A Board’s Censure Of Its Own Member Was Lawful

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
DATE: Sep 07, 2022

In 2013, David Wilson was elected to the Board of Trustees of the Houston Community College System (HCC).  Wilson often disagreed with the Board about the best interests of HCC and brought multiple lawsuits challenging the Board’s actions.  By 2016, Wilson’s escalating disagreements led the Board to publicly reprimand him.  At a 2018 meeting, the Board adopted a resolution “censuring” Wilson.  The Board also imposed penalties that made Wilson ineligible for Board officer positions during 2018.

Wilson claimed that this censure violated the First Amendment of the U.S. Constitution.  After multiple appeals, the U.S. Court of Appeals for the Fifth Circuit held that the verbal “reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim.”  HCC appealed to the U.S. Supreme Court.

On appeal, Wilson reiterated his claim that the verbal censure he received was a retaliatory action after the fact for his protected speech  The Court began its analysis by stating it would give “long settled and established practice” regarding the meaning and application of the U.S. Constitution “great weight”.  The Court noted that since colonial times, assemblies had the power to censure their members at the federal, state, and local levels.  Thus, verbal censure is in line with centuries of practice that have been found to be consistent with the First Amendment.

The Court next analyzed the First Amendment claim under the contemporary doctrine, which requires the individual suing to show, among other things, that the government took a material adverse action in response to the individual’s speech that it would not have been taken absent the retaliatory motive.  The Court held that a verbal censure was not a material adverse action for two important reasons.  First, Wilson was an elected official.  Elected officials are generally expected to shoulder a degree of criticism about their public service and continue exercising their free speech rights when the criticism comes —  in this case in the form of a verbal censure.  Second, this censure was simply a form of speech that admonishes another member of the same governmental body.  The First Amendment guarantees the right to speak freely on questions of government policy, so one individual’s speech cannot “be used as a weapon to silence other representatives seeking to do the same”.  By attempting to sue the Board and HCC for this censure, Wilson was attempting to silence the Board’s proper exercise of its First Amendment rights.

The Court said its conclusion was bolstered by the fact that after receiving the verbal censure, Wilson continued to fight for what he thought was right.  Indeed, Wilson had already received another verbal censure that did not come with additional disciplinary attributes.  Wilson did not contest that this censure violated the First Amendment.  The Court found this cut against Wilson’s case because Wilson was essentially arguing that a verbal censure that also carries discipline was more material than a “plain” verbal censure.  The Court implied that “discipline,” such as not being able to hold certain positions, does not actually materially affect an individual’s ability to speak freely and exercise their First Amendment rights.

A common theme in the Court’s analysis was that this censure was from members of a governing body against another member, that is, peer-to-peer.  None of the censuring members had any amount of inordinate power over the censured member.  Finally, a verbal censure is simply a statement that reprimands the receiving individual.  The censure was itself an exercise of First Amendment Rights.  The censure did not prevent the censured individual from continuing to exercise his own First Amendment rights.

Houston Cmty. Coll. Sys. v. Wilson, (2022) 142 S. Ct. 1253, 1258, 212 L. Ed. 2d 303.


This case illustrates the latitude a governing Board has to censure and punish its own members.  The Court did mention that certain censures from a body with more power and agency, against an individual with less, may indeed amount to a First Amendment violation.

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