In the case of Houston Community College Sys. v. Wilson, No. 20-804, the United States Supreme Court held that a college board of trustee’s censure or reprimand of a board member who had made comments to the media and brought multiple lawsuits against the board alleging that the board violated its ethical rules and bylaws did not violate the board member’s First Amendment free speech rights.
Here, the board member argued that the board’s censure was an impermissible retaliatory action for speaking out against the board. The Court disagreed.
In holding that the board member had no viable claim, the Court explained that there is a longstanding practice of elected bodies verbally censuring one of their own members and no precedent for finding such censures unconstitutional. The Court further explained that to establish a First Amendment retaliation claim, a plaintiff must show that the body’s action was a material adverse action — i.e., that it materially deterred the plaintiff from exercising their free speech rights. The Court concluded that the censure did not qualify as a material adverse action capable of deterring the board member from exercising the right to speak because the board member was a public official who should be expected to continue to exercise free speech rights while being criticized, and the only adverse action taken was a form of speech from co-equal board members about official board business.
NOTE: This case does not involve an Ohio school board and school boards should proceed with caution before censuring any board member.
To read this case, click here.
Authors: Matthew John Markling and the McGown & Markling Team.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always-changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.