Tuesday, March 29, 2022

Board's verbal reprimand of one of its members does not give rise to First Amendment claim

The Supreme Court has provided important guidance on what constitutes an "adverse employment" in First Amendment retaliation suits. Except that the holding is limited to the facts of this case. The Court  holds that a member of the community college Board of Trustees who was verbally reprimanded by the rest of the Board following his disagreements about college policy cannot bring a retaliation claim.

The case is Houston Community College System v. Wilson, issued on March 24. The acrimony between the parties is set forth in the opinion. Wilson went to war against the Board, publicly accusing it of violating its bylaws, he hired people to surveil other Board members, and he sued the Board, accusing it of having prohibited from performing his core duties as a trustee. When it had enough of this, the Board censured Wilson, who claims in turn the censure was in retaliation for his free speech. The Supreme Court votes 9-0 in holding that Wilson cannot sue the Board because the censure is not enough for a lawsuit. In legalese, the censure is not an adverse employment action.

The Court does not approach this like the usual employment dispute, in which it would only ask whether this alleged adverse action was enough to chill Wilson's speech. Instead, the Court considers the history of elected bodies in the United States to censure their members. This has been the practice since at least 1811, when the U.S. Senate censured one of its members. The history lesson in this decision outlines other examples of public bodies censuring its members over bad behavior. While the Court notes that adverse actions usually exist when the governmental body takes action that might chill someone's speech in the future, the holding in this case really rests on two factors.

First, elected representatives like Wilson are expected to shoulder public criticism; it's part of the job. People like Wilson are also expected to publicly respond to this criticism. That's necessary to ensure the free discussion of governmental affairs. Second, the censure itself was a form of free speech by the Board of Trustees. They have rights, too. Since the censure did not prevent Wilson from performing his job, it did not actually silence his speech (as he continued to attack the Board over one of its reprimands) and it was not defamatory, "we do not see how the Board's censure could have materially deterred an elected official like Mr. Wilson from exercising his own right to speak."

The Court is careful to note that some reprimands may in fact constitute adverse actions, depending on the plaintiff. This language will be useful for lawyers who handle these cases on behalf of rank-and-file employees, was well as lawyers who defend such cases. Citing Circuit court cases, Justice Gorsuch writes:

In rejecting Mr. Wilson’s claim, we do not mean to suggest that verbal reprimands or censures can never give rise to a First Amendment retaliation claim.  It may be, for example, that government officials who reprimand or censure students, employees, or  licensees  may  in  some  circumstances materially impair First Amendment freedoms. Likewise, we do not address today questions concerning  legislative censures accompanied by punishments, or those aimed at private individuals. Nor do we pass on the First Amendment implications of censures or reprimands issued by government bodies against  government  officials who do not serve as members of these bodies.

Moreover, the Court says, "when the government interacts with private individuals as sovereign, employer, educator, or licensor, its threat of a censure could raise First Amendment questions. But those cases are not this one." Ultimately, "Our case is a narrow one" dealing only with "a censure of one member of an elected body by other members of the same body."

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