Houston Community College v. Wilson Reaffirms That Elected Officials Have Free Speech Rights

Seth Barrett Tillman (me) and I wrote, during President Trump’s second impeachment trials, that elected officials, such as the President, still had their First Amendment right of freedom to speech. (See here., here., here., and here. Many times, we cited Chief Justice Rehnquist’s book on presidential impeachments. Grand Inquests. He noted that during conflict times, it was “a very common thing to do.”[p]The Constitution’s provisions for judicial independence or the provision guaranteeing free speech to President and others suddenly become obstacles to the achievement of the greater good. However, critics of the Constitution argued that some elected officials were denied First Amendment rights. Their speech was therefore subject to the First Amendment. Pickering/Garcetti line of cases. It would mean that elected officials will be treated the same as civil servants.

Houston Community College against WilsonThe Supreme Court has affirmed the free speech rights of elected officials. Justice Gorsuch’s unanimity majority opinion is a reflection of this position, and does not appear controversial.

First, the Court directly stated that elected officials still have free speech rights. They must be accountable to their constituents and exercise these rights.

First of all, Wilson was elected to office. In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers—to allow them to keep exercising their freedom of speech rights regardless of the level or severity of criticism. This Court put it this way: “[w]Although there may be differences in interpretations of the First Amendment’s meaning, “there is almost universal agreement that the amendment was passed to protect the freedom of discussion about governmental matters.” Mills v. Alabama, 384  U. S. 214, 218 (1966). If individuals consent to being candidates for any public office conferred through the election of people, they must also “puzzle”.[t] [their]In issue character, so it can respect [their]Fitness and qualification for the job Weiß v. Nicholls, 3 How. 266, 290 (1845). 

Mills v. AlabamaThis case doesn’t directly support the notion that elected officials can retain their right to free speech. However, the Court made it clear: elected officials are allowed to “continue exercising [their] free speech rights” when critics come.

Gorsuch adds to this second argument. He explained that elected Houston Community College Board Board members have the right to exercise their free speech rights and censure Wilson.

Second, we are only addressing an adverse speech made by Mr. Wilson’s fellow lawmakers. This is about the conduct in public office. An elected representative such as Mr. Wilson has the First Amendment right to freely discuss questions of government policy. However, the weapon cannot be used to silence others who wish to make similar statements. You have the right to examine[e]Through “free communication”, public characters and measurements” could be the same as “guardian” of any other right. Madison’s Report on Virginia Resolutions (Jan. 7, 800), 17 Papers of James Madison 345, D. Mattern, J. Stagg., J. Cross, & S. Perdue eds. 1991). The role of elected officials in this process makes it “all the more important that they are allowed to freely express their opinions.” Republican Party of Minn. v. Weiß, 536 U. S. 765, 781 (2002).

Another important point is that the First Amendment allows politicians to make criticisms of other politicians. The ad-hoc testing of balance is not applicable to their speech. Pickering.

Gorsuch’s analysis acknowledges that elected officials have to answer to voters and not bureaucrats. Public criticism is expected of elected officials. But, the most important thing is that elected officials can still respond to criticisms from the public.

Gorsuch repeatedly stressed that this case was important elected officials:

This case demonstrates that Mr. Wilson is not a victim of a materially unfavorable action. Censure was an act of speech. Representatives elected. It was about the conduct of another public official Elect a representative. Everybody was equal in membership of the same body. 

This First Amendment right is not affected by being elected to office.

Tillman and my January 2020 writing:

It is wrong to compare the President (an elected official) to a civil servant or full-time permanent employee. While elected officials set policy, civil servants or other public employees implement those policies. The case law permits the civil servants’ speech to be muted so that the government-as-employer can carry out its policy goals. The goal is to ensure that elections remain meaningful, and that the government-as-employer can put forward its message, notwithstanding its employees who may take a different view. The suggestion that there be no statewide elections is not supported by us. Pickering line of cases was correctly or incorrectly decided. This is a more narrow view: Pickering offers civil servants some free speech protections, but it also allows the government-as-employer to impose some free speech limitations on its civil servants. These free speech restrictions make no sense when they are applied to elected officials.

It is my opinion Wilson v. HCCThis provides support to our position.