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US Supreme Court - Censure of elected body by other members of same body NOT 1st Amendment violation

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.

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