Supreme Court Hears Free Speech Case on Politician’s Censure

WASHINGTON — The basic question at a Supreme Court argument on Tuesday was whether elected bodies can violate the First Amendment when they censure their members for something they said. Put another way: Are censures, which are formal reprimands and a kind of punishment, a form of free speech or a threat to it?

The answer to that question, several justices said, did not seem difficult.

“Unless there’s something special about the word ‘censure,’ and maybe there is, this is a very easy case,” said Justice Samuel A. Alito Jr. “One person says something derogatory about another person, and then the other person responds by saying something derogatory about the first person. Nobody’s free speech rights are violated there.”

The case was brought by David Wilson, a former elected trustee of the Houston Community College System and an energetic critic of its work. In addition to airing his concerns in interviews and on a website, Mr. Wilson sued the system’s board, orchestrated robocalls and hired private investigators to look into whether another trustee had lied about where she lived.

He was, a federal appeals court judge wrote in a dissent, a “gadfly legislator.”

Mr. Wilson said there was plenty to criticize about the college system. In a Supreme Court brief, his lawyers said the board had been investigated for “rampant political graft.” In 2018, a former trustee was convicted of accepting bribes from people seeking contracts with the college.

That same year, Mr. Wilson’s fellow board members censured him. “The board finds that Mr. Wilson’s conduct was not only inappropriate, but reprehensible, and such conduct warrants disciplinary action,” the resolution said.

Mr. Wilson sued, saying the censure had violated the First Amendment.

A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, allowed the case to proceed, ruling last year that punishing an elected official for his speech can run afoul of the Constitution.

“The Supreme Court has long stressed the importance of allowing elected officials to speak on matters of public concern,” Judge W. Eugene Davis wrote for the panel. “A reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim.”

At Tuesday’s argument, Michael B. Kimberly, a lawyer for Mr. Wilson, drew distinctions that appeared to frustrate some of the justices. He said, for instance, that elected bodies can punish their members for what they say during the lawmaking process but cannot issue formal reprimands for speech in other settings.

Justice Amy Coney Barrett seemed to find that distinction surprising. “Let’s imagine that a member engages in really offensive speech full of racial slurs that he said on the floor, let’s say, in the debate about some civil rights legislation,” she said. Under Mr. Kimberly’s theory, she said, that speech could be the subject of a censure resolution.

But, Justice Barrett added, if the same member “walks out onto the steps and gives a press conference and repeats those exact same racial slurs, that is not subject to censure ever?”

“That’s correct,” Mr. Kimberly said.

Other justices expressed concerns about ruling on clashes between politicians.

Justice Clarence Thomas, for instance, appeared wary of having courts become “involved in the rough and tumble of politics.” Justice Stephen G. Breyer echoed that point, saying that “if we get into the business of starting to really oversee this, then we’ve changed the government structure significantly.”

Justice Brett M. Kavanaugh said the court should consider a narrow ruling. “Do we have to get into any of this in this case?” he asked. “I thought the issue, all we had to decide, was a mere censure does not trigger a retaliation claim.”

Sopan Joshi, a lawyer for the federal government arguing in support of the system’s board, said there were ample historical examples to establish that “a censure resolution adopted by an elected body against one of its members does not abridge that member’s freedom of speech.”

Richard A. Morris, a lawyer for the system’s board in the case, Houston Community College System v. Wilson, No. 20-804, said the power to censure was essential in the current political climate.

“Elected officials these days can be their own independent misinformation machines,” he said, “and they can do great damage to institutions, all on social media.”