Elected Body’s Censure of Member for His Speech Doesn’t Violate First Amendment, but

According to today’s opinion Houston Community College System against Wilson:

[A]A plaintiff seeking a First Amendment claim for retaliation must demonstrate, among others, that the government took “an adverse action” to respond to his speech. This “wouldn’t have been taken without the retaliatory motive.” Some adverse actions may be easy to identify—an arrest, a prosecution, or a dismissal from governmental employment. “[D]”Eprivations less severe than dismissal” may sometimes be eligible. However, it is unlikely that even a slight frowning from a supervisor would be enough to make a First Amendment claim.

Lower courts use a variety of approaches to distinguish between material and immaterial adverse acts. Some asked whether the challenged government conduct could “chill an ordinary firmness person” from participating in future First Amendment activities. Others have inquired whether a retaliatory action “adversely affected the plaintiff’s … protected speech,” taking into account things like the relationship between speaker and retaliator and the nature of the government action in question. We believe, however, that this is only one way to assess the Board’s materiality in the present case.

First, Wilson was an elected official. In this country, we expect elected representatives 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. This Court explains it as follows:[w]Although there may be differences in the interpretations of First Amendment, “there is almost universal agreement” it was created to protect the freedom of discussion about governmental matters. If individuals consent to being a candidate for any public office conferred through the election of people, they must “pu[t] [their]character in question, to the extent it may respect [their]Fitness and qualification for the office”

The second is that the only negative action in question before us concerns a speech form from Mr. Wilson’s co-workers. It concerns conduct of public offices. A representative elected by the First Amendment has every right to freely discuss questions related to government policy. It cannot, however be used to silence any other representative who wishes to speak freely on the subject. You have the right to examine[e]Through “free communication”, public character and measures can be made. They may also serve as the “guardian for every other right.” The role of elected officials in the process is “all the more important that they can freely express themselves.”

These features are consistent with the case of Wilson. Accordingly to our case law, it is not possible for Board censure to be considered as materially adverse. Censure in question was speech made by elected representatives. This censure referred to the public conduct by another elected representative. All involved were equal members of the same deliberative committee. We also see that the censure didn’t prevent Mr. Wilson doing his job. It did not deprive him of any privileges and Mr. Wilson doesn’t claim it was defamatory. At least in these circumstances, we do not see how the Board’s censure could have materially deterred an elected official like Mr. Wilson from exercising his own right to speak….

We reject Mr. Wilson’s claim. However, this does not mean that verbal censures and reprimands cannot be used to bring about a First Amendment claim for retaliation. In some cases, government officials may reprimand, censure employees, students or licensees, which could materially limit First Amendment rights. See general Ibanez v. Florida Dept. Florida Department of Business and Professional Regulation, Bd. Accounting (1994) (licensing); Zauderer v.Supreme Court of Ohio Office of Disciplinary counsel (1985) (same); Holloman v. Harland (CA11 2004) (student); Kirby v. Elizabeth City (CA4 2004) (employee). We also do not discuss today any questions regarding legislative censures that are accompanied with punishments or those directed at private persons. Cf. Kilbourn v. Thompson), (distinguishing Congress’s authority to inflict specific punishments on its members from its ability to punish other nonmembers). We do not consider the First Amendment implications for censures and reprimands that government agencies issue against officials of government who are not members of such bodies. See, e.g., Jenevein v. Willing (CA5 2007); Scott v. Flowers (CA5 1990).

For cases such as these, history could have other lessons. Following the Whiskey Rebellion Federalists, supported by President Washington, introduced in Congress a proposal to decry “self-created society” that they felt had been “misrepresentative.”[ed]”The conduct of the Government.” James Madison and other opponents opposed the House of Representatives’ effort and defeated it. Madison made it clear that the power to censor in a Republic as ours is not held by the government over the people, but in the people. If the government has an interaction with private citizens as sovereign, employer or educator, it could be threatening a censure. This would raise First Amendment concerns. These cases, however, are different from this one.

This article will provide more information about the facts and Wilson’s actions that resulted in the censure.

Houston Community College System (HCC), a government entity, operates several community colleges throughout Texas. The Board of Trustees is composed of nine members. Each member of the board comes from one district and serves a six-year term. The Board was first elected in 2013 by Mr. Wilson. His tenure on the Board was turbulent from its inception. He disagreed strongly with his fellow colleagues on the direction and best interests of HCC. He also filed numerous lawsuits against the Board. In 2016, the Board reprimanded Wilson publically due to these growing disagreements. According to news reports, Mr. Wilson responded by promising that the Board’s action would “‘never … stop me.'”

Nor did it. Wilson accused the Board of violating their ethical guidelines and its bylaws in various media outlets over the next few months. In order to make his viewpoints known to others, Wilson organized robocalls to certain trustee constituents. A private investigator was hired by him to monitor another trustee. He apparently wanted to establish that she didn’t reside in the area where she was elected. Two new suits were also filed in state court. First, Wilson claimed that the Board had allowed a trustee to vote over videoconference in violation of its bylaws. Wilson filed the second lawsuit claiming HCC and Board “prohibited him” from his core tasks as a Trustee after his colleagues expelled him from the discussion of the case. HCC incurred over $20,000 in legal costs from these lawsuits. This was in addition to the more than $250,000 HCC paid for legal fees incurred as a result of Mr. Wilson’s previous litigation.

The Board adopted a second public resolution “cailing” Wilson at a meeting in 2018. It stated that Wilson’s actions were “not in accordance with the College’s best interests” and was “not only unsuitable, but also reprehensible.” …