March 28, 2022
In our current climate of political polarization, there are few things on which the nine Justices on the United States Supreme Court agree. However, this past week, they unanimously sided with local governments in upholding a local board’s ability to publicly censure one of its own members. The March 24, 2022 decision held that a censure or reprimand from a governmental body to one of its members does not violate that member’s First Amendment rights.
Justice Neil Gorsuch delivered the Court’s opinion in Houston Community College System v. David Buren Wilson, a case that examined whether the Board of Trustees of the Houston Community College’s purely verbal censure of member David Wilson ran counter to freedom of speech considerations. As correctly predicted in the September 29, 2021 Elrod Friedman client alert tracking this case, the Court rejected the First Amendment argument of plaintiff Wilson because doing otherwise would imperil the doctrine of government speech.
The facts of this case are described in detail in the September 29 Elrod Friedman client alert. In summary, Board Trustee Wilson’s relationship with other members of the Board had been fraught with conflict since his election to the Board in 2013. It included multiple costly (and unsuccessful) law suits initiated by Wilson challenging Board actions, disparaging radio interviews, critical robocalls to constituents, and a public web site maintained by Trustee Wilson in which he criticized other members of the Board by name. In response, the Board adopted a resolution in 2018 publicly censuring Trustee Wilson, finding that he acted in a manner “not consistent with the best interests of the College” and that he was “not only inappropriate, but reprehensible.” Trustee Wilson’s complaint against the Board claimed that Board’s censure violated his First Amendment freedom of speech, and sought injunctive relief and damages for mental anguish and reputational injury. Because the complaint was brought pursuant to 42 U.S.C. § 1983, attorney’s fees were also at stake. In a decision that surprised many in the worlds of municipal and constitutional lawyers, the Fifth Circuit Court of Appeals ruled in favor of Trustee Wilson.
In reversing the Fifth Circuit, the Supreme Court relied on the long-established doctrine that “the power of assemblies to censure their members was more or less assumed.” The opinion provided numerous instances, dating back to this nation’s colonial period and as recently as 2016, in which legislative bodies at various levels of government exercised their censure powers against their own members. The Court went on to find that “[e]lected representatives are expected to shoulder a degree of criticism about their public service from their constituents and their peers—and to continue exercising their free speech rights when the criticism comes.” The Court also noted that the Board’s censure of Wilson was itself a form of free speech. As the First Amendment ensures that Wilson has the right to speak freely on matters of government policy, his right to free speech cannot then be used to silence the Board in its efforts to do the same.
In holding that free speech considerations were not violated, the Court was careful to draw a distinction between the facts of this case and instances in which a government body censures a public official who is not a member of that body, or in which the censure accompanies some additional punishment, or when the censure is aimed at a private individual.
As noted in the September 29 Elrod Friedman client alert, this case is of particular importance to local governments in Illinois because censure and reprimand are essentially the only local options available to municipal boards and councils for disciplining local elected officials. Impeachment or removal of elected officials from their position on the board or council is, at least for now, not an option in Illinois.
The full text of the Supreme Court decision can be found at this link. For more information about this case, contact Martin Martinez or any Elrod Friedman attorney.