COLLEGE CENSURE-SHIP? CHALLENGING THE 1st AMENDMENT
First Amendment protection of the freedom of speech is perhaps the most recognized and seemingly fundamental protection offered to citizens of the United States. The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech.”[i] Its purpose is to allow all citizens to voice their opinions without worry of punishment or objections by listeners.[ii] But what happens when protecting one person’s First Amendment Right infringes on another person’s First Amendment Right? Such is the question currently being presented to the Supreme Court of the United States (SCOTUS) in Houston Community College System v. Wilson.[iii]
Houston Community College System (HCC) is a public institution governed by a board of nine trustees representing differing districts.[iv] “The Board has sweeping powers and near-absolute control of the college system, including authority to levy taxes, exercise eminent domain, hire and fire the chancellor, establish and control the college system’s budget and finances, sue and be sued, and control college system’s police force.”[v]
Petitioner David Wilson (Wilson) contends that he ran for a board position to root out corruption and address the poor financial decisions that the board had made over the course of the past decade.[vi] After successfully winning a position as a trustee, he embarked on his quest to address the issues that had plagued the board. In this time, Wilson took various interviews with the local press and radio where he publicly questioned board members' decisions and expressed his disdain for what he believed was a corrupt system.[vii] Further, he hired a private investigator to “explore the malfeasance of the Board.”[viii] After irritating the board with these acts, Wilson was excluded from a private board meeting.[ix] Wilson responded by filing suit against the board.[x]
Fed up with Wilson’s antics, the board adopted a resolution formally censuring Wilson under the board’s disciplinary powers.[xi] The resolution of censure also prohibited Wilson from running for election to officer positions, receiving reimbursement for college-related travel, and using funds in his community affairs account without receiving approval from the entire Board.[xii] Further, the censure concluded, “Mr. Wilson is directed by the [b]oard to immediately cease and desist from all inappropriate conduct” and that “any repeat of improper behavior by Mr. Wilson will constitute grounds for further disciplinary action.”[xiii] Wilson then amended his previous suit to include a claim under 42 U.S.C. § 1983,[xiv] arguing the censure violated his First Amendment.[xv]
Wilson contends that “a governmental body may not discipline [him] with a formal censure and revocation of [his] privileges of office in response to constitutionally protected extra-legislative speech.”[xvi] Thus, Wilson’s argument contains two sub-arguments; (1) his speech is extra-legislative, and (2) the censure is punitive.
Wilson maintains that these arguments must be taken in tandem – that he cannot be punished for making extra-legislative speech. First, Wilson concedes that legislative speech is subject to reprimand by fellow members, but the First Amendment protects extra-legislative speech.[xvii] Wilson cites Wood v. Georgia stating, “that the role elected officials play in our society makes it all the more imperative that they be allowed to freely express themselves on matters of public concern.”[xviii] Wilson’s argument is also one of common sense. Unfettered censure of political figures expressing a disfavored or minority opinion would have a severe chilling effect on speech.
Second, Wilson argues that courts and other authorities have recognized censure as a punishment. He suggests that “public censure of a member is a pronounced punishment reserved only for the most serious offenses and is aimed at reformation of the person and prevention of further offending acts.”[xix] Even if the censure itself is not enough to be considered a punishment, Wilson argues that the censure, which included revoking his privileges as a trustee, is punitive.[xx]
Taken together, Wilson looks to Bond v. Floyd[xxi] where SCOTUS assessed whether the Georgia House of Representatives could exclude a member in response to the member’s outspoken criticism of the Vietnam War. In Bond, the Court found that the House could not formally punish a member with exclusion for “exercising the right of legislators to dissent from national or state policy or that of a majority of his colleagues.”[xxii] While Wilson concedes that censure is not as severe as exclusion, he urges the Court to look at the functional aspects of punishments. The censure itself added revocations of Wilson’s privileges as a trustee, and warning to cease and desist all adverse behavior function the same as the expulsion of the member in Bond – to penalize and chill objectional speech.[xxiii]
HCC counters Wilson’s argument, suggesting that the censure is not punishment and that without the ability to discipline Board members, its own speech will be chilled.[xxiv] HCC argues that its censure was not a punishment but simply “a pointed expression of the [Board’s] official disproval and its desire that, as a fellow member of the Board, he should speak differently in the future.”[xxv] Further, HCC contends that the censure that inflicts no injury is not actionable.[xxvi]
Last, HCC argues that it has the authority to censure Wilson and that without this authority, it loses its own right to speak.[xxvii] A governmental body has to have the ability to speak for its self,[xxviii] which sometimes means promoting a program or taking a position.[xxix] HCC thus contends that without this ability to speak its own policy and position, its own First Amendment protections are violated.
HCC’s argument is limited in two ways. First, while the board argues that the censure was not punitive, it enacted the censure of Wilson under its disciplinary powers. Second, HCC contends that without the ability to censure, it is, in effect, silenced against Wilson. Both of these claims are severely limited because HCC had the ability to make an official Board statement that would reproach Wilson's statements without disciplining him.[xxx] We will see how the Supreme Court assesses this alleged limitation soon, as oral arguments are scheduled for November 2, 2021.
[i] U.S. Const. amend. I.
[ii] Transcript of Oral Argument at 61, B.L. by and through Levy v. Mahanoy Area School District, 964 F.3d 170 (Apr. 28, 2021) (No. 20-255).
[iii] Hous. Cmty. Coll. Sys. v. Wilson, No. 20-804, U.S. LEXIS 5320 (Oct. 18, 2021).
[iv] Brief for Petitioner at 2, Hous. Cmty. Coll. Sys. v. Wilson, No. 20-804, (US Oct. 18, 2021).
[v] Brief for Respondent at 3, Hous. Cmty. Coll. Sys. v. Wilson, No. 20-804, (US Oct. 18, 2021).
[vi] See Id. at 4-5.
[vii] See Id. at 6-7.
[viii] Id. at 7.
[ix] Id.
[x] Brief for Respondent at 3, Hous. Cmty. Coll. Sys. v. Wilson, No. 20-804, (US Oct. 18, 2021).
[xi] Supra, note 4 at 4.
[xii] See Id. at 5.
[xiii] Supra, note 5 at 9.
[xiv] 42 U.S.C. § 1983 (2018) Providing relief for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.”
[xv] Supra, note 5 at 9.
[xvi] Id. at 10.
[xvii] Supra, note 5 at 18.
[xviii] Supra, note 5 at 17 quoting, Wood v. Georgia 370 U.S. 375, 395 (1962)
[xix] Supra, note 5 at 17 quoting, Demeter’s Manual of Parliamentary Law and Procedure ch. 19, II at 260 (1969).
[xx] Supra, note 5 at 31.
[xxi] 385 U.S. 116, 118 (1966).
[xxii] Supra, note 5 at 17 quoting, Bond v. Floyd 385 U.S. 116, 132 (1966).
[xxiii] See generally Brief for Respondent at 35-36, Hous. Cmty. Coll. Sys. v. Wilson, No. 20-804, (US Oct. 18, 2021).
[xxiv] Supra, Note 4.
[xxv] Id. at 12.
[xxvi] Id.
[xxvii] Id. at 29.
[xxviii] Id. at 30, quoting Bd. of Regents of Univ. of wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000).
[xxix] Brief for Petitioner at 2, Hous. Cmty. Coll. Sys. v. Wilson, No. 20-804, (US Oct. 18, 2021) quoting Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 208 (2015).
[xxx] Supra, Note 4 at 14.