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Four months following Rep. Paul Gosar’s (R-AZ) censure in the U.S. House of Representatives for posting an anime-style video on Twitter that depicted him killing his colleague, Rep. Alexandria Ocasio-Cortez (D-NY), the U.S. Supreme Court unanimously ruled that members of an elected body have the constitutional right to censure a member from that same body.
This case arose from the Fifth Circuit and began with David Wilson’s 2013 election to the Board of Trustees of the Houston Community College. Almost immediately after his election, Wilson became an outspoken critic of the board and, often, found himself at odds with the board and the direction in which it was taking the school. In response, Wilson filed various lawsuits against the board challenging their decisions. By 2016, despite public reprimands from the board for his behavior, Wilson did not abate his critiques. This time, Wilson charged the board with procedural and ethical violations in various media outlets. Additionally, Wilson coordinated robocalls to his colleagues’ constituents to announce his views and hired a private investigator to prove that one of the board members was improperly elected because her home was allegedly not within the district. In 2018, the board again censured Wilson in a public resolution and stated that Wilson’s conduct was “not only inappropriate but reprehensible.” After the second resolution, Wilson amended one of his previous lawsuits to argue that the board’s censure constitutes an impermissible retaliatory action and thus violates the First Amendment.
The Supreme Court answered the question of whether the Board’s censure violated Mr. Wilson’s First Amendment right to free speech. In writing for the court, Justice Neil Gorsuch’s argument focused on two main lines of reasoning. First, the value found in the historical practice of verbal censure does not weigh in Wilson’s favor. Justice Gorsuch refers to seventeenth-century colonial assemblies’ assumption that they could censure their own members. He makes a nebulous reference toward Congress censuring one of its members for “objectionable speech directed at [a] fellow member,” which has only happened twice in our nation’s history, the most recent being that of Rep. Gosar’s. Second, the court’s judicial precedent informs the elements of the complaint that any plaintiff would need to make. Here, Wilson, among other things, needs to show that the board took an “adverse action” in response to his speech and that action “would not have been taken absent the retaliatory motive.”
The court emphasizes two legally significant facts to explain why the board’s adverse actions are not material enough to give rise to an actionable First Amendment claim. To begin, the court expects Wilson and other elected officials, “to shoulder a degree of criticism about their public service from their constituents and their peers” and to continue to exercise that right to free speech amid that criticism. Next, the court recognizes that censure is itself a form of speech. Meaning Wilson cannot use his right to speak freely “as a weapon to silence other [elected officials] seeking to do the same.”
At the end of the opinion, the court notes its narrow holding. It is limited to “[the] censure of one member of an elected body by other members of the same body” and does not cover government bodies’ censuring of private individuals or government officials who do not serve in that body. However, the court left plenty of room for other scenarios where governing bodies could materially impair First Amendment freedoms in regard to students, employees, or licensees.
This case’s importance stems not only from the ruling itself but also from the backdrop of a moment where the American political discourse is polarized and siloed, and many remain on high alert to the effects of cancel culture on the American experiment. When the Fifth Circuit denied a rehearing en banc, Judge Jones noted in her dissent that lawsuits like these are efforts for opposing political sides to “get a leg up on the other.”. In this political climate and with the rise of polarized online discourse, it is likely that other jurisdictions will hear cases that push the bounds of protected speech.
Judge Jones also noted that “[p]olitical infighting of this sort should not be dignified with a false veneer of constitutional protection and has no place in the federal courts.” Although the Supreme Court decided to grant cert and ultimately rule in the favor of elected bodies’ right to censure its members, Justice Gorsuch’s opinion leaves a distinct comment about the types of speech that should be allowed. He quotes Thomas v. Collins, to advocate that speech should not be disrupted, and that we need to allow “[f]ree speech on both sides and for every faction on any side.” This analysis makes room for both the board’s right to censure and Wilson’s right to critique the board in the media.
However, the Court and Wilson recognize this was not a defamation suit nor does Wilson object to the content of the public resolution censuring him. In Wilson’s case, there is no harm associated with the form of speech presented. Unlike Wilson’s behavior, Rep. Gosar’s censure is directed at his speech specifically for its potential to incite violence and the tangible, harmful implications to the physical safety of his fellow colleague.
While free speech on both sides may be important, let’s not forget the necessary role that censures play in condemning unacceptable behavior and speech. It is a tactic that could increasingly be employed against conservative candidates who have previously advocated for violence in a democracy and continue to do so against their political opponents and a portion of their constituents.
Austin is a 1L at HLS. He is interested in the intersection of the internet, free speech, and digital civil liberties. Prior to law school, he worked as a trust and safety professional for Facebook, Inc., focusing on hate speech, violence and incitement, and misinformation policies.