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

No. 20-804

IN THE

Supreme Court of the United States

d

HOUSTON COMMUNITY COLLEGE SYSTEM ,

Petitioner,

—v.—

DAVID BUREN WILSON ,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION,

INSTITUTE FOR FREE SPEECH, AND

THE RUTHERFORD INSTITUTE AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

Alan Gura

INSTITUTE FOR FREE SPEECH

1150 Connecticut Ave., N.W.

Suite 801

Washington, DC 20036

John W. Whitehead

Douglas R. McKusick

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

Emerson Sykes

Counsel of Record

Vera Eidelman

Jennesa Calvo-Friedman

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

(212) 549-2500

esykes@aclu.org

David D. Cole

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th St., NW

Washington, DC 20005

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTERESTS OF AMICI CURIAE .............................. 1

STATEMENT ............................................................... 2

SUMMARY OF THE ARGUMENT ............................ 5

ARGUMENT ................................................................ 7

I.

THE FIRST AMENDMENT PROTECTS THE

SPEECH AT ISSUE IN THIS CASE ................... 7

II.

DISCIPLINARY CENSURE CONSTITUTES

PUNISHMENT, PARTICULARLY WHEN IT

INCLUDES TANGIBLE PENALTIES ................. 8

A.

The Board Imposed Substantial Tangible

Penalties on Wilson for His Protected

Speech ......................................................... 10

B.

Tangible Penalties Imposed Because of

Protected Speech Trigger First Amendment

Scrutiny, Regardless of Whether They

Entirely Preclude a Legislator from

Performing His Duties ............................... 14

CONCLUSION........................................................... 17

i

TABLE OF AUTHORITIES

CASES

Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc.,

570 U.S. 205 (2013) ................................................ 11

Bantam Books, Inc. v. Sullivan,

372 U.S. 58 (1963) .................................................. 12

Bill Johnson’s Rests., Inc. v. NLRB,

461 U.S. 731 (1983) .................................................. 7

Bond v. Floyd,

385 U.S. 116 (1966) .................................... 7, 8, 9, 11

Cohen v. California,

403 U.S. 15 (1971) .................................................. 16

Connick v. Myers,

461 U.S. 138 (1983) .................................................. 7

Elrod v. Burns,

427 U.S. 347 (1976) ................................................ 14

Hartman v. Moore,

547 U.S. 250 (2006) ................................................ 14

Laird v. Tatum,

408 U.S. 1 (1972) .................................................... 10

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274 (1977) ................................................ 14

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) .................................................. 7

NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982) .................................................. 7

Nat’l Endowment for the Arts v. Finley,

524 U.S. 569 (1998) ................................................ 13

ii

Nieves v. Bartlett,

139 S. Ct. 1715 (2019) ............................................ 14

Org. for a Better Austin v. Keefe,

402 U.S. 415 (1971) ................................................ 12

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) ................................................ 16

Regan v. Tax’n with Representation of Wash.,

461 U.S. 540 (1983) ................................................ 13

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995) ................................................ 13

Rust v. Sullivan,

500 U.S. 173 (1991) ................................................ 11

Simon & Schuster, Inc. v. Members of New York

State Crime Victims Bd.,

502 U.S. 105 (1991) ................................................ 12

United States v. Nat’l Treasury Emps. Union,

513 U.S. 454 (1995) ................................................ 12

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

319 U.S. 624 (1943) ................................................ 16

Zelnik v. Fashion Inst. of Tech.,

464 F.3d 217 (2d Cir. 2006) ................................... 14

OTHER AUTHORITIES

Lindsay Ellis, Former HCC Trustee Chris Oliver Gets

70 Months in Prison After Bribery Conviction,

Chron (Jan. 8, 2018),

https://perma.cc/8ZHZ-X6MC .................................. 2

Ted Oberg, Final Settlement with Former Houston

Community College Chancellor Comes to $850,000,

ABC 13 (Aug. 13, 2015),

https://perma.cc/92RP-YJGM .................................. 3

iii

Ted Oberg, HCC’s Real Estate Portfolio: Floodplains,

Empty Warehouses, Questionable Deals Paid for

with Your Tax Dollars, ABC 13 (Apr. 29, 2015),

https://perma.cc/2UAG-7PFX .................................. 3

iv

INTERESTS OF AMICI CURIAE1

The American Civil Liberties Union (ACLU)

is a nationwide, nonprofit, nonpartisan organization

with nearly two million members dedicated to the

principles of liberty and equality embodied in our

nation’s Constitution and civil rights laws. Since its

founding in 1920, the ACLU has frequently appeared

before this Court in First Amendment cases, both as

direct counsel and as amicus curiae. To preserve

freedom of speech, the ACLU and its affiliates have

appeared in countless cases throughout the country.

Accordingly, the proper resolution of this case is a

matter of substantial interest to the ACLU and its

members.

The Rutherford Institute is an international

nonprofit

organization

headquartered

in

Charlottesville, Virginia. Founded in 1982 by its

President, John W. Whitehead, the Institute

specializes in providing legal representation without

charge to individuals whose civil liberties are

threatened or infringed and in educating the public

about constitutional and human rights issues. The

Rutherford Institute works tirelessly to resist tyranny

and threats to freedom, ensuring that the government

abides by the rule of law and is held accountable when

it infringes on the rights guaranteed to persons by the

Constitution and laws of the United States.

The Institute for Free Speech is a

nonpartisan, nonprofit organization dedicated to the

1 All parties have given blanket consent to the filing of amicus

briefs in this case. No party has authored this brief in whole or

in part, and no one other than amici, their members, and their

counsel have paid for the preparation or submission of this brief.

1

protection of the First Amendment rights of speech,

press, assembly, and petition. In addition to scholarly

and educational work, the Institute represents

individuals and civil society organizations in litigation

securing their First Amendment liberties.

STATEMENT

Petitioner Houston Community College System

(HCC or the Board) is a political subdivision of Texas,

responsible for operating community colleges in the

Houston area. J.A. 6 (Am. Compl. ¶ 4). It is managed

by its Board of Trustees, each of whom is elected to

represent the interests of the people in a specific

district. Id. Respondent David Wilson served as an

elected trustee from 2013 through 2019.

Over that same period, the Board faced many

public accusations—some from local reporters, others

via lawsuits—of significant mismanagement and

corruption. In 2018, one now-former trustee, who had

served on the Board for more than 20 years, was

convicted on federal bribery charges for accepting

hundreds of thousands of dollars in exchange for

influence over HCC’s contract work.2 The judge in that

case was so troubled by the allegations of misconduct

that she asked the defendant whether the college was

a “cesspool” where such conduct was “standard

procedure.”3

Three years earlier, in 2015, HCC settled a

wrongful termination lawsuit with a former Acting

2 Lindsay Ellis, Former HCC Trustee Chris Oliver Gets 70 Months

in Prison After Bribery Conviction, Chron (Jan. 8, 2018),

https://perma.cc/8ZHZ-X6MC.

3 Id.

2

Chancellor who alleged she had been fired for talking

to the Federal Bureau of Investigation about trustees’

attempts to steer contracts to their friends and

families.4

That same year, a local reporter’s investigation

found that HCC had been entering into “questionable

land deals for years,” including buying, then selling,

and then rebuying a vacant lot at a loss of millions of

dollars, and purchasing acres of land that the Federal

Emergency Management Agency deemed high-risk for

floods, while simultaneously announcing that there

were no plans to ever use the land.5

During his tenure on the Board, Wilson openly

criticized much of the Board’s conduct. He spoke to the

press about his disapproval of HCC’s choice to fund an

expensive college campus in Qatar and attempting to

acquire property outside the taxpaying district for a

new campus—both instances, as he saw it, of wasting

taxpayer money. J.A. 7 (Am. Compl. ¶ 6). He

expressed concern to residents in other trustees’

districts about how HCC resources were being spent.

Id. at 8 (Am. Compl. ¶ 7). And, after another trustee

violated the Board’s bylaws by casting a vote remotely,

he sued for a declaration that doing so violated the

Board’s rules. Id. at 7 (Am. Compl. ¶ 6). When the

Chair of the Board then excluded Wilson from an

executive session, again without a basis in the Board’s

4 Ted Oberg, Final Settlement with Former Houston Community

College Chancellor Comes to $850,000, ABC 13 (Aug. 13, 2015),

https://perma.cc/92RP-YJGM.

5 Ted Oberg, HCC’s Real Estate Portfolio: Floodplains, Empty

Warehouses, Questionable Deals Paid for with Your Tax Dollars,

ABC 13 (Apr. 29, 2015), https://perma.cc/2UAG-7PFX.

3

bylaws, Wilson again sought redress through the

courts. Id.

On January 18, 2018, the Board censured

Wilson for, among other things, “us[ing] public media

to criticize[] other Board members,” accusing Board

members of unethical conduct on his own website,

filing lawsuits alleging that HCC violated its own

bylaws, and otherwise “demonstrat[ing] a lack of

respect for the Board’s collective decision-making

process.” Pet. App. 42a–43a. The Board accordingly

adopted a Resolution of Censure that declared

Wilson’s conduct “not only inappropriate, but

reprehensible”—and concluded that “such conduct

warrants disciplinary action.” Id. at 44a.

The Board therefore “PUBLICLY CENSURED”

Wilson, invoking, in its own words, “censorship [that]

is the highest level of sanctions available to the Board

under Texas law since neither Texas law nor board

policy allow the Board to remove a Board member

from elected office.” Id.

Critically, the Board did not merely express its

disapproval, but imposed formal sanctions on Wilson,

depriving him of multiple privileges of his office:

•

it declared Wilson “ineligible for election to

Board officer positions;”

•

it made him “ineligible for reimbursement for

any College-related travel;”

•

it required him to get “Board approval” to

“access [any] funds in his Board account;” and

•

it “direct[ed Wilson] . . . to immediately cease

and desist from . . . any repeat of improper

behavior,” and warned that failure to do so

4

would “constitute grounds for further

disciplinary action by the Board.”

Id.

SUMMARY OF THE ARGUMENT

Most of the briefing in this case concerns a

question the Court need not resolve: whether a pure

censure resolution, imposed on a member of a

legislative body for protected speech outside the

chamber, triggers First Amendment scrutiny. The

Court need not resolve that issue because the Board

here did not issue a “pure censure,” merely expressing

its disapproval of Wilson’s speech. It imposed tangible

penalties, stripping him of privileges enjoyed by all

other trustees, and ordering him to cease and desist

further public criticism of the Board. HCC ignores

these facts; the Court cannot. Thus, to resolve this

case, the Court need only decide that a censure

resolution, issued pursuant to an elected body’s

disciplinary powers and including tangible penalties,

triggers First Amendment scrutiny where, as alleged

here, it was issued in response to protected speech

that occurred outside the elected body.

I. The speech at issue here was indisputably

protected. Wilson spoke on issues of public concern,

calling the public’s attention to conduct by other

trustees of the Board that he deemed unethical and in

violation of the Board’s own bylaws. Members of

legislative bodies, no less than anyone else, enjoy basic

First Amendment freedoms, and cannot be penalized

for protected speech that takes place outside the

chamber.

II.A. While an elected body undoubtedly has

authority to express its disapproval of a member’s

5

speech, imposing tangible disciplinary penalties in

response to otherwise protected speech is categorically

different, and it triggers First Amendment scrutiny.

The censure resolution at issue here imposed tangible

“disciplinary action” on Wilson: it stripped him of the

privileges of his elected position, including the ability

to run for Board positions, to obtain reimbursement

for college-related travel, and to access Board funds

for community relations work. The resolution also

ordered him to “cease and desist” from publicly

criticizing the Board on pain of further discipline. This

is not merely “speech and counter-speech,” as HCC

would have it. The Board used its regulatory authority

over its trustees to assess tangible penalties against

Wilson. That makes all the difference.

II.B. The district court concluded that the

penalties did not violate the First Amendment

because they did not entirely preclude Wilson from

performing his duties as a trustee, and the United

States as amicus seems to endorse that view. But First

Amendment scrutiny is triggered by any tangible

penalty imposed because of protected speech. A public

employer who fined an employee $25 for protected

speech outside the scope of his employment, or who

reduced the employee’s meal allowance by the same

amount in retaliation for protected speech, would have

no defense on the ground that the employee was still

able to perform their job. The complaint alleges that

the Board imposed tangible penalties in response to

Wilson’s protected speech, and as such, it states a

First Amendment claim.

6

ARGUMENT

I.

THE FIRST AMENDMENT PROTECTS

THE SPEECH AT ISSUE IN THIS CASE.

There is no dispute that “the Constitution

protects Wilson’s right to speak in public on policy

issues.” Pet. Br. 10. Nor could there be.

The speech at issue—alleging improprieties

and corruption by a Board elected by the people, with

control over substantial taxpayer dollars—addressed

matters of public concern. Criticism of government

“occupies ‘the highest rung of the hierarchy of First

Amendment values.’” Connick v. Myers, 461 U.S. 138,

145 (1983) (quoting NAACP v. Claiborne Hardware

Co., 458 U.S. 886, 913 (1982)). Its careful protection

reflects our “profound national commitment to the

principle that debate on public issues should be

uninhibited, robust, and wide-open.” N.Y. Times Co. v.

Sullivan, 376 U.S. 254, 270 (1964). And such protected

speech “may well include vehement, caustic, and

sometimes unpleasantly sharp attacks on government

and public officials.” Id.

Wilson’s filing of lawsuits alleging illegal

conduct by the Board is also protected. The right to

petition and access courts for redress undoubtedly

protected by the First Amendment. See Bill Johnson’s

Rests., Inc. v. NLRB, 461 U.S. 731, 741 (1983)

(affirming that the “right of access to the courts is an

aspect of the First Amendment right to petition”).

That Wilson is an elected representative does

not change the analysis. Indeed, this Court squarely

rejected such a distinction more than fifty years ago.

In Bond v. Floyd, 385 U.S. 116 (1966), the Court held

that the state cannot exclude an elected

7

representative from a representative body because he

publicly criticized the government. The State in Bond

argued that the First Amendment should protect only

“the citizen-critic,” not “a legislator.” Id. at 136. The

Court found “no support for this distinction.” Id. On

the contrary, it held that legislators’ ability to publicly

criticize the government is essential to our system of

government, “so that their constituents can be fully

informed[,] . . . be better able to assess their

qualifications[, and] . . . be represented in

governmental debates by the person they have elected

to represent them.” Id. at 136–37. Indeed, the Court

warned of the danger that, if granted the power to

discipline legislators for their public criticisms,

legislatures “could . . . utilize[]” it precisely as

Petitioner did here—“to restrict the right of legislators

to dissent from . . . a majority of their colleagues under

the guise of judging their loyalty[.]” Id. at 132.6

II.

DISCIPLINARY CENSURE CONSTITUTES

PUNISHMENT, PARTICULARLY WHEN IT

INCLUDES TANGIBLE PENALTIES.

The parties’ briefs explore in extensive detail

the history of legislative censure, but this case can be

resolved on narrower grounds, without addressing the

precise First Amendment limits on pure censure. That

is because this case does not involve pure censure, but

6 This case concerns only the rights of legislators to speak outside

the legislative chamber. Legislatures have broad authority to

censure members for speech or conduct within the legislative

sphere. And the First Amendment will generally not be

implicated by a legislature’s disciplining of a member for conduct,

as opposed to speech, outside the legislative sphere. Nor does this

case involve the decision of one party to discipline one of its own

members.

8

“censure plus.” The Board did not merely engage in

debate with Wilson, as HCC’s brief would have it, see

Pet. Br. 12–13, 15; rather, the Board imposed formal

disciplinary sanctions, Pet. App. 42a–45a. The Court

therefore need not decide whether and under what

circumstances a “pure censure” might violate the First

Amendment.

It is sufficient to hold that, when representative

bodies impose formal, tangible discipline on their

members for their protected speech outside the

chamber, that action is subject to First Amendment

scrutiny. See Bond, 385 U.S. at 136–37. Indeed,

neither the Board nor the United States even

attempts to argue otherwise. Instead, both defend the

unremarkable proposition that legislative bodies have

a right to express their views, as if all the Board did

here was engage in a debate with Wilson. Pet. Br. 13

(contending that the censure was merely “the

expression of a public body’s opinion”). In their view,

a ruling that Wilson stated a claim would

impermissibly silence one side of the debate—

HCC’s—in the name of protecting the other side. See

id. at 9 (arguing that “both statements[, Wilson’s and

HCC’s,] are part of the cycle of speech and counterspeech that the First Amendment seeks to foster”); see

also U.S. Br. 19 (“governmental counter-speech, even

if highly critical of the member being spoken about,

does not violate that member’s free-speech rights”).

But this argument mischaracterizes what the Board

did, and therefore erects and knocks down a straw

man, without addressing what actually happened.

9

A.

The Board Imposed Substantial

Tangible Penalties on Wilson for His

Protected Speech.

Legislatures must have the ability to express

their views. A pure statement of legislative

displeasure is not generally restricted by the First

Amendment. “Government speech” has its place, but

the Board’s resolution was not mere speech. While the

resolution did condemn Wilson’s speech as “not only

inappropriate, but reprehensible,” it did not stop

there.

In particular, the Board went on to find that

Wilson’s “disrespect” for the Board “warrant[ed]

disciplinary action.” Pet. App. 44a (emphasis added).

And it invoke[d] “the highest level of sanctions

available to the Board under Texas law . . . .” Id. The

Board revoked three privileges enjoyed by all other

trustees, and ordered Wilson to cease further criticism

on pain of yet more discipline. It barred Wilson from

running for any elected position within the Board,

getting reimbursed for travel, and accessing his Board

funds without Board approval. Id. at 44a–45a.

There is a fundamental difference between

government expression and government imposition of

formal disciplinary penalties—and it is one of

constitutional magnitude. Indeed, HCC acknowledges

that when, as here, the government moves beyond the

mere expression of opinion to exercising its

“regulatory, proscriptive, or compulsory” authority,

“generating ‘specific present objective harm or a

threat of specific future harm,’ [its punishment] can

cause actionable injury under the Free Speech

Clause.” Pet. Br. 11–12 (quoting Laird v. Tatum, 408

U.S. 1, 11, 14 (1972)). That is precisely what the Board

10

did here. It exercised its proscriptive and regulatory

power to order Respondent to cease and desist from

public criticism, and its regulatory and compulsory

authority to suspend privileges and benefits. It could

have merely adopted a resolution expressing its views

under Article B § 1 of its bylaws. J.A. 35–38. Instead,

it invoked its separate disciplinary power under

Article A § 11(f) of the bylaws, Id. at 34, in order to

impose formal discipline.

The ban on seeking election inside the board is

comparable to Mr. Bond’s exclusion from the

representative body. See Bond, 385 U.S. at 349 & n.13.

It is different in degree, but not in kind. Both restrict

their targets’ representative privileges because of

protected speech outside the chamber.

The two restrictions on access to funds are

similarly deprivations of legislative privileges every

other trustee enjoyed, again because of protected

speech outside the chamber. It is of no moment that

the legislature revoked privileges rather than

imposing a fine or other affirmative penalty. “[T]he

Government may not deny a benefit to a person on a

basis that infringes his constitutionally protected

freedom of speech even if he has no entitlement to that

benefit.” Agency for Int’l Dev. v. All. for Open Soc’y

Int’l, Inc., 570 U.S. 205, 214 (2013) (cleaned up). Thus,

in the context of government funding, while the

government can impose conditions on speech within a

funded program, it may not impose conditions or

revoke funding based on speech “outside the scope of

the federally funded program.” Rust v. Sullivan, 500

U.S. 173, 197 (1991) (emphasis added). Similarly,

even if Wilson had no entitlement to travel

reimbursement or access to Board funds, because the

Board revoked them based on what Wilson said

11

outside the legislative sphere, the revocations trigger

First Amendment scrutiny.

The revocation of travel reimbursement and

access to Board funds are also akin to similar

restrictions imposed on public employees. A public

employer who deprived an employee of the right to

seek reimbursement for travel based on the

employee’s speech outside the workplace would

plainly trigger First Amendment scrutiny, and would

not be viewed as merely engaging in “government

speech.” See Simon & Schuster, Inc. v. Members of

New York State Crime Victims Bd., 502 U.S. 105, 115

(1991) (“[I]mpos[ing] a financial burden on speakers

because of the content of their speech” is

“presumptively

inconsistent

with

the

First

Amendment.”).

The Board’s directive that Wilson cease and

desist from “any repeat of improper behavior,” Pet.

App. 45a, on pain of “further disciplinary action,” id.,

also infringes Wilson’s First Amendment rights.

Because the basis for the initial disciplinary action

was Wilson’s public criticism of the Board outside the

chamber, this ban constituted a prior restraint.

“[U]nlike an adverse action taken in response to

actual speech, this ban chills potential speech before

it happens.” United States v. Nat’l Treasury Emps.

Union, 513 U.S. 454, 468 (1995). Such government

restrictions “come[] to [court] bearing a heavy

presumption against [their] constitutional validity,”

Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963),

and the government “carries a heavy burden of

showing justification,” Org. for a Better Austin v.

Keefe, 402 U.S. 415, 419 (1971). Whether it in fact

restrained Wilson is beside the point; the government

12

presumptively cannot order a citizen to stop criticizing

it.

The fact that all of these sanctions were

triggered by the Board’s disapproval of the particular

views Wilson expressed further underscores the

unconstitutionality of the Board’s action. “[A]ttempts

to suppress a particular point of view are

presumptively unconstitutional in funding, as in other

contexts.” Rosenberger v. Rector & Visitors of Univ. of

Va., 515 U.S. 819, 830 (1995) (holding that denial of

funding to student group for expressing religious

viewpoint violated the First Amendment); see also id.

at 835 (rejecting government’s argument that “from a

constitutional standpoint, funding of speech differs”

from other government action subject to First

Amendment scrutiny); see also Nat’l Endowment for

the Arts v. Finley, 524 U.S. 569, 587 (1998) (noting

that “even in the provision of subsidies, the

Government may not ‘ai[m] at the suppression of

dangerous ideas’”) (quoting Regan v. Tax’n with

Representation of Wash., 461 U.S. 540, 550 (1983)).

None of this is mere “government speech,” Pet.

Br. 30–33, and therefore HCC’s brief simply misses

the mark. The Board’s censure resolution was

expressly designed not just to express disapproval, but

also to impose “disciplinary action” and to quash

Wilson’s public criticism going forward.

13

B.

Tangible Penalties Imposed Because

of Protected Speech Trigger First

Amendment Scrutiny, Regardless of

Whether They Entirely Preclude a

Legislator from Performing His

Duties.

The district court reasoned that the penalties

did not violate Wilson’s First Amendment rights

because Wilson was “not prevented from performing

his official duties.” Pet. App. 27a. But the penalties

cannot be so easily disregarded. The First Amendment

does not protect against only those penalties that

preclude one from performing one’s job, but against

any “adverse action” that places the individual in a

“‘worse position.’” Nieves v. Bartlett, 139 S. Ct. 1715,

1722 (2019) (quoting Mt. Healthy City Sch. Dist. Bd.

of Educ. v. Doyle, 429 U.S. 274, 286 (1977)); Hartman

v. Moore, 547 U.S. 250, 256 (2006).

Tangible penalties imposed because of one’s

protected speech trigger First Amendment scrutiny.

Elrod v. Burns, 427 U.S. 347, 359 n.13 (1976)

(plurality opinion) (noting that First Amendment

“[r]ights are infringed both where the government

fines a person a penny for being a Republican and

where it withholds the grant of a penny for the same

reason”). In the context of assessing retaliation claims

in employment, for example, “[a]dverse employment

actions may include negative evaluation letters,

express accusations of lying, assignment of lunchroom

duty, reduction of class preparation periods, failure to

process teacher’s insurance forms, transfer from

library to classroom teaching as an alleged demotion,

and assignment to classroom on fifth floor which

aggravated teacher's physical disabilities.” Zelnik v.

Fashion Inst. of Tech., 464 F.3d 217, 226 (2d Cir. 2006)

14

(cleaned up). If assignment to lunchroom duty triggers

First Amendment scrutiny when imposed in response

to protected speech, certainly the substantial

penalties imposed on Wilson do also.

It is irrelevant whether Wilson could still do his

job, or still speak out. If the Board fined Wilson $25

for his public criticism, or reduced his reimbursable

travel allowance by $25, he would still be able to do

his job, but imposing such a tangible penalty for

protected speech would nonetheless violate the First

Amendment. Nor is the test whether Wilson was

successfully silenced by the Board’s action. A town

that

charged

Republicans

$100

more

for

demonstration permits than Democrats could not

defend its action by noting that the Republican

demonstration went forward anyway.

For its part, the United States acknowledges, in

a classic understatement, that the penalties imposed

on Wilson “are less readily characterized as

governmental speech.” U.S. Br. 21. But it dismisses

their relevance in a sentence, because “the district

court found that respondent had not shown any

retrospective injury resulting from those punitive

measures, and any prospective injury has since been

mooted by respondent’s failure to win reelection.” Id.

at 21–22 (cleaned up). But as Respondent argues, the

fact that Wilson cannot obtain prospective relief does

not mean he did not suffer retrospective injury. Resp.

Br. 34–35. A public employee who, in retaliation for

public criticism of the mayor, is denied eligibility for

travel reimbursement and the opportunity to serve on

employee committees, and ordered to cease criticizing

the mayor, would have a First Amendment claim for

damages for such action, even if he subsequently took

15

another job and therefore did not need prospective

relief.

While action that is truly de minimis might not

trigger First Amendment scrutiny, the disciplinary

action imposed on Wilson was anything but; on the

contrary, it was the “highest level of sanctions

available to the Board under Texas law.” Pet. App.

44a. Accordingly, his complaint stated a claim under

the First Amendment, and if proven, he should be

entitled to any damages that flowed from the Board’s

disciplinary action, including nominal, compensatory,

or punitive damages.

Upholding the censure resolution and its

accompanying disciplinary action as mere government

speech would ignore the undisputed facts on the face

of the Board’s resolution itself. It would also have the

perverse result of affording more First Amendment

protection to government bodies than to private

speakers, allowing them to fight criticism not merely

by defending themselves through words, but also by

imposing tangible penalties on their adversaries. And

while it is true that “[t]he Free Speech Clause . . . does

not regulate government speech,” Pleasant Grove City

v. Summum, 555 U.S. 460, 467 (2009), the First

Amendment exists to ensure that “no official, high or

petty, can prescribe what shall be orthodox in politics,

nationalism, religion, or other matters of opinion,” W.

Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642

(1943), and “to . . . put[ ] the decision as to what views

shall be voiced largely into the hands of each of us,”

rather than the government, Cohen v. California, 403

U.S. 15, 24 (1971). Far from serving such purposes,

accepting HCC’s position would severely undercut

them.

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CONCLUSION

For the reasons stated above, the Court

should affirm the judgment below.

Respectfully submitted,

Emerson Sykes

Counsel of Record

Vera Eidelman

Jennesa Calvo-Friedman

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

David Cole

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

915 15th Street, NW

Washington, DC 20005

John W. Whitehead

Douglas R. McKusick

THE RUTHERFORD INSTITUTE

109 Deerwood Road

Charlottesville, VA 22911

Alan Gura

INSTITUTE FOR FREE SPEECH

1150 Connecticut Ave., N.W.

Suite 801

Washington, DC 20036

Date: September 24, 2021

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