Is Censuring a Legislator a First Amendment Violation?

The Houston Community College System Board of Trustees (HCC) was an elected nine-member body that censured one of their members in 2018 for inappropriate conduct. The trustee claimed that the reprimand infringed on his freedom to speak. The U.S. Supreme Court will now consider the merits in Houston Community College System, v. Wilson.

David Buren Wilson, Trustee of HCC objected at some HCC board members’ decisions. He also opposed its decision to support a Qatari campus. Wilson vented his anger in local media outlets and published a website listing his complaints. He also orchestrated a campaign of robocalls against the board and hired a private investigator who would investigate the HCC. Wilson sued the board four more times. He sued the board again for free speech after he was censured.

On April 2020, a panel of three judges from the U.S. Court of Appeals 5th Circuit agreed to Wilson that a reprimand against an official who speaks out about a matter of concern to the public is an actionable First Amendment claim. This ruling was not well received by eight additional 5th Circuit judges who later suggested that the case should have been heard again in a full sitting.

Edith Jones joined Judges Don Willett James Ho and Kyle Duncan to criticize the panel for violating freedom of speech. Jones stated that the First Amendment is not intended to restrict speech or debate in legislative bodies. Jones wrote that while fellow legislators can strike out at each other verbally, it is not illegal for them to exercise corporate authority and censure, or reprimand one another member of their ranks. However, such actions do not violate the First Amendment.

Ho stated that “the First Amendment guarantees freedom speech, but not freedom from speech.” Wilson was then instructed by him to not be such a crybaby. He then wrote that leaders don’t have to be booed. He added, “Leaders don’t fear being booed” and said that they won’t sue if they get booed.

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A majority of Supreme Court could well listen to those 5th Circuit dissenters. The HCC states in its principal brief that “any public speech made by a legislator could well lead to a public censure of the current body’s majority speaking in the name the institution.” If it does, the statements will be part of the cycle for speech and counterspeech which the First Amendment aims to promote, not limit.