occurred “outside the legislative sphere.” Id. In addition, Wilson denies that the censure is widely used by local elected bodies to discipline members for extra-legislative speech. Id. at 43–44. Wilson argues that, of the 15 censures by local elected bodies cited by HCC, four concerned extra-legislative speech, and the rest have been the subject of federal litigation. Id. at 44. Wilson concludes, therefore, that “formal legislative censures for speech outside the legislative sphere are anomalous, objectionable, and not at all part of ‘settled and established practice.’” Id.

Discussion 

ABUSE OF THE FREE SPEECH DOCTRINE BY GROUPS OR BY INDIVIDUALS

The Texas Association of School Boards Legal Assistance (“TASB LAF”) and the National School Boards Association (“NSBA”), in support of HCC, note that censure is usually the only feasible form of expressing public disagreement with individuals acting against the best interests of a legislative body. Brief of Amici Curiae the Texas Association of School Boards Legal Assistance Fund and The National School Boards Association (“TASB LAF and NSBA”), in support of Petitioner at 22–23. TASB LAF and NSBA claim that censure is the only realistic alternative to the outright removal of an elected official, which is a cumbersome process. Id. Given these difficulties, TASB LAF and NSBA argue that affirming the Fifth Circuit’s holding would promote the abuse of retaliation claims. Id. at 23–24. TASB LAF and NSBA explain that this abuse would take the following form: whichever person or public body speaks to an issue first gets a protected right to their speech, while the other’s response is an unconstitutional retaliation. Id.

The American Civil Liberties Union (“ACLU”), Institute for Free Speech (“IFS”), and the Rutherford Institute (“RI”), in support of Wilson, claim that the concerns of those supporting reversal of the Fifth Circuit are a mischaracterization of the free speech issues at stake in this case. Brief of Amici Curiae American Civil Liberties Union, Institute for Free Speech, and the Rutherford Institute (“ACLU et al.”), in support of Respondent at 9. The ACLU, IFS, and RI suggest that reversal of the case would increase the ability of legislative bodies to punish individuals beyond “pure censure.” See id. at 8–9. Affirming the Fifth Circuit’s holding, according to the ACLU, IFS, and RI, would prevent legislative bodies from imposing formal and tangible disciplinary measures on individuals appropriately exercising their protected speech rights—or “censure plus.” Id. The ACLU, IFS, and RI ultimately accuse other interested parties to this case of dodging these issues in favor of defending “the unremarkable proposition that legislative bodies have a right to express their views.” Id. at 9.

PROTECTING THE AUTONOMY OF LEGISLATIVE BODIES

TASB LAF and NSBA, in support of HCC, further argue that boards need to be able to state their official positions when rogue board members compromise the core missions of the institutions which they represent. Brief of TASB LAF and NSBA, in support of Petitioner at 21–22. TASB LAF and NSBA note that rogue actors pose a liability risk when the actor’s unauthorized actions damage and disrupt a board’s operations. Id. TASB LAF and NSBA argue that if the Supreme Court affirms the Fifth Circuit’s ruling, boards may be left to answer for the actions of individuals that they wished to express disapproval toward, as they might be constitutionally barred from expressing their disapproval. Id. Similarly, the United States Department of Justice (“DOJ”) expresses concern that affirmance of the Fifth Circuit’s holding will upend centuries of legislative practice and erode the long-established autonomy of legislative bodies to speak out against unruly members. Brief for Amicus Curiae the United States as Amicus Curiae, in support of Petitioner, at 10–12. The rules which legislative bodies impose upon themselves, the DOJ argues, are effectively powerless unless paired with the power to punish disorderly members. Id. at 16. The DOJ also notes that this punishment has been extended to conduct occurring outside of official legislative meetings in the past. Id.

The ACLU, IFS, and RI argue that potential liability risks for legislative bodies do not trump the financial risk and penalty that individuals could endure on for exercising their free speech. Brief of ACLU et al., in support of Respondent at 11–12. According to the ACLU, IFS, and RI, reversal of the Fifth Circuit’s holding could create the risk of individuals incurring financial burdens, such as not receiving travel reimbursement, solely because of the content of their supposedly protected speech. Id. This form of indirect monetary penalty, the ACLU, IFS, and RI argue, could discourage discourse within legislative bodies and have a chilling effect on potential speech before it even occurs. Id. at 12. The ACLU, IFS, and RI further counter that a ruling in favor of Wilson need not disrupt the lengthy precedential history of legislative censure. Id. at 8–9. According to the ACLU, IFS, and RI, since this case is a “censure plus” case, the Court should be able to issue a ruling for Wilson without disrupting the way that legislative bodies govern themselves concerning issues of “pure censure.” Id.

Conclusion 

Written By:

Jack Delano

Bruno Babij

Edited By:

Micaela Lucero

Acknowledgments 

Additional Resources