The Supreme Court this morning, in a unanimous opinion in Houston Community College System v. Wilson written by Justice Neil Gorsuch, concluded that a legislative body passing a verbal censure of one of its own members did not violate the First Amendment. The case was brought by David Wilson, an elected member of the Board of Trustees of the Houston Community College System. It reached the Court in an awkward posture: The board had not only censured Wilson for filing lawsuits and making accusations against the board, but also imposed more serious sanctions such as barring him from running for a seat again or seeking reimbursements; but the parts of Wilson’s case challenging those sanctions had been thrown out of the case in the lower courts, leaving only the question of his censure.
The Court decided the case on two grounds. First, looking at history, Gorsuch noted that colonial, federal, state, and local legislatures have a long tradition of censuring their members (one cited example involved Senator Joseph McCarthy’s 1954 censure by the Senate) “not only for objectionable speech directed at fellow Members but also for comments to the media, public remarks disclosing confidential information, and conduct or speech thought damaging to the Nation.” While some of that evidence long postdates 1791, Gorsuch noted — with a quotation from James Madison — that “when faced with a dispute about the Constitution’s meaning or application, long settled and established practice is a consideration of great weight. . . . Often, a regular course of practice can illuminate or liquidate our founding document’s terms & phrases.” (Quotations and citations omitted.) The Court found the evidence of legislative power to censure without First Amendment restriction to be unbroken and unanimous back to colonial times:
We have before us no evidence suggesting prior generations thought an elected representative’s speech might be “abridg[ed]” by that kind of countervailing speech from his colleagues. . . . Instead, when it comes to disagreements of this sort, history suggests a different understanding of the First Amendment—one permitting free speech on both sides and for every faction on any side. (Quotations and citations omitted).
(The Court’s opinion noted that it was not ruling on the power to expel members of a legislative body, which implicates a distinct history and a distinct body of law.)
Second, the Court concluded that merely being censured verbally would not be a “material adverse” action amounting to retaliation, because it would not “chill a person of ordinary firmness” from speaking out. In other words, strap on your big boy pants, you’re a public official:
Mr. 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. . . . The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy. But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same…Given these features of Mr. Wilson’s case, we do not see how the Board’s censure could qualify as a materially adverse action consistent with our case law. The censure at issue before us was a form of speech by elected representatives. It concerned the public conduct of another elected representative. Everyone involved was an equal member of the same deliberative body. As it comes to us, too, 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.
As a matter of free speech philosophy, this is the right answer: Speech should be met with more speech. Criticism alone is not censorship. The censure was not a boycott, a deplatforming, a mob shouting down a speaker, or an effort to get Wilson fired by some third-party employer. But, Gorsuch cautioned, it could be a different case when the government is using speech to silence people who can’t fight back against the state:
In rejecting Mr. Wilson’s claim, we do not mean to suggest that verbal reprimands or censures can never give rise to a First Amendment retaliation claim. It may be, for example, that government officials who reprimand or censure students, employees, or licensees may in some circumstances materially impair First Amendment freedoms…When the government interacts with private individuals as sovereign, employer, educator, or licensor, its threat of a censure could raise First Amendment questions. But those cases are not this one.