On March 24, 2022, the United States Supreme Court issued a decision in Houston Community College System v. Wilson, No. 20-804 (2022), holding that an elected member of a public body does not have a First Amendment claim arising from that body’s verbal censure of the member. The Court’s decision was limited to the narrow issue of whether the Board of Trustees of the Houston Community College System violated the First Amendment rights of David Wilson, a member of the Board who sued the Board and his fellow members, after it censured him for his extensive verbal dispute with the Board.
Following his election to the Board in 2013, Wilson engaged in an escalating and increasingly acrimonious series of disputes and disagreements with the Board, culminating in the Board’s adoption of a public resolution censuring Wilson and imposing certain penalties that limited his eligibility to run for reelection and ability to access Board funds. Wilson brought a claim under 42 U.S.C. § 1983 alleging that, among other things, the Board’s censure violated the First Amendment.
Although the District Court dismissed his claim, the Court of Appeals for the Fifth Circuit reversed, holding that Wilson had standing and that his complaint stated a viable First Amendment claim. The Supreme Court granted the Board’s petition for a writ of certiorari, limiting its review of the case to the issue of the “purely verbal censure”.
The Court applied its established requirements that in these cases the plaintiff prove that the Board took “adverse action” in response to the speech and that the adverse action was “material” – such as arrest, prosecution, or dismissal from government employment – rather than “immaterial”, such as a mere frown from a supervisor. The Court considered three important facts: (1) there is a long-accepted history of elected bodies censuring their members; (2) elected representatives are expected to shoulder a degree of criticism about their public service; and (3) the Board’s censuring is itself a form of protected speech that concerns the conduct of a public official. Given these facts, the Court therefore held that the Board’s verbal censure was not a materially adverse action and, consequently, that the Board did not violate the First Amendment.
The Court was careful to limit the scope of its holding. The Court cautioned that it was not ruling that verbal reprimands or censures can never give rise to a First Amendment retaliation claim and suggested that whether the plaintiff is a student, employee, licensee, or private individual may change the analysis. The Court also limited its decision to an elected body’s speech, such as reprimands and censures, and pointed out that it was not addressing punishments or sanctions, such as fines or expulsion.
This decision is important for elected public boards and committees when dealing with the speech of individual members and allows the use of verbal censure without risk of First Amendment liability. That said, in a given case it is essential that the public body seek the advice of counsel to determine whether the content of the censure may nonetheless create a risk of liability, or whether other responses to the member’s speech are permissible.
If you have questions about the content of this update or implications for elected bodies, please contact us. We are pleased to assist publicly elected bodies with potential First Amendment issues.
This update is provided for informational purposes only and should not be considered legal advice.