Gorsuch Brings Texas Officially to the First Amendment Clinic

Associate Justice Neil Gorsuch stands in a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021.

The US Supreme Court on Thursday challenged and dismissed a new claim in a Texas case where an elected official argued that being formally criticized by a colleague was a First Amendment violation. .

In ruling against the nasty official, nine judges offered a modern interpretation of the age-old principle that the best way to combat offensive free speech is simply freedom of speech. more argument.

Stylized like Houston Community College System sues David Buren WilsonThe dispute here arose from the “stormy” tenure of the defendant, David Wilsonhas been a member of the HCC Board of Directors since he was first elected to the position in 2013.

Justice Neil Gorsuch. And the unruly behavior doesn’t stop there.

“Wilson has accused the Board of Directors in various media of violating the Board’s statutes and code of ethics,” the opinion explained. “He arranged robot calls for members of certain trustees to make his views public. He hired a private investigator to survey another trustee, apparently seeking to prove she did not reside in the district that elected her.”

In 2018, it all turned out to be amazing.

The Board of Trustees, had enough, passed a resolution that publicly “censored” Wilson and said that his years of unruly conduct were “not in the best interests of the College” and “not only inappropriate but also reprehensible”.

In addition to censorship, the panel “imposed certain penalties,” noted Gorsuch. Those included disqualifying Wilson for a board member position the year he was censored, failure to refund college-related travel reimbursements, and limited ability to his access to other board funds.

With one of his many lawsuits still standing, Wilson revised the complaint to include First Amendment complaints against board members and the university system about its control. approval and resulting in penalties being applied. Over time, during the years of litigation that followed, Wilson removed each board member from his case and left HCC as the sole defendant.

A district court ruled against him. The United States Court of Appeals for Fifth Street partially reversed that decision, finding that his criticism was a First Amendment violation but continued to lose the penalty suit because of those privileges. of elected leadership does not qualify as a “constitutional right. ”

The university system has submitted to the nation’s high court for review of the remaining constitutional complaint, and at least five judges have agreed to take up the case. In a worthy period, Wilson also argued against Fifth Track’s denial of his claim of a loss of board privileges. Unfortunately for that request, however, he did not file a cross-petition to be considered. So, Gorsuch said, the Supreme Court can only consider whether a censorship has grown to the point of a First Amendment violation.

The relatively brief opinion begins its analysis with a long historical summary of how censorship by elected bodies is an “old practice” dating back to “colonial times” in the country.

“The parties provide little reason to think that the First Amendment was designed or generally understood to supplement this practice,” noted Gorsuch, creating a wide web of stories about President Trump. system. Thomas Jefferson and Senator Joseph McCarthy until today.

SEE ALSO: Justice Kagan invites Joseph McCarthy to join the case on whether legislatures can censor members for speech

“[E]Underwriters in this country have long exercised the right to censor their members,” the opinion explained. “In fact, no one before us has cited any evidence that a purely verbal criticism similar to that of Mr. Wilson has ever been considered a First Amendment insult.”

The historical perspective is emphasized when this opinion finally takes a hardline stance on constitutional principles of free speech:

According to Mr. Wilson and under the hold of the Fifth Circuit, a purely verbal criticism of an elected assembly of one of its own members could violate the First Amendment. . Before that, however, we had no evidence that previous generations thought an elected representative’s speech could be “briefly.”[ed]“Because of the kind of antagonistic statements from my colleagues. Instead, when it comes to disagreements of this kind, history suggests a different understanding of the First Amendment — one that allows “[f]ree speech for both sides and for every faction on any side. “

Gorsuch went on to say that a “retaliatory action” for a First Amendment claim must lead to negative consequences – and outlined a range of such consequences before taking Wilson out of business.

“Some adverse actions are easily identifiable — arrest, prosecution or dismissal from government employment,” the opinion noted. “'[D]may also sometimes qualify. At the same time, no one would have thought that a mere frown of a supervisor would be enough to create an adverse action to lead to an actionable First Amendment claim.”

Wilson, the opinion explains, is an elected official and, in the United States, politicians are a class of people who are expected to “bear some degree of criticism of their public service from voters trio and their colleagues — and continue to exercise their liberties. the right to speak when criticized”.

“[T]He just acted unfavorably against us, which in itself is a form of statement made by Mr. Wilson’s colleagues regarding public office conduct,” Gorsuch continued. “The First Amendment certainly promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy. But certainly, it cannot be used as a weapon to silence other representatives looking to do the same.”

The opinion then distinguishes certain forms of censorship from the form in question in the present case – note that forms of censorship against students, employees or licensors of government will likely take place in less solid territory and potentially lead to a successful First Amendment claim of retaliation.

On the other hand, here, Gorsuch notes, Wilson has been on an equal footing with those who have criticized him, and he has responded to the alleged retaliation by continuing to criticize his colleagues for what they say. did with him.

Again comments at length:

The criticism brought before us was a form of speech by the elected representatives. It involves the public conduct of another elected representative. All participants are equal members of the same discussion body. For us, too, criticism does not prevent Mr. Wilson from performing his job, it does not deny him any privileges of office, and Mr. Wilson does not consider it defamatory. . At least in these cases, we don’t see how criticism of the Board could materially prevent an elected official like Mr. Wilson from exercising his or her own right to speak. .

[image via ERIN SCHAFF/POOL/AFP via Getty Images]

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