U.S. Supreme Court

Does First Amendment bar public bodies from censuring members for critical speech? Supreme Court will decide

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The U.S. Supreme Court on Monday accepted a First Amendment case involving a college trustee who was censured after criticizing board actions and filing multiple lawsuits against the body.

The high court agreed to decide whether the First Amendment restricts an elected body’s authority to censure a member for their speech.

The court will rule in the case of community college trustee David Wilson, who was censured after he sparked “an increasingly chaotic series of events,” according to the cert petition filed by the Houston Community College System’s board of trustees.

“Wilson’s tenure was marked by immediate and constant turmoil,” the board’s cert petition said. “In a span of three years, he filed multiple lawsuits against HCC, helped others to file additional lawsuits, was accused of leaking confidential information, publicly denigrated HCC’s anti-discrimination policy, and sparked media attention for a laundry list of other controversies.”

Events “came to a head in 2017” when Wilson “orchestrated a wave of negative robocalls” in response to the board’s decision to fund an overseas campus, the cert petition said. “Shortly thereafter, Wilson also hired private investigators to probe the college and a fellow trustee (to find out where she lived) and filed yet another lawsuit against HCC—his fourth in four years—because a fellow trustee voted via videoconference. By that point, Wilson’s four lawsuits had cost HCC almost $300,000 in legal fees.”

Concerned that Wilson’s actions posed a threat to accreditation, the board publicly censured Wilson. In a pending lawsuit, Wilson alleged violations of the First Amendment and the equal protection clause of the 14th Amendment. The suit was removed to federal court.

The 5th U.S. Circuit Court of Appeals at New Orleans ruled for Wilson, holding that he may sue for a First Amendment violation under Section 1983 of the Civil Rights Act. The 5th Circuit decision created a circuit split, the cert petition said.

In his brief opposing cert, Wilson said his aim was to “root out what he saw as the unwise, unethical and often unlawful conduct of fellow board members.”

“Outside the legislative process, censures would be a proper response for such offenses as slander, true threats, incitements to insurrection and nonexpressive conduct,” Wilson’s brief said. “But they are not a proper response for core political speech.”

The censure made Wilson ineligible to serve as an officer of the board, to access his discretionary bank account, and to receive reimbursements for college-related travel.

“It also received significant public attention, and Wilson was not reelected to the board in the next election,” Wilson’s brief said.

The case is Houston Community College System v. Wilson.

The SCOTUSblog case page is here.

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