Are Censures of Politicians a Form of Free Speech or a Threat to It?

The Supreme Court is set to hear arguments this fall on whether the censure of an elected official in Houston ran afoul of the First Amendment.,

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WASHINGTON — Last summer, the City Council in River Falls, Wis., censured a member for calling an opponent of wearing masks during the coronavirus pandemic “a rancid tub of ignorant contagion.”

A few days later and a hundred miles away, the City Council in St. Cloud, Minn., censured one of its own for saying mask mandates were like requiring that “Covid-positive people wear some sort of identification badge, maybe like a bright yellow star.”

Censures, which are formal reprimands and a kind of punishment, seem to be on the rise in these divisive times. The Supreme Court will hear arguments this fall on whether the First Amendment has anything to say about when elected bodies can impose them on their members.

The justices will have to decide whether censures condemning politicians’ statements are a threat to free speech that chills expression or a form of free speech responding to one set of views with another.

The case before the justices was brought by David Wilson, a former elected trustee of the Houston Community College System and an energetic critic of its work. In addition to airing his concerns in interviews and on a website, Mr. Wilson sued the system’s board, orchestrated robocalls and hired private investigators to look into whether another trustee had lied about where she lived.

He was, a federal appeals court judge wrote in a dissent, a “gadfly legislator.”

Mr. Wilson said there was plenty to criticize about the college system. In a Supreme Court brief, his lawyers said the board had been investigated for “rampant political graft.” In 2018, a former trustee was convicted of accepting bribes from people seeking contracts with the college.

That same year, Mr. Wilson’s fellow board members censured him.

“The board finds that Mr. Wilson’s conduct was not only inappropriate, but reprehensible, and such conduct warrants disciplinary action,” the resolution said.

He sued, saying the punishment violated the First Amendment.

A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, allowed the case to proceed, ruling last year that punishing an elected official for his speech can run afoul of the Constitution.

“The Supreme Court has long stressed the importance of allowing elected officials to speak on matters of public concern,” Judge W. Eugene Davis wrote for the panel. “A reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim.”

Judge Davis acknowledged that the board had also imposed some punishments more concrete than a reprimand, like making Mr. Wilson ineligible for reimbursement for college-related travel. Those additional penalties, the judge wrote, did not violate his First Amendment rights.

Mr. Wilson’s lawyers told the justices that the power to censure must have limits. Elected bodies can censure their members for what they say during the lawmaking process, they wrote, and for conduct that is not protected by the First Amendment. But outside the official realm, they wrote, the First Amendment forbids “a government body’s official punishment of a speaker for merely expressing disagreement with a political majority.”

Those may appear to be fine distinctions. Mr. Wilson’s brief in the case, Houston Community College System v. Wilson, No. 20-804, gave examples to illustrate how they would work outside the legislative process.

“A censure would be permissible for illegal marijuana use, for example, but not for statements supporting the legalization of marijuana use,” the brief said. “Likewise, a censure would be permissible for slander, but not for statements that merely criticize.”

The full Fifth Circuit deadlocked on whether to rehear the case, by an 8-to-8 vote. Dissenting from the decision to deny further review, Judge Edith H. Jones said the panel’s First Amendment analysis was backward. The board’s censure was itself speech worthy of protection, she wrote, particularly in a polarized era.

“Given the increasing discord in society and governmental bodies, the attempts of each side in these disputes to get a leg up on the other, and the ready availability of weapons of mass communication with which each side can tar the other, the panel’s decision is the harbinger of future lawsuits,” Judge Jones wrote. “It weaponizes any gadfly in a legislative body.”

“Political infighting of this sort,” she wrote, “should not be dignified with a false veneer of constitutional protection and has no place in the federal courts.”

In a second dissent, Judge James C. Ho said that enduring condemnation is part of an elected official’s job description.

“Holding office in America is not for the faint of heart,” he wrote. “With leadership comes criticism — whether from citizens of public spirit or personal malice, colleagues with conflicting visions or competing ambitions, or all of the above.”

The Supreme Court may embrace that view, based partly on decisions holding that the government is generally free to speak as it wishes.

Justice Antonin Scalia, who died in 2016, gave a crisp summary of that position in a 1986 opinion, when he was an appeals court judge. He concluded that the government was free to classify films as political propaganda and, more generally, to offer its point of view.

“We know of no case,” he wrote, “in which the First Amendment has been held to be implicated by governmental action consisting of no more than governmental criticism of the speech’s content.”

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