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For years, the elected Board of Trustees of the Houston Community College System (HCC) and one of its members, Trustee David Wilson, enjoyed what could at best be described as an acrimonious relationship. Wilson often objected to the Board’s decisions as not being in the best interests of HCC. He brought multiple lawsuits challenging the Board’s actions. These led the Board to reprimand Wilson publicly, after which Wilson promised the Board reprimand would “never … stop me.”

And it didn’t. Afterward, among other things, Wilson contended in the media that the Board was violating its bylaws and ethical rules, employed robocalls to constituents of certain trustees, and hired a private investigator to surveil another trustee based on his belief that she did not live in her elected district.

Finally in 2018, at its wits end, the Board of Trustees adopted a formal resolution censuring Trustee Wilson for conduct “not consistent with the best interests of the College” and “not only inappropriate, but reprehensible.” The Board censure included restrictions on Wilson making him ineligible for “election to Board officer positions for the 2018 calendar year” or “reimbursement for any College-related travel,” and that Board approval would be required before he could use “funds in his Board account for community affairs.” The Board further suggested that Mr. Wilson “complete additional training relating to governance and ethics.”

Wilson sued (actually, amended his existing lawsuit against) HCC claiming that the Board’s censure violated the First Amendment. He asked the court for injunctive and declaratory relief as well as damages for mental anguish, punitive damages, and attorneys’ fees.

The District Court dismissed Wilson’s complaint but the Fifth Circuit Court of Appeals found that (1) Wilson’s complaint stated a viable First Amendment claim concluding that a verbal “reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under § 1983” but (2) the Board’s “nonverbal” punishments (limiting Wilson’s eligibility for officer positions and his access to certain funds) did not violate Wilson’s First Amendment rights because he had no “entitlement” to those privileges. HCC asked the United States Supreme Court to grant certiorari, which it did.

The Supreme Court first noted that Wilson had not properly preserved his claim that the nonverbal sanctions of the Board were violative of his rights and so, let stand the Court of Appeals’ decision that it did not. As a result, the “narrow” issue before the Court was: “Does Mr. Wilson possess an actionable First Amendment claim arising from the Board’s purely verbal censure?”

The answer was a unanimous “No.” A public censure does not amount to a First Amendment violation. The history of public censures by elected bodies in the U.S., dating back as early as colonial times, demonstrated “little reason to think the First Amendment was designed or commonly understood to upend this practice.” No cases were found or cited to the contrary. Instead, the Court’s own prior cases supported the conclusion that a public censure does not violate the First Amendment, clarifying that to show a First Amendment retaliation claim, a plaintiff must demonstrate the government “took an adverse action in response to his speech that would not have been taken absent the retaliatory motive.” The Court noted that “no one would think that a mere frown from a supervisor constitutes a sufficiently adverse action to give rise to an actionable First Amendment claim.”

The Court found it important that the censure involved an elected official because people who decide to be a candidate for an elected public office necessarily put their character in issue—at least as far as their fitness and qualifications for office. Also important is that the very adverse action at issue was itself a form of speech from Wilson’s fellow trustees concerning his public office. The First Amendment cannot simultaneously protect the speech of one member of an elected body while depriving equal members of the same protected speech. The Court noted that censure was a form of speech by the elected members "seeking to discharge their public duties" and Wilson did not allege the censure prevented him from doing his job nor materially deterred him from continuing to speak his mind.


The Court added a couple of caveats. First, although rejecting Wilson’s claim, the Court was not suggesting that verbal reprimands or censures could never give rise to a First Amendment retaliation claim citing examples of government officials reprimanding or censuring students, employees, or licensees in circumstances that materially impair First Amendment freedoms. Second, this case is only about the public censure of one member of an elected body by other members of the same body. It does not involve expulsion, exclusion, or any other form of punishment.

The Opinion in Houston Community College System v. Wilson, --- S.Ct. ---- (2022) can be found here:https://www.supremecourt.gov/opinions/21pdf/20-804_j426.pdf

In City of Maryland Heights v. State, 638 S.W.3d 895 (Mo. 2022), officials of political subdivisions in St. Louis County alleged that Section 115.646 RSMo., prohibiting use of public funds in support or opposition to ballot measures and candidates (the “Advocacy Prohibition”), violated the First and Fourteenth Amendment of the United States Constitution. In the circuit court, plaintiffs prevailed as the trial court held that the Advocacy Prohibition violated the plaintiffs’ right to free speech as it regulated speech based on content and was not narrowly tailored to serve a compelling state interest. The trial court also held that the Advocacy Prohibition was void for vagueness as certain terms within the statute were ambiguous.


However, the Missouri Supreme Court reversed the ruling, holding that the Advocacy Prohibition was not a regulation of the speech of public officials but rather a regulation on the use of public funds. The Missouri Supreme Court held the law simply did not implicate the First Amendment rights of the plaintiffs because the officials have no indefeasible right to use public funds to subsidize their speech. The Court also found that the statute is not void for vagueness, as the terms in question—specifically “ballot measure,” “public funds,” when those public funds are spent “directly” by an official, and “advocate, support, or oppose” when used in the statute—are commonly understood by a person of ordinary intelligence. “While there may be uncertainty in cases near the margin, complete specificity is not required,” the Court said.


The result of this case is that the Advocacy Prohibition is still in effect and enforceable against municipal officials. Therefore, officials should continue to be vigilant regarding the expenditure of public funds to “advocate, support, or oppose” any ballot measures or candidates. If you have any questions regarding the applicability of Section 115.646 RSMo., or ballot questions generally, please consult your City Attorney or reach out to Joe Bond at joe@municipalfirm.com.

According to the Missouri Municipal League, approximately 230 cities already have use taxes in place, and on the April 5 ballot, another 60 or so municipalities and counties such as St. Louis County (the “County”) and Boone County are putting the question on the ballot. Generally, a use tax is applied to purchases from out-of-state vendors. As it relates to distribution of use taxes, it should be noted that if St. Louis County’s use tax is passed, the distribution of such tax shall be allocated on a per capita basis (i.e., the ratio of the population each city, town, village, and the unincorporated areas of the county bear to the total population of the County), not the Group A / Group B formulation applicable to certain sales taxes under § 66.620 RSMo. If a city’s local use tax passes, that local use tax will be distributed wholly to the specific city, minus 1% to the Department of Revenue for collection. See § 144.759.1 RSMo. If both a county’s and a city’s use taxes are passed, both use taxes would apply to specific out-of-state, online transactions. This will not result in a “double tax” as the transaction would be taxed by two separate taxing entities—much like the operation of a sales taxes at present. If passed, the use taxes are to be set at the same rate as local sales taxes.


If you have any further questions on the methods of use tax distribution, or any other use tax questions, please contact your City Attorney.