Hous. Cmty. Coll. Sys. v. Wilson

• Decision Date: 24 March 2022
• Docket Number: 20-804
• Citation: 142 S.Ct. 1253
• Parties: HOUSTON COMMUNITY COLLEGE SYSTEM, Petitioner v. David Buren WILSON
• Court: U.S. Supreme Court

142 S.Ct. 1253

HOUSTON COMMUNITY COLLEGE SYSTEM, Petitioner

v.David Buren WILSON

No. 20-804

Supreme Court of the United States.

Argued November 2, 2021

Decided March 24, 2022

Mr. Richard A. Morris, Houston, TX, for the petitioner.

Mr. Sopan Joshi for the United States as amicus curiae, by special leave of the Court, supporting the petitioner.

Mr. Michael B. Kimberly, Washington, DC, for the respondent.

Jeffrey L. Fisher, Edward C. Dumont, Stanford Law School Supreme Court Litigation Clinic, Stanford, CA, E. Ashley Smith, Y. Nicole Montgomery, Isamara Gamez Anderson, Lucie M.S. Tredennick, Houston Community College System, Houston, TX, Richard A. Morris, Counsel of Record, Jonathan G. Brush, Rogers, Morris & Grover L.L.P., Houston, TX, for Petitioner.

Eugene R. Fidell, Yale Law School, Supreme Court Clinic, New Haven, CT, Keith A. Gross, League City, TX, Michael B. Kimberly, Counsel of Record, Paul W. Hughes, Sarah P. Hogarth, Charles Seidell, McDermott Will & Emery LLP, Washington, DC, for Respondent.

Justice GORSUCH delivered the opinion of the Court.

After years of acrimony, the Board of Trustees of the Houston Community College System censured one of its members, David Wilson. Mr. Wilson responded by filing a lawsuit challenging the Board's action. That suit now presents us with this question: Did the Board's censure offend Mr. Wilson's First Amendment right to free speech?

I

A

The Houston Community College System (HCC) is a public entity that operates various community colleges in Texas. Its Board of Trustees consists of nine members, each of whom is elected from a single-member district for a 6-year term. Mr. Wilson was elected to the Board in 2013. From the start, his tenure was a stormy one. Often and strongly, he disagreed with many of his colleagues about the direction of HCC and its best interests. Soon, too, he brought various lawsuits challenging the Board's actions. By 2016, these escalating disagreements led the Board to reprimand Mr. Wilson publicly. According to news reports, Mr. Wilson responded by promising that the Board's action would " ‘never ... stop me.’ " Brief for Petitioner 3, and nn. 3, 4.

Nor did it. In the ensuing months, Mr. Wilson charged the Board in various media outlets with violating its bylaws and ethical rules. He arranged robocalls to the constituents of certain trustees to publicize his views. He hired a private investigator to surveil another trustee, apparently seeking to prove she did not reside in the district that had elected her. He also filed two new lawsuits in state court. In the first, Mr. Wilson alleged that the Board had violated its bylaws by allowing a trustee to vote via videoconference. When his colleagues excluded him from a meeting to discuss the lawsuit, Mr. Wilson filed a second suit contending that the Board and HCC had " ‘prohibited him from performing his core functions as a Trustee.’ " Brief in Opposition 8 (quoting Plaintiff ’s Original Pet. in No. 17–71693 (Tex. Dist. Ct., Oct. 24, 2017)). All told, these two lawsuits cost HCC over $20,000 in legal fees. That was on top of more than $250,000 in legal fees HCC incurred due to Mr. Wilson's earlier litigation.

At a 2018 meeting, the Board responded by adopting another public resolution, this one "censuring" Mr. Wilson. The resolution stated that Mr. Wilson's conduct was "not consistent with the best interests of the College" and "not only inappropriate, but reprehensible." App. to Pet. for Cert. 44a. The Board also imposed certain penalties. It provided that Mr. Wilson was "ineligible for election to Board officer positions for the 2018 calendar year," that he was "ineligible for reimbursement for any College-related travel," and that his future requests to "access ... funds in his Board account for community affairs" would require Board approval. Ibid. The Board further recommended that Mr. Wilson "complete additional training relating to governance and ethics." Id. , at 44a–45a.

B

Shortly after the Board adopted its second resolution, Mr. Wilson amended the pleadings in one of his pending state-court lawsuits, adding claims against HCC and the trustees under 42 U.S.C. § 1983. Among other things, Mr. Wilson asserted that the Board's censure violated the First Amendment. By way of remedy, he sought injunctive and declaratory relief as well as damages for mental anguish, punitive damages, and attorney's fees.

Years of legal twists and turns followed. HCC and the trustees removed the case to federal court. Mr. Wilson then amended his complaint to drop his colleagues from the suit, leaving HCC as the sole defendant. Eventually, HCC moved to dismiss the complaint. The District Court granted the motion, concluding that Mr. Wilson lacked standing under Article III. On appeal, a panel of the Fifth Circuit reversed, holding that Mr. Wilson had standing and that his complaint stated a viable First Amendment claim. 955 F.3d 490, 496–497 (2020).

The Fifth Circuit's merits analysis proceeded in two steps. First, the court concluded that a verbal "reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under § 1983." Id. , at 498. Next, the court reasoned that the Board's imposition of other punishments—such as limiting Mr. Wilson's eligibility for officer positions and his access to certain funds—did "not violate his First Amendment rights" because Mr. Wilson did not have an "entitlement" to those privileges. Id. , at 499, n. 55. In sum, the court held that Mr. Wilson's § 1983 action could proceed, but only as to the Board's unadorned censure resolution. HCC's request for rehearing en banc failed by an equally divided vote. 966 F.3d 341 (CA5 2020).

In time, HCC filed a petition for certiorari in this Court. It asked us to review the Fifth Circuit's judgment that Mr. Wilson may pursue a First Amendment claim based on a purely verbal censure. Last year, we agreed to take up that question. 593 U.S. ––––, 141 S.Ct. 2564, ––– L.Ed.2d –––– (2021). But as merits briefing unfolded, Mr. Wilson did not just seek to defend the Fifth Circuit's judgment; he also sought to challenge it in part. Specifically, he argued that the Fifth Circuit erred to the extent that it upheld the Board's nonverbal punishments as consistent with the First Amendment. Generally, however, when a respondent in this Court seeks to alter a lower court's judgment, he must file and we must grant a cross-petition for review. See Genesis HealthCare Corp. v. Symczyk , 569 U.S. 66, 72, 133 S.Ct. 1523, 185 L.Ed.2d 636 (2013). Mr. Wilson filed no such petition in this case. As a result, we decline to take up his challenge to the Fifth Circuit's judgment, and the only question before us remains the narrow one on which we granted certiorari: Does Mr. Wilson possess an actionable First Amendment claim arising from the Board's purely verbal censure?

II

A

The First Amendment prohibits laws "abridging the freedom of speech." One obvious implication of that rule is that the government usually may not impose prior restraints on speech. See Near v. Minnesota ex rel. Olson , 283 U.S. 697, 718–720, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). But other implications follow too. Relevant here, no one before us questions that, "[a]s a general matter," the First Amendment prohibits government officials from subjecting individuals to "retaliatory actions" after the fact for having engaged in protected speech. Nieves v. Bartlett , 587 U. S. ––––, ––––, 139 S.Ct. 1715, 1722, 204 L.Ed.2d 1 (2019) (internal quotation marks omitted); see also Hartman v. Moore , 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). Mr. Wilson argues that the Board's censure resolution represents exactly that kind of impermissible retaliatory action.

Almost immediately, however, this submission confronts a challenge. When faced with a dispute about the Constitution's meaning or application, "[l]ong settled and established practice is a consideration of great weight." The Pocket Veto Case , 279 U. S. 655, 689, 49 S.Ct. 463 (1929). Often, "a regular course of practice" can illuminate or "liquidate" our founding document's "terms & phrases." Letter from J. Madison to S. Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908); see also McCulloch v. Maryland , 4 Wheat. 316, 401, 4 L.Ed. 579 (1819) ; The Federalist No. 37, p. 229 (C. Rossiter ed. 1961) (J. Madison). That principle poses a problem for Mr. Wilson because elected bodies in this country have long exercised the power to censure their members. In fact, no one before us has cited any evidence suggesting that a purely verbal censure analogous to Mr. Wilson's has ever been widely considered offensive to the First Amendment.

As early as colonial times, the power of assemblies in this country to censure their members was "more or less assumed." M. Clarke, Parliamentary Privilege in the American Colonies 184 (1943). It seems, too, that assemblies often exercised the power to censure members for views they expressed and actions they took "both within and without the legislature." D. Bowman & J. Bowman, Article I, Section 5: Congress’ Power to Expel—An Exercise in Self-Restraint, 29 Syracuse L. Rev. 1071, 1084–1085 (1978) (footnote omitted).

The parties supply little reason to think the First Amendment was designed or commonly understood to upend this practice. To the contrary, the United States Senate issued its first censure in 1811, after a Member read aloud a letter from former President Jefferson that the body had placed under an "injunction of secrecy." 22 Annals of Cong. 65–83. The House of Representatives followed suit in 1832, censuring one of its own for "insulting ... the Speaker." 2 A. Hinds, Precedents of the House of Representatives § 1248, pp. 799–800 (1907) (Hinds). Ten years later, the House reprimanded another Member after he introduced a resolution thought to be damaging to international relations. Id ., § 1256, at 807–808.

Many later examples followed these...