On March 24, 2022, the U.S. Supreme Court decided Houston Community College System v. Wilson, No. 20-804, concluding that an elected official does not possess an actionable First Amendment retaliation claim arising purely from a censure or reprimand issued by the governmental body the official represents for speech addressing a matter of public concern.

David Wilson, an elected member of the Houston Community College System (HCC) Board of Trustees, brought an action under 42 U.S.C. § 1983 against HCC for allegedly violating his First Amendment right to free speech. Wilson alleged that HCC’s adoption of a public resolution censuring him for conduct it considered inappropriate, reprehensible, and inconsistent with the best interests of the College violated his First Amendment rights because it represented an impermissible retaliatory action based on his speech.

The district court dismissed the complaint, finding that Wilson lacked standing under Article III. The Fifth Circuit reversed, 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.

In a unanimous opinion, the Supreme Court reversed. In doing so, the Court relied on the (1) long settled and established practice dating back to colonial times that the power of assemblies to censure their members is “more or less assumed,” and (2) contemporary doctrine governing whether a retaliatory adverse action materially impairs an elected official’s First Amendment rights.

Relying on the regular course of practice, the Court enumerated censures against elected officials spanning more than 200 years and concluded that even “[i]f this longstanding practice does not ‘put at rest’ the question of the Constitution’s meaning for the dispute before us,” it suggests an understanding of the First Amendment that permits “[f]ree speech on both sides and for every faction on any side.”

With regard to the materiality of HCC’s conduct, the Court opined that the adverse action at issue did not give rise to a First Amendment retaliation claim because (1) Wilson’s status as an elected official comes with an expectation that he will shoulder a degree of criticism about his public service and (2) HCC’s censure was itself a form of speech and that just as “[t]he First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy, . . . just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same.”

Justice Gorsuch authored the opinion for a unanimous Court.

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