Public Bodies Can Censure Fellow Board Members for Conduct that is Detrimental to the Best Interests of the Public Body

Houston Community College v. Wilson
United States Supreme Court Docket No. 20–804
Thursday, March 24, 2022

David Wilson, a member of the Board of Trustees of the Houston Community College System was censured by the Board for conduct that was not consistent with the best interests of the College.  The Board also imposed certain penalties by barring Wilson from election to Board positions, making him ineligible for reimbursement for College related travel, restricting access to funds available for community affairs and recommending training related to governance and ethics.  Wilson sued the College claiming the Board’s censure violated the First Amendment.  However, only the actual words of censure were considered by the Supreme Court when addressing his First Amendment claims

As a general matter the Supreme Court observed that the First Amendment prohibits government from subjecting individuals to retaliatory actions after the fact for having engaged in protected speech.  A plaintiff pursuing a First Amendment retaliation claim must show that the government  took an adverse action in response to her speech that would not have been taken absent the retaliatory motive.  The Court concluded that the verbal censure did not prevent Mr. Wilson from doing his job, and it did not deny him any privilege of office, and Wilson acknowledged the censure was not defamatory.  Considering those circumstances, the Board’s censure did not materially deter Mr. Wilson from exercising his own right to speak, and therefore did not offend the First Amendment.  In making this decision the Court provided the following overview of the freedom of speech and public service by elected representatives:

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. As this Court has put it, “[w]hatever differences may exist about interpretations of the First Amendment, there is practically universal agreement” that it was adopted in part to “protect the free discussion of governmental affairs.” Mills v. Alabama, 384 U. S. 214, 218 (1966). When individuals “consent to be a candidate for a public office conferred by the election of the people,” they necessarily “pu[t] [their] character in issue, so far as it may respect [their] fitness and qualifications for the office.”


Additional Information: 

Practice Pointer: Public bodies can censure fellow board members for conduct that is detrimental to the best interests of the public body, and such verbal censures would not violate the First Amendment, provided the censure did not deny a privilege of office, and did not prevent the censured member from doing their job as an elected or appointed official.