September 29, 2021
BY PETER FRIEDMAN
On November 2, 2021, the US Supreme Court will hear oral arguments in Houston Community College System v. David Buren Wilson, a case that will decide whether the First Amendment restricts the authority of an elected body to censure one of its members in response to the member’s speech.
The case comes from the chaotic tenure of David Wilson as a member of the Houston Community College Board of Trustees. Elected in 2013, Wilson voiced concerns that fellow Board trustees were violating the Board’s bylaws and otherwise not acting in the best interests of the Community College. When the Board voted to fund a campus in Qatar, Wilson publicly disparaged the decision in a local radio interview and arranged for negative robocalls to be placed to the constituents of the trustees supporting the funding. When the Board allowed one trustee to vote via videoconference, Wilson publicly asserted a violation of the Board’s bylaws. Wilson maintained a public website on which he published his concerns and referred to fellow Board members by name. He also hired a private investigator to investigate the Board and to determine whether one fellow trustee did in fact reside within the district in which the trustee was elected. Wilson filed four different lawsuits against the Community College and its Board.
On January 18, 2018, the Board adopted a resolution publicly censuring Wilson for his actions. The Board stated that Wilson had acted in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws and Code of Conduct.” The resolution directed Wilson to “cease and desist from all inappropriate conduct” and warned that “any repeat of improper behavior by Mr. Wilson will constitute grounds for further disciplinary action of the Board” (although what that further action would have been is unclear; the Board also stated that the censure was the “highest level of sanction available” since Wilson was an elected official and could not be removed by the Board). The resolution also disqualified Wilson from holding a Board officer position and from reimbursements for college-related travel, and required Wilson to obtain special Board approval to spend funds in his community affairs Board account.
Wilson responded by asserting a claim in federal district court that the censure violated his First Amendment rights and requested damages. The court rejected the claim, holding that the censure was merely a statement of the Board’s disapproval and did not prevent Wilson from continuing to attend Board meetings, expressing his opinions, and carrying out his official duties. Wilson appealed that decision, and the U.S. Court of Appeals for the 5th Circuit reversed.
The appellate court found that Wilson’s allegation that the public censure caused him “mental anguish” was equivalent to the reputational injury that is required to confer standing under the First Amendment. The court thus concluded that “a reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim.”
The Supreme Court’s decision in this case is important to Illinois local governments. Censure and reprimand are essentially the only local options available to discipline local elected officials; removal in these situations is not an option under Illinois law. Numerous Illinois municipalities over many years have adopted resolutions of censure or reprimand to members for a variety of actions. These types of legislative enactments would be called into question if the Supreme Court determines that censures and reprimands can violate a member’s First Amendment rights.
Such a decision would also imperil the doctrine of “government speech” and previous court decisions that have made clear that “[a] government entity has the right to ‘speak for itself’” and “‘to say what it wishes,’” and that such governmental speech is “‘exempt from First Amendment scrutiny’” under the Free Speech Clause. Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) (citations omitted).
A decision in this case is expected in the Spring of 2022.