Community college feud leads to First Amendment retaliation claim
By Amy Howe
November 1, 2021
From the moment he was elected to the Houston Community College System board of trustees in 2013, David Wilson says he was unwilling to come together to get along. Wilson’s repeated criticisms of what he describes as the board’s ‘pay-to-play’ culture led the board to censor him in 2018. On Tuesday, the Supreme Court will hear oral arguments on whether the first amendment restricted the power of council to do so.
The Houston Community College District is a system of community colleges in the greater Houston area. It is governed by a council of nine members, each member being elected by the public to represent a single-member constituency. Wilson argues that just before and during his tenure, the board “was plagued with charges of bribery and other embezzlement, culminating in the conviction of the senior director on federal bribery charges.” As a result, Wilson writes, he “actively disseminated his criticisms of the Council in the press and telephone campaigns.” This included denouncing, among other things, a $ 45 million deal to establish the Community College of Qatar – a project that involved tens of thousands of dollars in luxury travel expenses for board members. Wilson also filed two lawsuits against the college and individual directors in state court, arguing that the board violated its bylaws by allowing a director to vote by video conference and challenging Wilson’s exclusion from a meeting. from the administration board.
Wilson’s actions led the board to pass a resolution in January 2018 that publicly blamed Wilson for his conduct. The resolution said Wilson’s actions were “not in the best interests of the College or the board,” “in violation of the board’s constitution code of conduct,” and reflected a board’s conclusion that “Wilson’s conduct was not only inappropriate, but reprehensible.
The censorship resolution prompted Wilson to add a federal civil rights claim to his first trial in state court, arguing that the censorship violated his right to free speech. Wilson asked the court to prevent the college and administrators from enforcing censorship (which would include additional penalties such as banning him from running for office on the board the following year) and $ 20,000 in damages and punitive damages.
The college referred the case to federal court, where Wilson then dropped its claims against the individual trustees. The district court dismissed Wilson’s lawsuit, ruling that Wilson had failed to show that he had been genuinely hurt by censorship because he could still perform his official duties and speak in public. Therefore, the district judge ruled that Wilson did not have the right to sue, known as standing.
The United States Court of Appeals for the 5th Circuit overturned. Wilson, the court said, had alleged that the council had censored him as punishment for exercising his right to free speech – which is enough to stand tall. Additionally, the appeals court added, Wilson also made a First Amendment claim. By a vote of 8-8, the entire appeals court refused to hear the case again. Houston Community College came to the Supreme Court, which in April 2021 agreed to rule.
Defending censorship before the Supreme Court, the college emphasizes that the First Amendment prohibits the government from using its power to regulate, constrain or prohibit speech. But the college didn’t do any of those things in this case, he says. Instead, he says, the censorship was nothing more than “peer review”: “a pointed expression of the body’s official disapproval and desire that, as a board member to administration, “Wilson” must speak and act differently in the future. “
The college argues that both history and tradition reject arguments advanced by Wilson and the appeals court. Throughout history, the college says, elected legislatures have disciplined their members for speeches that criticized the legislature or government, often using methods such as imprisonment or expulsion that were “much more extreme. than censorship ”. The powers conferred on Congress in the Constitution “have long been understood as extending at least to censorship or other forms of official reprimand”, continues the college, as evidenced by the famous condemnation by the Senate in 1954 of the senator. Joseph McCarthy for conduct which “tended to dishonor and discredit the Senate. This power of censorship has extended to local elected government bodies, argues the college.
Allowing Wilson to block censorship on the grounds that it violated his First Amendment rights would in itself undermine the First Amendment, the college argues. A local government body normally has the right to speak for itself, including responding to Wilson’s right to speak, even when that means preferring one position over another. The democratic process, rather than the courts, should serve as a control over the government’s speech, the college’s reasons. This can happen before the speech, as community members can weigh in on whether to pass a censorship resolution. And after a government body passes a censure resolution, voters who disapprove of the individual member’s conduct and agree with the resolution can vote against him. Alternatively, voters who disagree with the resolution can vote against members of the majority who supported it. “This is,” the college argues, “this is how democracy is supposed to work.”
The federal government filed a “friend of the court” brief supporting the college. He underlines that the question submitted to the tribunal is narrow, involving “only censorship imposed by an elected body against one of its members”. Judges don’t need and shouldn’t deal with broader issues, the government stresses, such as whether Congress can censor members of the executive, like the president, or whether individual lawmakers can be sued or sued. for their work in power.
Wilson acknowledges that he could be blamed for his conduct in what he calls the “legislative sphere” – his actions in official meetings or hearings or his contributions to reports, for example – without violating the First Amendment. . But the council cannot, he continues, censor him for his speech outside this sphere. This conclusion is supported by history, he suggests, because the founders “viewed official censorship as severe punishment” rather than “expressions of opinion.” And in current practice, he notes, modern courts and locally elected bodies have also recognized that censorship is a form of punishment. This is because locally elected bodies, like the Los Angeles City Council, use a two-step trial-like process before censoring someone.
Wilson rejects the suggestion that the board’s censorship of him was only “peer review.” Houston Community College could have expressed its disapproval of Wilson’s speech by having board members speak individually, or by adopting a statement that Wilson’s criticisms did not reflect the board’s values, but did not censor it. Instead, he points out, the board relied on its disciplinary power to censor Wilson.
Either way, Wilson writes, the council’s censorship of him was “blatantly punitive”: not only did the council express its disapproval of his speech, there were direct consequences. He became ineligible for travel reimbursements and was unable to serve as an officer on the board of directors, among other things. “These practical consequences hampered his ability to function as a fiduciary; they were a severe punishment intended to silence him. Wilson argues that censorship is unconstitutional under the 1966 court ruling in Bond vs. Floyd, a case involving the exclusion by the Georgia House of Representatives of a member who had been outspoken in his opposition to the Vietnam War. The Supreme Court unanimously ruled that the disqualification of the member by the legislature for his statements violated his rights under the First Amendment.
Wilson concludes by warning the judges that a ruling in favor of the college could have much broader implications. If, he writes, “censorship is harmless expressions of government opinion,” then legislatures could also “use their power of formal censorship to drastically cool the discourse of disgraced elected officials.”
A decision in the case is expected by the summer.
This article originally appeared on Howe on the Court.