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Supreme Court decides Houston Community College System v. Wilson | Faegre Drinker Biddle & Reath LLP

On March 24, 2022, the United States Supreme Court ruled Houston Community College System v. WilsonNo. 20-804, finding that an elected official does not possess an actionable claim of retaliation based on the First Amendment, arising solely from a censure or reprimand issued by the government agency that the representative stands for a speech dealing with a matter of public interest.

David Wilson, elected board member of the Houston Community College System (HCC), filed a lawsuit under 42 USC § 1983 against HCC for allegedly violating his First Amendment right to free speech. Wilson alleged that the HCC’s passing of a public resolution censuring him for conduct he deemed inappropriate, reprehensible and inconsistent with the College’s best interests violated his First Amendment rights because it represented a retaliatory action. inadmissible based on his speech.

The district court dismissed the complaint, finding that Wilson lacked standing under Article III. The Fifth Circuit reversed, finding that a verbal reprimand against an elected official for a speech dealing with a matter of public interest is a First Amendment lawsuit under § 1983.

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

Relying on the regular course of practice, the Court listed censures against elected officials spanning over 200 years and found that even “[i]f this long-standing practice does not “put to rest” the question of the significance of the Constitution to the dispute before us, “it suggests an understanding of the First Amendment that allows”[f]free speech on both sides and for every faction on any side.

With respect to the materiality of the HCC’s conduct, the Court held that the adverse action at issue did not give rise to a claim for First Amendment reprisal because (1) Wilson’s status as that being elected comes with an expectation that he will endorse some degree of criticism of his public office and (2) HCC censorship was itself a form of speech and that equally”[t]he First Amendment surely promises an elected official like Mr. Wilson the right to speak freely on matters of government policy. . . equally surely, it cannot be used as a weapon to silence other representatives who seek to do the same.

Justice Gorsuch wrote the opinion of a unanimous Court.