Steve April 15, 2021
the-supreme-court-could-get-dragged-into-the-cancel-culture-wars

The United States has one national Constitution and one national Bill of Rights. But sometimes it feels like this country has two First Amendments. There is the one that was written down in the late eighteenth century and has almost two-and-a-half centuries of jurisprudence built around it. And then there is the folk understanding of the First Amendment in certain circles, where getting banned from Twitter is a free-speech violation beyond anything that George Orwell could have imagined.

At its weekly conference this Friday, the Supreme Court will consider a request to take up a case where these two visions of free speech collide. The case, Houston Community College System v. Wilson, is about one man’s feud against the governing board of a  local community college system and its decision to censure him three years ago. But his claims of First Amendment violations could also invite the justices to clarify what more than a few Americans misunderstand about the nature of free speech itself.

The dispute springs from a decade-long feud between David Wilson and the Board of Trustees of the Houston Community College System, or HCC, on which he served for five years, from 2013 to 2018. Wilson has been a controversial figure in local politics. He rose to prominence in Houston through his anti-gay activism against elected officials. In one instance, he organized robocalls that urged voters to reject a justice of the peace candidate because he was gay. In another, he distributed flyers that denounced then-Mayor Annise Parker because her sexual orientation would supposedly lead to human extinction. “Just because Annise Parker is a lesbian doesn’t make her qualified to be mayor of Houston,” one flyer reportedly read.

In 2013, Wilson, a conservative Republican, won election to the board of trustees in a largely Black and Democratic district. That led his critics to claim that Wilson, who is white, had misled Houston voters into thinking he is Black. Some of his campaign materials prominently featured photos of Black families and said Wilson would stand up for “our children.” The flyers also touted that he was endorsed by his cousin Ron Wilson. That was the name of a prominent Black state lawmaker at the time; it was also, coincidentally, the name of David Wilson’s actual cousin, who didn’t hold political office.

His relationship with the other trustees was combative from the start. “Wilson’s tenure was marked by immediate and constant turmoil,” the board said in its petition for the Supreme Court. “In a span of three years, he filed multiple lawsuits against the HCC, helped others to file additional lawsuits, was accused of leaking confidential information, publicly denigrated the HCC’s antidiscrimination policy, and sparked media attention for a laundry list of other controversies.” By 2017, he had even hired private investigators to probe the other members and the colleges. The HCC’s accrediting organization warned the colleges that they could face sanctions if his efforts managed to seriously disrupt the board’s governance.

Wilson did not dispute the bad blood between himself and the rest of the board. To the contrary, he argued that it was justified. In Wilson’s telling, he was simply standing up to corruption and mismanagement by the rest of the trustees. He had sharply criticized the board’s $45 million contract to build a community college in Qatar, of all places, which soon went off the rails. And he pointed to genuine instances of shady self-dealing by other trustees, including one board member who went to prison for taking more than $225,000 in bribes. His constant litigation against the board had racked up hundreds of thousands of dollars in legal fees on what the board and other local officials thought were frivolous grounds.

In 2018, the other trustees formally voted to publicly censure Wilson. The board told the Supreme Court in its brief that it acted because it was “concerned about its accreditation,” and that his “lack of respect for the Board’s collective decision-making process” had undermined the board and the HCC. Wilson responded by once again suing the board, this time for violating his First Amendment rights. A federal district court sided with the HCC and dismissed Wilson’s free-speech claims, noting that federal courts elsewhere in the country had ruled that a legislature’s decision to censure one of its own members doesn’t violate the First Amendment.

But a Fifth Circuit Court of Appeals panel disagreed and revived Wilson’s claim. “The Supreme Court has long stressed the importance of allowing elected officials to speak on matters of public concern,” Judge W. Eugene Davis wrote for the panel, quoting the Fifth Circuit’s rulings in other cases. “We have echoed this principle in our decisions, emphasizing that ‘the 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.’ As a result, and as described below, this court has held that censures of publicly elected officials can be a cognizable injury under the First Amendment.”

This is an unusual understanding of censure, to say the least. All sorts of American lawmaking bodies, from the House and Senate in Washington to hundreds of state legislature and city councils between the two coasts, have long held the power to publicly condemn a member’s egregious words or actions. The first member of Congress to be censured was Massachusetts Senator Timothy Pickering, who was condemned in 1811 for breaking an injunction of secrecy on the Senate floor. His public rebuke by the Senate suggests an early acceptance of the practice as constitutionally valid.

More importantly, the panel’s ruling also rests on a bizarre understanding of free speech. As part of the censure, the board imposed three restrictions on Wilson: He could not serve as an officer for the next year, be reimbursed for board-related travel expenses, or receive permission to spend board funds. The three-judge Fifth Circuit panel said it found no First Amendment violation for those actions because they were not guaranteed by law. They only saw a free speech issue with the public reprimand itself. In other words, the panel concluded that the HCC was free to impose a range of sanctions on Wilson for his behavior—but it could not formally criticize Wilson for it.

The HCC then asked the entire Fifth Circuit to review the panel’s ruling. The 16 judges evenly split on whether to review the case, thus leaving the panel decision intact. In a dissent from that decision joined by four colleagues, Judge Edith Jones took issue with the panel’s ruling for giving short shrift to the board’s own First Amendment rights. She warned that the panel’s ruling “exacerbates a circuit split, threatens to destabilize legislative debate, and invites federal courts to adjudicate ‘free speech’ claims for which there are no manageable legal standards.”

In Jones’s eyes, Wilson’s free speech claim would have the practical—and perhaps ironic—effect of suppressing a government body’s ability to speak, debate, and criticize one of its “gadfly” members, as she described him. Jones wrote: 

Fellow legislators may strike hard verbal blows, and all’s fair when they exercise corporate authority to censure or reprimand one of their members; such actions are not a violation of the First Amendment, but its embodiment in partisan politics. As [the Tenth Circuit] explained, hurt feelings or reputational injuries are “not enough to defeat constitutional interests in furthering ‘uninhibited, robust’ debate on public issues.”

Wilson, for his part, urged the justices to leave the Fifth Circuit’s ruling intact. He cast himself as a “political minority” who had been mistreated by a majority and said the other trustees could have criticized him in other capacities. “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,” he argued. “To do that is to establish political orthodoxy, backed by [the] threat of official sanction. Resolutions of that sort are not the lifeblood of political discourse; they are the death of it.” It’s unclear what it means to “establish political orthodoxy” or what legal weight that actually carries. The board’s censure does not obligate anyone to agree with it.

Either way, all of this is at odds with the traditional approach to free speech in American courts, where the typical solution to “bad” speech is to counter it with more “good” speech. Even though Wilson strongly disagreed with the board’s criticism, he was free to counter it by using his platform and resources to persuade voters that he had been wronged. After all, his history of political activism indicates that he isn’t shy about making his views known to the electorate. And Texas law does not allow the board to remove or disqualify its elected members, so the worst they could have done is censure or reprimand him again.

Wilson’s perspective on free speech is not as rare as it should be. Conflating criticism with censorship is already common in American politics. That misunderstanding lies at the heart of more than a few debates over “cancel culture.” (Thankfully, Wilson’s brief does not use the term.) But being criticized is not a “punishment” or a violation of one’s free speech rights. It is free speech. The First Amendment protects Americans’ rights to criticize each other for anything and everything. In extreme circumstances, a person could pursue libel claims against someone who egregiously and maliciously lied about them. But Wilson did not do that. He instead sued the board for inflicting emotional harm and sought $10,000 in damages for his “mental distress.”

During his second impeachment trial earlier this year, former President Donald Trump made the audacious claim that Congress couldn’t impeach him for inciting rioters to attack the Capitol on January 6 because his actions were protected by the First Amendment. You don’t need to be a constitutional law scholar to conclude that trying to get another branch of government injured or killed doesn’t count as free speech. But Trump wasn’t really trying to make a sophisticated analysis of Brandenburg v. Ohio or other landmark precedents. He was trying to leverage Americans’ respect for the First Amendment to immunize himself from consequences of his obvious actions.

If Wilson had lost in the lower courts, the Supreme Court could easily ignore this dispute. But since he prevailed at the Fifth Circuit, the panel’s bizarre approach to free speech will remain intact as a precedent unless the justices intervene. The justices are more likely to take up a case when the federal appeals courts are divided on how to interpret the Constitution. If they do so here, they’ll have an opportunity to make clear what should already be obvious: Being criticized doesn’t violate the First Amendment.

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