Board Censure Did Not Violate Board Member’s Free Speech Rights

In Houston Community College System v. Wilson, the U.S. Supreme Court unanimously held that an elected official does not have a viable First Amendment claim based on a purely verbal censure issued by a public body of which the official is a member for speech regarding a matter of public concern. In the case at issue, the board of trustees of a community college system and one of its members had a difficult relationship. After years of acrimony, the board censured the member for actions and speech related to his service on the board, calling his conduct “inappropriate” and “reprehensible.” The member sued the board, arguing that the verbal censure violated his free speech rights under the First Amendment.

The Court began by reviewing the extensive history of censures issued by assemblies in this country, finding that their powers to censure members were “more or less assumed.” The Court found that the censure at issue did not constitute a materially adverse action taken by the board against the board member. In so finding, the Court emphasized that an elected official must expect to shoulder criticism of his or her public service. In addition, the censure at issue was a form of speech made by the board as a whole. The Court reasoned that the First Amendment could not be used as a weapon to silence the other board members who were trying to speak freely on questions of government policy.

However, the Court’s ruling was narrow. The Court did not rule that verbal reprimands or censures can never offend the First Amendment, particularly when directed at non-members of the board. And the Court did not address censures accompanied by punishments or censures aimed at private individuals.

This case confirms that school boards and municipal boards may issue a purely verbal censure of a member on a matter of public concern without violating the member’s free speech rights. As the court emphasized, board members should know that criticism is an unavoidable part of their positions. Because the ruling was narrow, however, boards should consult with legal counsel before issuing censures or pursuing other actions against individual board members.

Source: Houston Community College System v. Wilson, 142 S.Ct. 1253 (2022)