The Supreme Court of the United States recently provided a decision in a First Amendment retaliation claim.  In the case, the board of trustees of the Houston Community College (HCC) censured David Wilson, one of its board members, and barred him from holding officer positions on the board or from receiving travel reimbursements. Wilson alleged that the censure violated his First Amendment right to free speech. The district court ruled against him, and the U.S. Court of Appeals for the Fifth Circuit reversed. This court reversed the decision of the Fifth Circuit.

As a board member, Wilson often disagreed with the board of trustees about the best interests of HCC.  Wilson brought multiple lawsuits challenging the board’s action, costing HCC thousands in legal fees. Wilson spoke to the media multiple times and alleged that the board violated its bylaws and ethical rules. He hired a private investigator to follow a fellow trustee to see if they lived in the area they were elected from. He arranged robocalls to fellow trustees to express his views. After the many comments and actions from Wilson, the board adopted two resolutions censuring Wilson. After the second resolution, Wilson added a First Amendment complaint to one of his existing lawsuits against HCC and, after winding down the legal road, ended in the Supreme Court of the United States.

The court did not provide an explicit definition of “censure,” but Merriam Webster defines “censure” as a judgment involving condemnation; the act of blaming or condemning sternly; or an official reprimand. The board’s censure resolutions stated Wilson’s conduct was “not consistent with the best interests of the college” and “not only inappropriate, but reprehensible.”  The board also made Wilson ineligible to be a board officer, prohibited him from receiving travel expenses and required Wilson to receive training in governance and ethics. 

The court went through the history of censures, how they were used appropriately and when they were used inappropriately (e.g. not allowing an elected official to take office due to views on the Vietnam War). Then the court analyzed whether the adverse actions were material or immaterial and focused its analysis on two factors. First, Wilson was an elected official. The court stated that elected officials should be prepared to shoulder criticism both from peers and constituents and have thicker skin and continue to exercise their free speech rights when the criticism comes. 

Second, the court found that the only adverse action at issue was speech from colleagues that concerned the conduct of public office. The court acknowledged Wilson’s right to speak freely on questions of government policy, but also acknowledged that his right should not be used as a weapon to silence other representatives seeking to do the same. The court continued that, “everyone involved was an equal member of the same deliberative body. The censure did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office, and Mr. Wilson does not allege it was defamatory.” Hence, the court found that the board’s censure did not qualify as a materially adverse action capable of deterring Wilson from exercising his own right to speak and rejected his First Amendment claim. 

As always, the OSBA division of legal services continues to monitor important case information and will post information as it becomes available. If your board is contemplating a censure, we encourage you to work with your board counsel to review the potential impacts of this decision. If you have questions, please contact the division at 1-855-OSBA-LAW.

Posted by Ralph Lusher III on 3/25/2022