Opposition Brief — Houston Community College System, Petitioner v. David Buren Wilson

Supreme Court briefMar 22, 2021

Ask Donna

What actually matters in this document.

Text

No. 20-804

In the Supreme Court of the United States

HOUSTON COMMUNITY COLLEGE SYSTEM,

Petitioner,

DAVID BUREN WILSON,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Fifth Circuit

BRIEF IN OPPOSITION

EUGENE R. FIDELL

Yale Law School

Supreme Court Clinic

127 Wall Street

New Haven, CT 06511

(203) 432-4992

KEITH A. GROSS

250 Park Avenue

League City, TX 77573

(832) 932-5970

MICHAEL B. KIMBERLY

Counsel of Record

PAUL W. HUGHES

McDermott Will & Emery LLP

500 North Capitol Street NW

Washington, DC 20001

(202) 756-8000

mkimberly@mwe.com

Counsel for Respondent

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Introduction .................................................................1

Statement ....................................................................3

A. Legal background .............................................3

B. Factual background ..........................................6

C. Procedural background ....................................9

Reasons for Denying the Petition .............................11

A. The decision below is correct ..........................12

1. Wilson has Article III standing ................12

2. The Board’s censure of Wilson for his

extra-legislative protected speech

violated the First Amendment..................13

3. HCC’s contrary position is untenable.......15

B. The petition does not present a conflict

warranting the Court’s review .......................18

C. This case is not a suitable vehicle ..................22

Conclusion .................................................................23

TABLE OF AUTHORITIES

Cases

Blair v. Bethel School District,

608 F.3d 540 (9th Cir. 2010) ................................ 21

Bond v. Floyd,

385 U.S. 116 (1996) .............................. 5, 14, 15, 19

Brennan v. Norton,

350 F.3d 399 (3d Cir. 2003) ................................. 22

In re Cohn,

139 N.E.2d 301 (Ill. 1956) .......................... 4, 12, 13

Colson v. Grohman,

174 F.3d 498 (5th Cir. 1999) ................................ 19

The Fla. Bar v. Stein,

471 So.2d 36 (Fla. 1985) ........................................ 4

Gentile v. State Bar of Nevada,

501 U.S. 1030 (1991) ............................................ 12

Gravel v. United States,

408 U.S. 606 (1972) .......................................... 1, 18

Hartman v. Moore,

547 U.S. 250 (2006) ............................................ 3, 4

Hutchinson v. Proxmire,

443 U.S. 111 (1979) ................................................ 5

LaFlamme v. Essex Junc. Sch. Dist.,

750 A.2d 993 (Vt. 2000) ........................... 11, 20, 21

Meese v. Keene,

481 U.S. 465 (1987) .............................................. 12

Minton v. St. Bernard Par. Sch. Bd.,

803 F.2d 129 (5th Cir. 1986) ................................ 11

Miss. Comm’n on Jud. Performance v. Brown,

761 So. 2d 182 (Miss. 2000) ............................. 4, 13

Nevada Comm’n on Ethics v. Carrigan,

564 U.S. 117 (2011) .............................................. 12

iii

Cases—continued

Nieves v. Bartlett,

139 S. Ct. 1715 (2019) ............................................ 3

N.Y. Times v. Sullivan,

376 U.S. 254 (1964) ........................................ 14, 15

Phelan v. Laramie County Community

College Board of Trustees,

235 F.3d 1243 (10th Cir. 2000) ................ 10, 11, 19

Pickering v. Bd. of Ed.,

391 U.S. 563 (1968) ................................................ 4

Rangra v. Brown,

566 F.3d 515 (5th Cir. 2009) ................................ 15

Republican Party of Minn. v. White,

536 U.S. 765 (2002) ...................................... 4, 5, 15

Suarez Corp. Indus. v. McGraw,

202 F.3d 676 (4th Cir. 2000) ................................ 22

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) .............................................. 17

Walker v. Texas Division of the Sons of

Confederate Veterans,

576 U.S. 200 (2015) .............................................. 16

Werkheiser v. Pocono Township Board of

Supervisors,

704 F. App’x 156 (3d Cir. 2017) ..................... 11, 21

Whitener v. McWatters,

112 F.3d 740 (4th Cir. 1997) ...................... 4, 18, 20

Williams-Yulee v. Florida Bar,

575 U.S. 433 (2015) .............................................. 12

Wood v. Georgia,

370 U.S. 375 (1962) .......................................... 5, 15

Zilich v. Longo,

34 F.3d 359 (6th Cir. 1994) ............................ 11, 20

Statutes and constitutional provisions

42 U.S.C. § 1983 .......................................................... 9

U.S. Const. Art I, § 6, cl. 1 .................................... 1, 18

Other authorities

4 Annals of Cong. 934 (1794) .................................... 16

Benjamin Wermund, HCC Scaling Back Qatar

Agreement, Houston Chron. (Mar. 13, 2016) ........ 7

Black’s Law Dictionary (11th ed. 2019)................ 4, 13

Board of Trustees Bylaws (Sept. 2, 2020) ............... 6, 9

Editorial Board, It’s About Time at HCC:

Results of Investigation Should Bring

Changes at Community College Board,

Chron. (Aug. 1, 2011) ............................................. 7

Jeannie Kever, Qatar Turns to Houston

Community College for New School,

Chron. (July 26, 2011) ........................................... 7

Lindsay Ellis, Former HCC Trustee Chris Oliver

Gets 70 Months in Prison After Bribery

Conviction, Houston Chronical (Jan. 9, 2018) ...... 8

Michael Hardy, The Crazy College of

Qatar, New Republic (Aug. 31, 2016) .................... 7

S. Res. 301, 83d Cong. (1954) ...................................... 5

U.S. House of Representatives, List of Individuals Expelled, Censured, or Reprimanded in the U.S. House of Representatives ................ 5

INTRODUCTION

This case is not about an elected body’s general

authority to set standards of conduct for its members

or to enforce those standards using its censure power.

The censure power is well settled, and its scope is

broad. Under the Speech or Debate Clause and its

state analogs, the deliberations of an elected body’s

members within the “legislative sphere” are immune

from judicial scrutiny (Gravel v. United States, 408

U.S. 606, 624-625 (1972)) and may be “questioned” only

by the lawmaking body itself (U.S. Const. Art I, § 6,

cl. 1). Thus, an elected body’s power to censure for

speech or conduct “integral” to lawmaking “processes”

(Gravel, 408 U.S. at 625) is virtually without limit.

Elected bodies also have authority to censure

members for their behavior outside the legislative

sphere. But because official censures bear the imprimatur of a governmental body itself, they are constrained in that context by the First Amendment.

Thus, outside the legislative process, censures would

be a proper response for such offenses as slander, true

threats, incitements to insurrection, and nonexpressive conduct. But they are not a proper response

for core political speech. Indeed, there could be no

clearer violation of the First Amendment than a

government body’s official punishment of a speaker for

merely expressing disagreement with a political

majority. And that is this case.

The Board of Trustees of the Houston Community

College System has been the subject of multiple internal and criminal investigations over the past decade.

About ten years ago, an internal investigation uncovered rampant political graft. More recently, a federal

public corruption investigation culminated in a former

Board member’s conviction for bribery.

Respondent David Wilson was elected to the Board

after a controversial political campaign that resulted in

his unseating a 24-year incumbent. As a member of the

Board, Wilson committed himself to helping root out

what he saw as the unwise, unethical, and often unlawful conduct of fellow Board members.

Wilson’s colleagues on the Board were not pleased

to have their behavior questioned so publicly. Determined to bring Wilson’s public criticisms to an end,

they voted to censure him. But as support for this

censure, the Board did not accuse Wilson of improper

behavior in the conduct of official business. Nor did it

accuse him of engaging in wrongful conduct outside the

lawmaking process. Rather, the Board cited their disapproval of Wilson’s core political speech and petitioning of government:

• his use of “public media to criticize other Board

members for taking positions that differ from

his own” (Pet. App. 42a);

• his giving an “interview with a local radio station in which he identified Board members who

voted in favor of a transaction that he opposed”

(ibid.);

• his filing non-frivolous lawsuits against the

Board for violations of its own bylaws and the

federal Constitution (Pet. App. 43a).

The censure rendered Wilson ineligible to serve as an

officer of the Board, to access his discretionary bank

account, and to receive reimbursements for collegerelated travel. Pet. App. 44a-45a. It also received significant public attention, and Wilson was not reelected

to the Board in the next election. Pet. App. 5a.

The Fifth Circuit held that Wilson suffered an injury-in-fact from the censure, adequate to confer Article III standing to challenge the Board’s action. It held

further that he had stated a valid claim sounding in

First Amendment retaliation. Those holdings are plainly correct and do not warrant further review.

First, the petition is deeply wrong to suggest that

political majorities—acting officially on behalf of a governmental body itself—may censure a member of a

political minority for publicly expressing views not

shared by the majority. When a majority of lawmakers

(or board members) disagree with the views of a colleague, they are free to express their disagreement using speech of their own. Such exchanges are the lifeblood of democratic discourse. What the majority may

not do, however, is adopt an official resolution—purporting to speak for the government itself—that

censures members of the minority simply for expressing minority views. To do that is to establish political

orthodoxy, backed by threat of official sanction. Resolutions of that sort are not the lifeblood of political discourse; they are the death of it.

Second, the petition vastly overstates any conflict

among the lower courts. If there is any disagreement at

all, it is with a single decision of the Tenth Circuit. But

as we explain below, the Tenth Circuit’s reasoning is

incomplete and may be revisited by that court.

Finally, even if the question presented were worthy

of this Court’s attention, this case would not be a suitable vehicle for review because it lacks a developed

record. The petition accordingly should be denied.

STATEMENT

A. Legal background

1. The First Amendment generally “prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.” Nieves

v. Bartlett, 139 S. Ct. 1715, 1722 (2019) (quotation

marks omitted) (quoting Hartman v. Moore, 547 U.S.

250, 256 (2006)). To make out a claim for First Amendment retaliation, a plaintiff must show that: (1) she

engaged in activity protected under the First Amendment, (2) she suffered an “adverse action,” and

(3) there was “a ‘causal connection’ between the government defendant’s ‘retaliatory animus’ and the

plaintiff’s ‘subsequent injury.’” Ibid.1

2. A censure is “[a]n official reprimand or condemnation” or “an authoritative expression of disapproval

or blame.” Censure, Black’s Law Dictionary (11th ed.

2019). Censures are a mechanism for enforcing an

elected body’s rules and standards and, as such, are

inherently punitive. Indeed, courts uniformly recognize

that “[p]ublic reprimands are serious sanctions” (Miss.

Comm’n on Jud. Performance v. Brown, 761 So. 2d 182,

185 (Miss. 2000) (en banc)) entailing substantial

“stigma” for those subject to them (The Fla. Bar v.

Stein, 471 So.2d 36, 37 (Fla. 1985)). Thus, a “censure is

a real, substantial and serious punishment.” In re

Cohn, 139 N.E.2d 301, 306 (Ill. 1956) (Bristow, J., concurring in denial of rehearing). Accord Whitener v.

McWatters, 112 F.3d 740, 745 n.* (4th Cir. 1997) (affirming that “the stigma of formal censure” gives rise

to Article III standing).

3. Elected bodies ordinarily may censure members

for conduct occurring both during a legislative session

(e.g., conduct that is disruptive of the body’s work) and

outside of a legislative session (e.g., conduct that is unlawful or harmful to the body’s reputation). Every censure by the U.S. House of Representatives, for exam1

Although the Court ordinarily applies the so-called Pickering

balancing test in First Amendment retaliation cases (see Pickering v. Bd. of Ed., 391 U.S. 563, 568 (1968)), that test does not apply to claims by elected officials. See Republican Party of Minn. v.

White, 536 U.S. 765, 774-775 (2002); Pet. App. 13a.

ple, has involved (1) misconduct on the House floor;

(2) unparliamentary language on the House floor or in

the Congressional Record; or (3) criminal conduct taking place outside of the House chamber. See U.S.

House of Representatives, List of Individuals Expelled,

Censured, or Reprimanded in the U.S. House of Representatives, https://perma.cc/3J7Y-L9KE.

To our knowledge, neither the United States Senate nor the U.S. House of Representatives has ever

censured a member for speech protected by the First

Amendment spoken outside the bodies’ respective

chambers.2 And as the Court repeatedly has made

clear, “[t]he role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.” Republican Party of Minn. v.

White, 536 U.S. 765, 781-782 (2002) (quoting Wood v.

Georgia, 370 U.S. 375, 395 (1962)). Indeed, the First

Amendment’s “manifest function * * * in a representative government requires that legislators be given the

widest latitude to express their views on issues of policy.” Bond v. Floyd, 385 U.S. 116, 136 (1996).

The petition cites (at 24) the censure of Senator Joseph McCarthy in 1954 as an example of censure for political speech. That is

misleading. He was censured for his “obstruc[tion of] the constitutional processes of the Senate” and conduct “contrary to senatorial

ethics [that] tended to bring the Senate into dishonor and disrepute.” S. Res. 301, 83d Cong. (1954). To the extent the censure

concerned his speech, the senator’s “statement released to the

press” was also “inserted in the Congressional Record of November 10, 1954.” Ibid. Statements in the Congressional Record are

within the “legislative sphere” covered by the Speech or Debate

Clause. Hutchinson v. Proxmire, 443 U.S. 111, 126 (1979) (“[T]he

Clause extend[s] to things generally done in a session of the House

by one of its members in relation to the business before it.”) (quotation marks and emphasis omitted).

B. Factual background

This case involves the Houston Community College

System Board of Trustees’ censure of respondent David

Wilson for his public criticism of Board policies and

Board members’ actions.

1. Houston Community College System (HCC) is a

public community college system that operates community colleges in the greater Houston area. A ninemember Board manages and controls the system. See

HCC, Board of Trustees, https://perma.cc/G9F7-HGJC.

The Board’s work is governed by formal bylaws, pursuant to which trustees are elected by the public to serve

six-year terms. Trustees are fiduciaries and must act

solely for the benefit of HCC. See Board of Trustees

Bylaws, art. A, § 1 (Sept. 2, 2020), https://perma.cc/45DK-UTVQ (“Bylaws”).

The bylaws contain a code of conduct, according to

which trustees must “[e]ncourage and engage in open

and honest discussion in making Board decisions, * * *

respect differences of opinion, and * * * keep an open

mind until each Trustee has had an opportunity to address the Board,” among other things. Bylaws, art. A,

§ 4(c)-(d). The code specifies that “[a]ny person may allege, in writing, using the form at Exhibit B, noncompliance with this Ethics Code.” Bylaws, art. A, § 11(a)

After such an allegation is made, “[t]he Chair, ViceChair, or Chancellor, as appropriate, will undertake a

process to resolve the complaint,” and “[i]f the Board

finds a violation of this Ethics Code, it can reprimand

or censure the Board member,” which are “the only

sanctions available under Texas law.” Ibid.

2. The Board has made a series of controversial decisions over the past decade. Its 2011 decision to sign a

$45 million, five-year contract with the government of

Qatar to create a community college overseas, for ex-

ample, provoked extensive public controversy. See

Jeannie Kever, Qatar Turns to Houston Community

College for New School, Chron. (July 26, 2011),

https://perma.cc/D5BE-2XN2. The Board framed the

contract, which was not vetted by HCC’s in-house lawyer, “as a bold moneymaking venture to help build that

country’s first community college.” Benjamin Wermund, HCC Scaling Back Qatar Agreement, Houston

Chron. (Mar. 13, 2016), https://perma.cc/LCS2-9L8V.

The venture was seen by many as a boondoggle and

was not renewed after the initial five-year term, having earned barely a third of its projected profit. Michael Hardy, The Crazy College of Qatar, New Republic

(Aug. 31, 2016), https://perma.cc/99TQ-3P42.

An earlier internal investigation found compliance

and procurement issues involving former and current

members of the Board. The investigation revealed that

one trustee had used her influence to direct work to

her son’s construction company and to obtain free consulting from a vendor. It found also that two other

trustees “engaged in a relentless pattern and practice

of conduct designed to enrich at a minimum their family and friends.” Editorial Board, It’s About Time at

HCC: Results of Investigation Should Bring Changes at

Community College Board, Chron. (Aug. 1, 2011),

https://perma.cc/4E3D-RMLS. These events led the

Houston Chronicle Editorial Board to lament that

“scandal and shenanigans” had “tainted * * * the HCC

board for far too long.” Ibid.

Following a subsequent investigation by the FBI,

HCC’s longest-serving trustee, Chris Oliver, pleaded

guilty to federal bribery charges and was sentenced to

70 months in prison. See Judgment, United States v.

Oliver, No. 4:17-cr-132 (S.D. Tex. Jan. 25, 2018) (Dkt.

44). Oliver had received 69 bribe payments totaling

over $225,000 from at least four people seeking con-

tracts with HCC between 2009 and 2016. Lindsay Ellis, Former HCC Trustee Chris Oliver Gets 70 Months

in Prison After Bribery Conviction, Houston Chronical

(Jan. 9, 2018), https://perma.cc/85DJ-QRWZ.

3. Wilson, a longstanding critic of HCC’s Board,

was elected to the Board in 2013. Pet. App. 2a.

The Board held a meeting at which a trustee cast

her votes via video conference. Pet. App. 3a; Compl.

¶ 15, Wilson v. Houston Cmty. Coll. Sys., No. 4:18-cv744 (S.D. Tex. Mar. 18, 2018) (Dkt. 1-2) (“Compl.”). At

the time, the Board’s bylaws permitted remote attendance at meetings but forbade remote voting. The Board

nonetheless ratified the remotely-cast votes. Ibid.

Wilson subsequently sued HCC and its individual

trustees, seeking a declaration that the remotely-cast

votes were “illegal and void.” Compl. ¶ 18. When the

chair of the Board excluded Wilson from a subsequent

Board meeting to discuss the lawsuit, Wilson filed a

second action against HCC and its individual trustees,

alleging that by excluding him from the executive session, HCC had “prohibited him from performing his

core functions as a Trustee, deprived him of his right of

freedom of association, and deprived the people of District 2, their right to representation.” Petition 5, Wilson

v. Houston Cmty. Coll. Sys., No. 17-71693 (Tex. Dist.

Ct. filed Oct. 24, 2017).

The Board later censured Wilson by a majority

vote. Pet. App. 42a-45a. The resolution of censure

found, in relevant part, that “because Mr. Wilson has

repeatedly acted in a manner not consistent with the

best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct, the Board

finds that Mr. Wilson’s conduct was not only inappropriate, but reprehensible, and such conduct warrants

disciplinary action.” Pet. App. 44a.

The resolution stated that Wilson, among other

things, had “used public media to criticize other Board

members for taking positions that differ from his own”

(Pet. App. 42a); “regularly publishes information on a

website that he created and maintains, alleging that

other Board members have engaged in unethical

and/or illegal conduct, without facts to support his allegations” (ibid.); and filed two lawsuits against HCC

and board members—the first “complaining of the interpretation of Board Bylaws and state law regarding

the ability of Board members to participate in meetings

remotely,” and the second “complaining of his exclusion

from closed session” (Pet. App. 43a).

For his speech and lawsuits, the resolution declared Wilson ineligible to hold officer positions on the

Board in 2018 and to receive reimbursement for HCCrelated travel and directed him to cease “similar” conduct in the future. Pet. App. 44a-45a. Censure and reprimand are “the only sanctions available under Texas

law” for disciplining members of the Board. Bylaws,

art. A, § 11(d). The resolution further noted that “any

repeat of improper behavior by Mr. Wilson will constitute grounds for further disciplinary action by the

Board.” Pet. App. 45a.

C. Procedural background

1. Wilson amended the complaint in the first lawsuit to include claims against HCC and the trustees

pursuant to 42 U.S.C. § 1983. Pet. App. 21a. The

amended complaint alleged that the censure infringed

on his First Amendment rights and sought injunctive

relief. Ibid. He also sought $10,000 in damages for

mental anguish, $10,000 in punitive damages, and reasonable attorney’s fees. Id.

HCC and the trustees removed the case to federal

court. In a second amended complaint, Wilson dropped

his claims against the individual trustees, who enjoyed

legislative immunity. Pet. App. 21a-22a.

2. The district court dismissed for lack of jurisdiction. Pet. App. 20a-28a. Relying on Phelan v. Laramie

County Community College Board of Trustees, 235 F.3d

1243 (10th Cir. 2000), it reasoned that Wilson failed to

demonstrate an injury-in-fact and thus lacked standing. Pet. App. 27a.

3. The Fifth Circuit reversed and remanded. Pet.

App. 1a-19a. With respect to standing, the court held

that the district court “erred in relying on Phelan to

determine that Wilson lacked standing * * * because

the Phelan court held that the plaintiff in fact had

standing, noting that the plaintiff had alleged the

Board’s censure tarnished her reputation.” Pet. App.

7a. Because Wilson alleged that his public censure

caused him mental anguish, the Fifth Circuit held that

he suffered an injury sufficient to confer standing, like

the plaintiff in Phelan. Pet. App. 8a.

Turning to the merits, the Fifth Circuit held that

Wilson had stated a First Amendment claim. Pet. App.

14a-15a. It emphasized that “[t]he Supreme Court has

long stressed the importance of allowing elected officials to speak on matters of public concern.” Pet. App.

10a. And “censures of publicly elected officials” for

their protected speech, the court concluded, “can be a

cognizable injury under the First Amendment.” Ibid.

(emphasis added).

Applying these principles, the Fifth Circuit emphasized that the Board’s censure was intended to “punish[] him for ‘criticizing other Board members for taking positions that differ from his own’” and “for filing

suit alleging the Board was violating its bylaws.” Pet.

App. 14a. Because “[r]eporting municipal corruption

undoubtedly constitutes speech on a matter of public

concern,” the court held that Wilson had stated a First

Amendment retaliation claim. Pet. App. 14a-15a.

The Fifth Circuit rejected HCC’s argument that it

is entitled to absolute legislative immunity. Pet. App.

16a-17a. It noted that “absolute legislative immunity is

a ‘doctrine[] that protect[s] individuals acting within

the bounds of their official duties, not the governing

bodies on which they serve.’” Pet. App. 17a (quoting

Minton v. St. Bernard Par. Sch. Bd., 803 F.2d 129, 133

(5th Cir. 1986)). Because Wilson had dropped the individual board members as defendants, the court held

that HCC was not entitled to legislative immunity.

Ibid.3

4. The court of appeals denied rehearing en banc.

Pet. App. 29a-30a. Judge Jones filed a dissenting opinion, joined by four colleagues. Pet. App. 31a-38a. Judge

Ho filed a separate dissent. Pet. App. 39a-41a.

REASONS FOR DENYING THE PETITION

HCC seeks further review of the Fifth Circuit’s

holding that Wilson suffered an injury-in-fact and

stated a claim for relief. But the court of appeals did

not err in reversing the district court, and its decision

does not present a conflict warranting this Court’s

review at this time. This Court has repeatedly denied

petitions for certiorari presenting similar questions,4

and the same result is warranted here.

Wilson’s claims for declaratory and injunctive relief were dismissed as moot. Pet. App. 9a.

See Werkheiser v. Pocono Township Board of Supervisors, 704

F. App’x 156 (3d Cir. 2017), cert. denied, 138 S. Ct. 1001 (2018);

Phelan v. Laramie County Community College Board of Trustees,

235 F.3d 1243 (10th Cir. 2000), cert. denied, 532 U.S. 1020 (2001);

Zilich v. Longo, 34 F.3d 359 (6th Cir. 1994), cert. denied, 514 U.S.

1036 (1995); LaFlamme v. Essex Junction School District, 750

A.2d 993 (Vt. 2000), cert. denied, 531 U.S. 927 (2000).

A. The decision below is correct

The Fifth Circuit correctly reversed the district

court. Wilson plainly has standing, and his First

Amendment retaliation claim has merit.

Wilson has Article III standing

The district court dismissed the case for lack of an

Article III injury, but HCC barely defends that holding.

See Pet. 7 n.7. With good reason. The censure inflicted

numerous standing-worthy injuries on Wilson: It barred him from accessing his discretionary trustee bank

account, deprived him of travel reimbursements, and

more generally imposed the “real, substantial and serious punishment” of a public censure. In re Cohn, 139

N.E.2d at 306 (Bristow, J., concurring). Wilson was denied reelection, likely because he was censured by the

Board. Cf. Meese v. Keene, 481 U.S. 465, 479 n.14

(1987) (“The risk of this reputational harm * * * is sufficient to establish appellee’s standing to litigate the

claim on the merits.”).

This Court has repeatedly adjudicated the merits

of cases where the litigants’ injury arose from a public

censure or reprimand. See, e.g., Williams-Yulee v. Florida Bar, 575 U.S. 433 (2015) (the asserted injury was a

censure by a state bar); Nevada Comm’n on Ethics v.

Carrigan, 564 U.S. 117 (2011) (the asserted injury was

a censure by an ethics board); Gentile v. State Bar of

Nevada, 501 U.S. 1030 (1991) (the asserted injury was

a private reprimand by a state bar). Just as in those

other cases, the censure here was manifestly sufficient

to confer Article III standing. The Fifth Circuit’s holding to that effect does not warrant further review.

The Board’s censure of Wilson for his

extra-legislative protected speech

violated the First Amendment

The Fifth Circuit concluded that Wilson stated a

claim upon which relief may be granted. That decision,

too, is correct.

1. HCC’s disagreement with the Fifth Circuit

centers exclusively on the question whether a censure

is an “adverse action” within the meaning of the First

Amendment retaliation doctrine. Of course it is.

Censures are “authoritative expression[s] of disapproval or blame.” Censure, Black’s Law Dictionary

(11th ed. 2019). They condemn and castigate. They

carry the imprimatur of governmental disapproval.

They are a shaming penalty. As we explained above,

therefore, “[p]ublic reprimands are serious sanctions”

(Brown, 761 So. 2d at 185), inflicting “a real, substantial and serious punishment” (In re Cohn, 139

N.E.2d at 306 (Bristow, J., concurring)). Accord Pet.

App. 13a (“a formal reprimand, by its very nature, goes

several steps beyond a criticism or accusation”).

HCC can hardly deny that a censure is a punishment for a perceived violation of a rule or standard. To

be sure, HCC artfully avoids the word “punishment” in

its petition, describing censures as “respon[es] to violations” (Pet. 2) that are used to “address[] disobedience”

(Pet. 3). But the punitive nature of the censure is undeniable. The Board’s resolution declared expressly

that Wilson’s speech was “not only inappropriate, but

reprehensible,” warranting “disciplinary action.” Pet.

App. 44a. And in imposing the censure, the Board

proudly acknowledged that it was “the highest level of

sanction available.” Ibid. A “sanction” is a “penalty” or

other measure “punishing disobedience.” Sanction,

Black’s Law Dictionary (11th ed. 2019).

Beyond all that, the censure here did more than

merely express a reprimand; it also barred Wilson from

accessing his discretionary trustee bank account and

receiving reimbursements for college-related travel.

Pet. App. 44a. These are plainly adverse actions taken

in retaliation for speech and petitioning protected by

the First Amendment.

2. Against this background, the unconstitutionality

of the Board’s censure of Wilson is settled by Bond v.

Floyd, 385 U.S. 116 (1966). See Pet. App. 10a-11a & n.

29. Bond was a member of the Student Nonviolent Coordinating Committee and had recently been elected to

the Georgia House of Representatives. 385 U.S. at 118.

Before the legislative session began, Bond expressed

his support for criticism of the war in Vietnam. Id. at

121. In response, his colleagues in the Georgia legislature refused to seat him. Id. at 123-125.

On later judicial review of this adverse retaliatory

action, the Court ruled for Bond. “The First Amendment,” this Court explained, “requires that legislators

be given the widest latitude to express their views on

issues of policy.” 385 U.S. at 136. “[D]ebate on public

issues should be uninhibited, robust, and wide-open.”

Id. at 136 (quoting N.Y. Times v. Sullivan, 376 U.S.

254, 270 (1964)). Bond’s disqualification for his speech,

the Court held, “violated Bond’s right of free expression

under the First Amendment.” Id. at 137.

That holding resolves this case: Wilson expressed a

political point of view with which a majority of his colleagues disagreed, and he was officially punished as a

consequence. The First Amendment does not tolerate

that outcome. Pet. App. 10a-14a.

HCC suggests that censures (as distinct from expulsions or disqualifications) do not give rise to constitutional violations because public figures like Wilson

are “men of fortitude, able to thrive in a hardy

climate.” Pet. 30-31 (quoting N.Y. Times, 376 U.S. at

273). But that is exactly what the State argued in

Bond, and the Court roundly rejected it. 385 U.S. at

136-137. In fact, the opposite rule applies: The fact that

public figures like the members of HCC’s Board must

have the fortitude to tolerate public criticism is exactly

why Wilson’s speech may not be punished. Ibid.

These essential First Amendment protections do

not cease to apply simply because Wilson himself is a

Board member. “The interest of the public in hearing

all sides of a public issue is hardly advanced by

extending more protection to citizen-critics than to

legislators.” Bond, 385 U.S. at 136. If anything, “[t]he

role * * * elected officials play in our society makes it

all the more imperative that they be allowed freely to

express themselves on matters of current public

importance.” White, 536 U.S. at 781-782 (quoting Wood

v. Georgia, 370 U.S. 375, 395 (1962)).

This Court’s decisions “demonstrate that the First

Amendment’s protection of elected officials’ speech is

robust and no less strenuous than that afforded to the

speech of citizens in general.” Rangra v. Brown, 566

F.3d 515, 524 (5th Cir. 2009) (citing, for example,

Bond, 385 U.S. at 133-135; Wood, 370 U.S. at 392, 395;

and White, 536 U.S. at 774-775). The Fifth Circuit’s

decision is faithful to these bedrock principles.

HCC’s contrary position is untenable

HCC’s contrary position rests on the implausible

idea that official censures are merely expressions of

“government speech,” themselves subject to First

Amendment protection and categorically incapable of

inflicting constitutional injury. Pet. 26-28.

That position is not tenable. As HCC readily

admits (Pet. 13), “[t]he government can speak [only] so

long as its speech does not ‘punish, or threaten to

punish’ private speech.” But that is precisely what the

censure here did: It “punished Wilson for ‘criticizing

other Board members for taking positions that differ

from his own.’” Pet. App. 14a. Again, the Board itself

characterized the censure as “disciplinary” and a

“sanction.” Pet. App. 44a. That is the very definition of

punishment. Thus, even by HCC’s lights, the censure

here violates the First Amendment.

For that reason, a censure is manifestly different

from the sort of “government speech” addressed by the

Court in Walker v. Texas Division of the Sons of Confederate Veterans, 576 U.S. 200 (2015). See Pet. 27.

That case affirmed only that government agencies may

engage in speech as part of their policymaking and

policy enforcement endeavors—they may, “through

[both] words and deeds” act upon an “electoral mandate” to enact and enforce public policies. Walker, 576

U.S. at 207. Thus, officials elected on a platform of

promoting recycling may “writ[e] [to] householders asking them to recycle cans and bottles.” Ibid.

The issue here is not officials’ use of speech to promote the policies that they were elected to pursue. It is,

instead, about bare government punishment of political

dissention. It turns the First Amendment upside down

to say that the individuals who control government

may use their positions of authority to pass off their

own political views as the official opinions of the government itself, in resolutions censuring members of the

minority for simple political disagreement. “Opinions,”

Madison cautioned, “are not the objects of legislation.”

4 Annals of Cong. 934 (1794). On the contrary, the

power to censure for speech and political ideas “is in

the people over the Government, and not in the Government over the people.” Ibid.

It could hardly be otherwise. “[I]f there is any fixed

star in our constitutional constellation, it is that no

official, high or petty, can prescribe what shall be

orthodox in politics.” W. Va. State Bd. of Educ. v.

Barnette, 319 U.S. 624, 642 (1943). Yet that is just

what HCC asks this Court to approve: The majority of

HCC’s Board assert the right to speak officially for a

governmental body in condemning Wilson for making

statements that “criticize other Board members for

taking positions that differ from his own.” Pet. App.

42a. If official punishment for disagreeing with the

political majority is not a violation of the First Amendment, nothing is.

HCC worries (Pet. 21-22) “that some members of

local elected boards [may] make statements denigrating members of the public because of race, sex, or

religion,” observing that “[c]ensure provides an elected

body with a well-understood tool for repudiating those

remarks.” But the shoe could just as well be on the

other foot: Bigots could claim the majority and assert

the right to announce, with the bullhorn of “government speech,” the state’s official disapproval of racial

and religious tolerance. Unless HCC is willing to disclaim the right of a political minority to be free from

official censure for speaking out in favor of liberalism

and tolerance, as well, its position is without principle.

The bottom line is that the First Amendment does

not permit political majorities to dictate political

orthodoxy backed by threat of official sanction. That

should not be a controversial statement.

None of this is to say, as HCC unconvincingly asserts (Pet. 23), that legislative censures for speech are

wholesale unconstitutional under the Fifth Circuit’s

rule. The point is only that a legislative body may not

censure its members for their protected speech taking

place outside the legislative process itself.

Concerning matters outside the legislative process,

censures remain available for members’ conduct, and

for speech not protected by the First Amendment. A

censure would be permissible for illegal marijuana use,

for example, but not for statements supporting the

legalization of marijuana use. Likewise, a censure

would be permissible for slander, but not for statements that merely criticize.

Concerning matters within the legislative process,

censure remains available for both conduct and speech.

As we noted at the outset, the deliberations of an elected body’s members within the “legislative sphere” are

immune from judicial scrutiny (Gravel v. United

States, 408 U.S. 606, 624-625 (1972)) and may be

“questioned” only by the lawmaking body itself (U.S.

Const. Art I, § 6 cl. 1). Thus, the power to censure

members for speech or conduct “integral” to lawmaking

“processes” (Gravel, 408 U.S. at 625) is undeniable.

“[B]ecause citizens may not sue legislators for their legislative acts, legislative bodies are left to police their

own members” for such acts. Whitener v. McWatters,

112 F.3d 740, 744 (4th Cir. 1997).

Beyond those settled boundaries, however, the

First Amendment does not permit a lawmaking body to

punish one of its own, with the imprimatur of official

government action, simply for engaging in protected

political expression.

B. The petition does not present a conflict

warranting the Court’s review

The merits aside, the petition does not present a

conflict warranting the Court’s intervention at this

time. HCC asserts that there is a division among the

courts of appeals on the question whether legislative

bodies may censure their members for their protected

speech. But any conflict on this issue is greatly over-

stated, and the Court has repeatedly denied petitions

presenting similar questions. See supra at 11 n.4. The

same outcome is warranted here.

1. The Tenth Circuit is the only other court of appeals to resolve the question presented in even remotely analogous circumstances. See Phelan v. Laramie

Cnty. Cmty. Coll. Bd. of Trs., 235 F.3d 1243, 1247-1248

(10th Cir. 2000), cert. denied, 532 U.S. 1020 (2001).

But unlike here, the censure in that case “carried no

penalties” and “did not prevent [the plaintiff] from performing her official duties.” Id. at 1248. The same cannot be said in this case. See Pet. App. 4a n.7; 43a-44a.

Although the Fifth Circuit did not rely on that distinction (Pet. App. 15a n.55), the Tenth Circuit is not

bound to agree and could hold that the practical infirmities imposed by the censure in this case call for the

same outcome reached by the court below.

Moreover, in holding that the board’s censure in

Phelan was only a “minimal * * * discouragement” that

“[did] not injure[] [the plaintiff’s] free speech rights”

(235 F.3d at 1248), the Tenth Circuit did not cite, let

alone discuss, this Court’s decision in Bond. Nor did

the Tenth Circuit consider the cases relied upon by the

Fifth Circuit in this case for the proposition that

censures are “punitive in a way that mere criticisms,

accusations, and investigations are not.” Pet. App. 13a

(quoting Colson v. Grohman, 174 F.3d 498, 512 n.7 (5th

Cir. 1999)). To the extent there is a conflict at all, the

Tenth Circuit may decide to revisit its First Amendment holding in a future case.5

2. HCC incorrectly asserts that there is a deeper

conflict involving the Third, Fourth, Sixth, and Ninth

The Westlaw database indicates that Phelan has been cited, on

average, in about two opinions per year since it was decided, but

rarely for its resolution of the question presented.

Circuits and the Supreme Court of Vermont. Each of

the cited cases is readily distinguished, as the Fifth

Circuit itself explained. Pet. App. 16a-17a.

Two of the cited cases—Whitener and Zilich v.

Longo, 34 F.3d 359 (6th Cir. 1994)—involve censures

for obstructive or illegal conduct, not protected political

speech. The Fourth Circuit in Whitener made this point

express, explaining that the board had censured the

plaintiff “for his lack of decorum, not for expressing his

view on policy.” 112 F.3d at 745. Whitener also involved

claims against individual lawmakers, and the outcome

turned on the defendants’ absolute legislative immunity (id. at 744), not any holding concerning the First

Amendment. HCC acknowledges (Pet. 17-18) that the

issue of immunity is not present in this case.

Much the same goes for Zilich, in which the plaintiff was censured for violating the city council’s residency requirement. See 34 F.3d at 361 n.2. The censure in that case was not for protected speech and thus

does not implicate the question framed by the petition,

which is limited by its own terms to censures “in response to a member’s speech.” Pet. i. Beyond that, the

resolution in Zilich “contain[ed] no punishment or penalty” (34 F.3d at 364), which again is not true here. See

Pet. App. 4a n.7; 43a-44a.

HCC’s citation to LaFlamme v. Essex Junction

School District, 750 A.2d 993 (Vt. 2000), cert. denied,

531 U.S. 927 (2000), is doubly misplaced. First, that

case concerned the question whether a censure is “actionable under the Due Process Clause” and can support “a finding of denial of due process.” Id. at 999.

That is not an issue present in this appeal.

Second, although LaFlamme had involved a First

Amendment claim earlier in the proceedings, a jury

had rejected the claim on factual grounds. 750 A.2d at

998. Notably, however, the jury had been instructed in

a manner consistent with the Fifth Circuit’s ruling in

this case: It was told that a lawmaking committee had

only “the right to censure the plaintiff for words and

conduct which occurred during committee meetings,”

but it “did not have the authority to censure the plaintiff for conduct which occurred outside of committee

meetings.” Id. at 997 (emphasis added). Under that instruction, Wilson would be entitled to relief.

As for Blair v. Bethel School District, 608 F.3d 540

(9th Cir. 2010), and Werkheiser v. Pocono Township

Board of Supervisors, 704 F. App’x 156 (3d Cir. 2017),

cert. denied, 138 S. Ct. 1001 (2018), neither of those

cases involved a censure at all. The plaintiffs in both

sued after being removed from board-appointed positions, not after being censured. Blair, 608 F.3d at 546;

Werkheiser, 704 F. App’x at 157-158. Although the

Blair court analogized the removal to a censure, removal in fact presents a distinct legal question. As the

Ninth Circuit acknowledged, “[t]he Board’s objective in

stripping Blair of his leadership position, ostensibly,

wasn’t to punish him for his advocacy but instead to

put in place a vice president who better represented

the majority view.” 608 F.3d at 544 (emphasis added).

Similarly, the court in Werkheiser noted that “[the

board member’s] job was a political one and depended

on maintaining favor with a majority of his colleagues

on the Board.” 704 F. App’x at 158 (emphasis added).

Those cases thus implicate a legislative body’s interest

in selecting its own leadership and managing its

internal governance structures. Here, in contrast, the

censure did not implicate the same kind of internal

governance issues.

There is accordingly no evidence that this case

would have been decided any differently in the jurisdictions identified in the petition.

C. This case is not a suitable vehicle

This case is, in any event, a poor vehicle for deciding the question presented.

For starters, the case was dismissed on the pleadings. Pet. App. 20a-28a. HCC characterizes this as a

feature, but for purposes of this Court’s review, it is a

bug. “Determining whether a plaintiff’s First Amendment rights were adversely affected by retaliatory conduct is a fact intensive inquiry.” Brennan v. Norton,

350 F.3d 399, 419 (3d Cir. 2003) (quoting Suarez Corp.

Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)).

For example, there have not been any conclusive findings of what Wilson said, about what or whom, in what

forum, to what audience. And the complaint does not

allege the missing details. Without these facts settled,

this Court’s review would be premature.

What is more, the facts that are known suggest

this case does not cleanly present the question presented in the petition. Contrary to HCC’s (Pet. 3) and

the dissent’s assertion (Pet. App. 32a), the resolution of

censure here imposed more than a mere written reprimand. As we have noted repeatedly, it also blocked

his access to a discretionary bank account and denied

him prospective reimbursements for travel. Pet. App.

4a n.7; 44a-45a. It is therefore wrong to say, as does

the petition (at 3), that “this case concerns only [the

Board’s] expression” of disapproval; or, as does the

dissent (at 32a), that the censure here was “unaccompanied by other personal penalties.”

To be sure, the Fifth Circuit did not rely on the

additional penalties in holding that Wilson’s case could

proceed. See Pet. App. 15a n.55. But that conclusion is

debatable, and this Court need not take that same

approach. And if we are correct that those other

infirmities are sufficient burdens to state a claim, then

Wilson would be entitled to relief regardless of this

Court’s resolution of the question presented.

CONCLUSION

The petition should be denied.

Respectfully submitted.