Supreme Court to Politicians: Toughen Up, Buttercup!

What do you suppose the Supreme Court might tell a politician who filed a lawsuit complaining that other politicians said mean things about him? You might think the Court would say, "Toughen up, Buttercup!" Well, yesterday, that's what the Court more or less said. They said it nicer than that. But that's what they meant.

In Houston Community College System v. Wilson, the  U.S. Supreme Court made clear that politicians with thin skins will have to get their relief somewhere other than from the First Amendment.

David Wilson, an elected member of the Houston Community College System Board of Trustees, had some pretty strong disagreements with his colleagues on the Board. He filed lawsuits against the Board. The Board, in turn, publicly reprimanded him. He vowed to press on and did with public complaints that his colleagues violated bylaws and ethics rules. He hired a private investigator to surveil one of his colleagues. He filed more lawsuits. The litigation cost the Board nearly $300,000 in legal fees.

The Board didn’t take all that lying down. It passed a resolution (a resolution, I tell you!) censuring Mr. Wilson. The censure said his conduct wasn't in the best interests of the College. More personally, the resolution said Wilson's conduct was "not only inappropriate, but reprehensible[!]" (There wasn't an exclamation point in the Court's recital of the facts of this case. But we can agree it was implied, right?)

Mr. Wilson, undaunted by this second admonition, complained in court that the censure violated his First Amendment rights. The trial court dismissed the claim. The U.S. Court of Appeals for the Fifth Circuit ruled, though, that Wilson's First Amendment challenge could go forward. Wilson argued that the Board's censure resolution was a material, governmental retaliation against him for exercising his First Amendment right to free speech. The Fifth Circuit agreed that claim could go to trial.

The Supreme Court yesterday put a stop to it.

Justice Neil Gorsuch, writing for a unanimous Court (over the last decade, just under half the Court's decisions were unanimous) began by noting that elected bodies in America have a long tradition of censuring their own members. They've been doing it since the dawn of the Republic.

Note, here, that Justice Gorsuch began his discussion of the First Amendment's protections with Originalist analysis. He asked, what did the Founders think the First Amendment meant? Admonishing wayward board members was well-established when the First Amendment was adopted. The historical record doesn't indicate the First Amendment was intended to curb that practice. The Court reasoned, then, that we should interpret the First Amendment today to treat governmental censures the same way the First Amendment would have applied to those censures two hundred years ago.

The Court then considered whether Wilson's censure was a "material" or "immaterial" adverse action in response to Wilson's criticism of the Board. Only "material" adverse actions raise First Amendment concerns. The Court noted that some earlier cases considered an adverse action "material" only if it would "chill a person of ordinary firmness" from engaging in protected speech.

Without setting a particular standard for defining a "material" adverse action, the Court noted that two considerations were fatal to Wilson's First Amendment claim. First, he's an elected official. "In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers – and to continue exercising their free speech rights when the criticism comes." Indeed, after his censure, Wilson was as vigorous as ever in his advocacy.

Second, when the Board censured Wilson, the Board was exercising its own First Amendment rights. Wilson surely has the right to criticize his Board. The Board has the same right to criticize him right back.

The Court was careful to note that, unlike in Wilson's case, a verbal reprimand from a government body may have First Amendment implications in a different context. For example, a reprimand or censure from a public body to a student, or an employee, or a licensee, may be a materially adverse action that chills those peoples' First Amendment rights. That's because those people may be subordinate to, and subject to the discipline of, a public body.

The Court concluded its opinion by noting that "[a]rgument and 'counterargument,' not litigation, are the 'weapons available' for resolving this dispute." Fair enough. It may be, too, that a little less arguing and a little more listening might help. Either way, the First Amendment is no balm to soothe politicians' wounded feelings.