To what extent may public officials sound off?


Board meeting

On March 24, 2022, the U.S. Supreme Court issued a unanimous decision of interest to public entities and individuals serving in public office. In Houston Community College System v. Wilson,[1] the Court declined to consider a community college trustee’s claims that non-verbal punishment issued by the board of trustees violated his First Amendment rights, holding that the board’s public censure of the trustee was not a materially adverse action that implicated a First Amendment retaliation claim. 

In 2013, David Wilson was elected to a six-year term to the board of the Houston Community College (HCC) system. By 2016, his frequent disagreements with board members resulted in the board publicly reprimanding him. In response, he paid for robocalls to constituents of other trustees to air his views, and hired an investigator to surveil a fellow trustee in an attempt to prove she didn’t reside in the jurisdiction. He also filed two civil suits, one alleging violations of the board’s bylaws and the other alleging the board had excluded him from a meeting where the subject of discussion was his first lawsuit. The board spent over $250,000 in defending Wilson’s claims.  

In 2018, the board again censured him and noted that his conduct was not consistent with the best interest of HCC, and was “not only inappropriate but reprehensible.” The board imposed penalties in addition to the verbal censure, and barred him from holding officer positions in 2018 or traveling on behalf of the board. It also recommended that he complete ethics and governance training. 

Wilson sued HCC and the trustees under 42 U.S.C. §1983, claiming First Amendment violations. The District Court granted HCC’s motion to dismiss, concluding Wilson lacked standing. The Fifth Circuit reversed. 

The Supreme Court’s analysis, reversing the Fifth Circuit, cites to a long history of censures, including against Congressional members who made objectionable remarks, commenting to the media, publicly disclosing confidential information and speech that could be damaging to national security. Wilson failed to provide any precedent that a purely verbal censure had the effect of being offensive to First Amendment principles. In effect, Wilson failed to demonstrate that the public entity took an adverse action in response to his speech that it would not have taken absent a retaliatory motive. While Wilson’s right to speak was not abrogated, his speech could not be used as a weapon to silence other representatives seeking to do the same. The censure did not disable him from performing his board work and was not defamatory; thus, it was not a materially adverse action deterring him from exercising his free speech rights.

The Court noted that rejecting this individual’s claims does not bar an instance when verbal reprimands or censures could give rise to a First Amendment retaliation claim, but, against the backdrop of increasingly volatile public “debate,” this case provides balance between public officials’ right to raise opposition in a manner that does not undermine the public entity’s legitimate work or its expectation that elected representatives will comport themselves in a manner becoming the office. 

[1] 2022 WL 867307

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