By Andrew Chung
WASHINGTON (Reuters) – U.S. Supreme Court justices on Tuesday appeared skeptical that a Texas community college violated the free speech rights of a former member of its board of trustees by censuring him for “reprehensible” behavior during his stormy tenure.
The justices heard nearly 90 minutes of oral arguments in Houston Community College’s appeal of a lower court decision to revive a lawsuit by David Wilson that claimed that the school’s censure – a formal act of discipline – violated the U.S. Constitution’s First Amendment protection from government abridgement of free speech.
Questions posed by the justices indicated that they may be reluctant to limit the ability of publicly elected bodies to respond to a member’s speech or conduct with censure. Wilson was publicly elected to the school’s board of trustees.
Censure has been employed by democratic institutions throughout U.S. history. Members of the U.S. Congress have faced censure on occasion dating back two centuries, including in recent decades.
Wilson’s lawyer, Michael Kimberly, told the justices that censures like the one meted out by the college have a chilling effect on the speech of elected members, prompting skepticism from some of the justices.
Conservative Chief Justice John Roberts said siding with Wilson would cause “a chilling effect the other way.”
“A majority of a board wants to say something about what they regard as whatever reprehensible or offensive conduct – and yet their speech is going to be chilled if you prevail today,” Roberts told Kimberly.
Liberal Justice Stephen Breyer expressed concern about the Supreme Court attempting to “oversee” other branches of government.
Wilson served from 2013 to 2019 on the board at the college, a public institution in the largest city in Texas, with an enrollment of more than 50,000 students.
Some justices expressed discomfort with certain other punishments doled out to Wilson beyond the actual censure, including denying reimbursement for travel expenses.
Wilson is described in local media accounts as a longtime anti-LGBT activist. He previously mounted a petition to amend Houston’s city charter to bar men “who perceive or express themselves as women” from entering women’s restrooms, according to the Houston Chronicle.
Wilson said he ran for a board seat to expose college mismanagement. He criticized board decisions in the news media and through robocalls, hired a private investigator to uncover alleged corruption, claimed on his website that other board members had engaged in unethical or illegal conduct and sued the board twice for actions he opposed.
The board voted to censure him in 2018, finding that his conduct was “not only inappropriate, but reprehensible.” The discipline also revoked his privileges as a trustee to access certain funds for college-related travel and other activities.
Wilson sued to stop the censure’s enforcement, seeking monetary damages including for mental anguish.
The New Orleans-based 5th U.S. Circuit Court of Appeals in 2020 overturned a federal judge’s decision to throw out the case, allowing it to proceed. The 5th Circuit ruled that a “reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim.”
(Reporting by Andrew Chung in Washington; Editing by Will Dunham)
