U.S. Supreme Court: Board May Censure (But Not Censor) Board Member Speech

The U.S. Supreme Court unanimously ruled that a college board of trustees did not violate a board member’s free speech rights by censuring him and temporarily barring him from board officer positions. Houston Community College System v Wilson, Docket No. 20-804 (March 24, 2022).

David Wilson was an elected official on the Houston Community College System’s Board of Trustees. He was not, however, popular with his fellow trustees. Wilson frequently disagreed with them, criticized the board to the media, hired a private investigator to surveil another trustee’s residence, and arranged robocalls to other trustees’ constituents to publicize his opposing views. He even filed two lawsuits against the board for failing to follow its own bylaws, resulting in significant legal fees for the College.

In response, the board adopted a resolution that censured Wilson for “reprehensible” conduct, prohibited him from holding board officer positions for a calendar year, and declared him ineligible for college-related travel reimbursement. In response, Wilson amended one of his pending lawsuits against the board, adding that the board’s actions violated his First Amendment free speech rights.

The Fifth Circuit Court of Appeals dismissed Wilson’s claims involving board officer positions and travel reimbursement because they were “privileges” not protected by the First Amendment. But the Fifth Circuit refused to dismiss Wilson’s censure claim, reasoning that reprimanding a public official for speech addressing a matter of public concern was actionable under the First Amendment. The board appealed to the U.S. Supreme Court.

The U.S. Supreme Court reversed the Fifth Circuit’s censure-related ruling, concluding that a censure of a public official does not violate the First Amendment. The Court acknowledged that the First Amendment normally protects against prior speech restraints and retaliatory actions. But the Court highlighted the longstanding practice, dating back to colonial times and continuing in Congress, of elected bodies censuring their members.

The Court further addressed Wilson’s retaliation claim. To prevail on that claim, Wilson had to show that the board took an “adverse action” in response to his speech that “would not have been taken absent the retaliatory motive.” The Court reasoned that the censure did not prohibit Wilson from speaking on matters of government policy or from carrying out his duties as a trustee and thus he suffered no “adverse action.”

Finally, the Court considered the First Amendment rights of the board as a whole and of other individual trustees and concluded that Wilson’s speech rights could not be used “as a weapon to silence other representatives seeking to do the same.”