Supreme Court finds censuring a board member didn’t violate First Amendment

The Supreme Court ruled last week that a college board’s censure of a trustee did not violate the First Amendment. David Wilson was an elected member of the Board of Trustees of the Houston Community College (HCC) System Board. In his time as trustee, Wilson brought several lawsuits challenging the Board’s actions, in addition to publicly criticizing other trustees alleging they had violated their ethical rules and bylaws. This resulted in the Board adopting a public resolution verbally censuring Wilson, finding that his conduct was “not only inappropriate, but reprehensible.” The Board also deemed him ineligible for holding Board officer positions and travel reimbursements. Wilson filed suit against HCC, alleging their censure violated his First Amendment right to free speech.

In a unanimous ruling, Justice Gorsuch wrote that when faced with a dispute about the Constitution’s meaning or application, long settled and established practice is a consideration of great weight and “elected bodies in this country have long exercised the power to censure their members.” Wilson needed to show the Board’s adverse action was retaliatory for his complaints about the Board, and the Board would not have taken this action otherwise. Gorsuch reasoned that the censure at issue was a form of speech by elected representatives concerning the conduct of another representative. Everyone involved was an equal member of the same body and the censure did not prevent Wilson from doing his job, nor did it deny him any privilege of office. Wilson had a right to speak freely, but the First Amendment “cannot be used as a weapon to silence other representatives seeking to do the same.”

The Court made clear that this ruling was a narrow one and not intended “to suggest that verbal reprimands or censures can never give rise to a First Amendment retaliation claim."