Houston Community College System v. Wilson

WHETHER THE CENSURE IS PUNISHMENT COGNIZABLE UNDER THE FIRST AMENDMENT

Petitioner Houston Community College System (“HCC”) acknowledges that the First Amendment prohibits the government from retaliating against a speaker by taking “adverse action” against the speaker in response to his speech. Brief for Petitioner, Houston Community College System at 11. HCC denies, however, that a censure is an “adverse action” cognizable under the First Amendment. Id. According to HCC, a government action must be “regulatory, proscriptive, or compulsory in nature” to cause an injury under the First Amendment. Id. at 11–12. HCC maintains, by contrast, that the First Amendment provides no protection from the government’s “opinions and advice,” and that a censure is merely the statement of an “institutional opinion” with no coercive effect. Id. at 12. HCC argues that, although a censure is an “official rebuke,” it nonetheless leaves the censured person free to persist in her speech or conduct. Id. at 15. HCC contends that Wilson was not injured by the censure because the censure did not prevent him from performing his duties as a trustee or penalize him with an arrest or loss of employment. Id. At most, HCC asserts, the censure was “political peer pressure.” Id. HCC observes that in New York Times Co. v. Sullivan, the Supreme Court stated that elected politicians must be considered people “of fortitude, able to thrive in a hardy climate.” Id. at 17. To allow Wilson’s claim to proceed, HCC asserts, would be inconsistent with that principle. Id.

Respondent David Buren Wilson (“Wilson”) responds that the lower courts agree, and HCC does not contest, that a government act is “adverse” if it is a form of punishment, despite the fact that the Supreme Court has not explicitly defined an “adverse action.” Brief for Respondent, David Buren Wilson at 20. Wilson argues that, under this standard, a legislative censure is an “adverse action” because it is an inherently punitive government act. Id. at 21. Wilson asserts, first, that the punitive nature of the censure was clearly established at the time of the founding. Id. Wilson draws attention, for example, to James Madison’s statement in 1792 that “[i]t is in vain to say” that a censure “is no punishment.” Id. at 25. Wilson argues, second, that the punitive nature of the censure is well established in modern cases and contemporary legislative practice. Id. at 26. Wilson notes that the Supreme Court held in Ibanez v. Florida Department of Business & Professional Regulation that a professional licensing body violated the First Amendment by censuring a person for her protected speech. Id. at 27. Wilson also maintains that many local elected bodies acknowledge the punitive nature of the censure in their bylaws. Id. at 28. In defense of the proposition that the censure represents an adjudication of guilt, Wilson cites the bylaws of many local elected bodies requiring that the censure be imposed only after a “trial-like” procedure. Id. at 28–30. Wilson asserts these bylaws recognize the punitive nature of a censure by specifically prohibiting its use in response to a member’s protected speech. Id. at 44. Wilson adds that he suffered a pecuniary injury because of the Board’s censure. Id. at 31–33. In particular, Wilson argues that he was disqualified from receiving reimbursement for travel expenses and prevented from accessing a community affairs fund except with the approval of the entire Board. Id. at 32–33. Wilson argues that, due to these pecuniary deprivations, the Court can rule in his favor even if it does not accept that a censure is inherently punitive. Id. at 31.

CENSURE AS GOVERNMENT SPEECH

HCC argues that a censure is a form of government speech for which the government is immune from liability under the First Amendment. Brief for Petitioner at 30. Quoting Pleasant Grove City, Utah v. Summum, HCC states that a local elected body “has the right to speak for itself” and “is entitled to say what it wishes.” Id. Again quoting Summum, HCC asserts that “[i]t is the very business of government to favor and disfavor points of view.” Id. HCC argues that the censure should be considered a form of government speech for three reasons: (1) the censure was “integral to [the Board’s] ability to manage its own governance process”; (2) the censure is an essential means of clearly announcing the Board’s institutional opinion when more neutral measures would be inadequate; (3) and the censure is a vital means of providing the electorate with information about the political commitments of the Board and its members. Id. at 31–32. HCC claims that allowing Wilson’s claim to proceed would frustrate these important functions of the censure. Id. at 30–33.

Wilson counters that HCC’s invocation of the government speech doctrine depends on an untenable description of the censure as “speech” rather than punishment. Brief for Respondent at 36. Wilson argues that, had the Board wished to speak rather than to punish, it could have enacted a resolution of opinion rather than a censure. Id. at 36–37. Wilson asserts that the distinction between a censure and a resolution of opinion is well established in state and local practice. Id. at 37–38. Wilson notes, for example, the censure policy of the Oakland City Council, which prohibits the use of censure in response to protected speech but specifically authorizes the Council to respond with an opinion resolution. Id. Wilson argues that, thus, HCC “distort[s]” the government speech doctrine. Id. at 38. In particular, Wilson insists that HCC’s invocation of Summum is inapt because that case concerned a private party’s attempt to compel the government to give expression to the party’s views. Id. at 39. Wilson argues that Summum does not control this case because, unlike the private party in Summum, Wilson does not attempt to compel the government to express his views. Id. Instead, according to Wilson, here the government attempted to compel him to express the government’s views, an act for which Summum provides no immunity. Id.

TRADITIONAL USE OF THE CENSURE

HCC argues that allowing a censured member of an elected body to seek relief under the First Amendment would threaten a long tradition of allowing a legislature control over its internal affairs by means such as the censure. Brief for Petitioner at 18–19. HCC observes that the tradition of legislative self-discipline began with English Parliament in the sixteenth century. Id. at 19. HCC asserts that Parliament disciplined its members both for speech on the floor of the House and for conduct outside the House. Id. at 21. HCC argues that colonial legislatures followed the parliamentary tradition of self-discipline and that this tradition carried to the state and federal legislatures of the United States. Id. at 21–23. HCC observes, in particular, that the traditional prerogative of legislative self-discipline was formally recognized in Article I, Section 5 of the Constitution, which provides that Congress may “determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the concurrence of two thirds, expel a Member.” Id. at 22. HCC argues that the tradition of legislative self-discipline has been inherited by local elected bodies such as the Board in this case. Id. at 24. In particular, HCC asserts that the censure, as employed by local elected bodies, has been an important means of promoting engagement and debate about the speech or conduct of an elected member. Id. at 25. HCC concludes that prohibiting the use of the censure would be inconsistent with the central place of the censure in the traditional practice of state, federal, and local legislatures. Id. at 29.

Wilson responds, first, that HCC overstates the extent to which legislatures have traditionally depended on the censure as a means of self-regulation. Brief for Respondent at 42. Wilson observes that, of the 12,400 persons who have served in the United States House of Representatives and Senate, only 32 have been censured. Id. Wilson also asserts that only 21 of the state legislatures have ever used the censure. Id. at 42. The rareness of the censure, Wilson concludes, belies HCC’s argument that “freewheeling censures for extra-legislative speech” are an essential “part of the American tradition.” Id. Wilson argues, second, that when legislatures have used the censure, it has been for speech and conduct “within the legislative sphere.” Id. at 43. Wilson asserts that HCC has cited no case in which the federal legislature used the censure to discipline a member for speech that occurred “outside the legislative sphere.” Id. In addition, Wilson denies that the censure is widely used by local elected bodies to discipline members for extra-legislative speech. Id. at 43–44. Wilson argues that, of the 15 censures by local elected bodies cited by HCC, four concerned extra-legislative speech, and the rest have been the subject of federal litigation. Id. at 44. Wilson concludes, therefore, that “formal legislative censures for speech outside the legislative sphere are anomalous, objectionable, and not at all part of ‘settled and established practice.’” Id.