Supreme Court Issues Decision Affirming a Public Body’s Right to Censure Board Member

In Houston Community College System v. Wilson, the United States Supreme Court held that a public body’s verbal censure of a fellow board member did not violate the board member’s First Amendment rights. The censure followed Board Trustee David Wilson’s arrangement of robocalls criticizing other board members, filing of various, and costly, lawsuits against the board and hiring of a private investigator to surveil another trustee in an attempt to prove she did not reside in the district that had elected her. As a result, the Board of Trustees of the Houston Community College System (“HCC”) censured Mr. Wilson, finding that his conduct was “not consistent with the best interests of the College” and “not only inappropriate, but reprehensible.”

Mr. Wilson filed suit, asserting that the Board censure violated the First Amendment. The HCC moved to dismiss the complaint, which the District Court granted. On appeal, the Fifth Circuit Court of Appeals reversed, holding that Mr. Wilson had standing and that his complaint stated a viable First Amendment claim. 

The Supreme Court reversed the Fifth Circuit’s decision, finding that elected bodies have long exercised the power to censure their members, and that a purely verbal censure has never been widely considered offensive to the First Amendment. The Court also noted that the censure itself was a form of speech by elected representatives, protected by the First Amendment.

The court was careful to note that its decision does not suggest that verbal reprimands or censures can never give rise to a First Amendment retaliation claim. For example, government officials who reprimand or censure students, employees, or licensees may in some circumstances materially impair First Amendment freedoms. The decision also does not address censures accompanied by punishments, or those aimed at private individuals.

This decision conflicts with a 1991 Illinois Attorney General Opinion (Op. Att’y Gen. (Ill.) No. 90-001). In that opinion, the Attorney General was asked whether a public body has the authority to sanction one of its members for disclosing information or issues discussed by the public body in a closed meeting pursuant to the Open Meetings Act. There, the Attorney General opined that absent an express statutory provision so providing, public bodies do not have the power to sanction their members pursuant to the Open Meetings Act. The Supreme Court’s decision in Houston Community College System v. Wilson, however, makes clear that public bodies do have the power to at least verbally sanction their own members, as it is a form of speech protected by the First Amendment.

If you have questions regarding the Supreme Court decision, please reach out to any Franczek attorney.