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At Supreme Court, an obstreperous school board member meets a censorious board

Jose Luis Magana

With school boards all over the country finding themselves at the center of controversy, the Supreme Court heard arguments Tuesday in a case testing whether an elected community college board can censure one of its members.

David Wilson was elected as a trustee on the Houston Community College board, but he soon was at odds with other board members, blasting them on robocalls, on the radio, on his website, and filing four lawsuits against the board, which the trustees said cost the public $300,000 in legal fees. He even hired a private investigator to see if a fellow board member really lived in the district she represented. Eventually, the board voted to censure Wilson for his behavior and it limited some of his board privileges.

He sued, claiming his First Amendment rights were violated by the censure. A federal district court dismissed his case, but a panel of the Fifth Circuit Court of Appeals reinstated it, and the full court deadlocked on whether to review the panel's decision. So, on Tuesday the Supreme Court heard arguments on a question it had never considered before: whether an elected body's censure of a member can violate the First Amendment right of free speech, and if so, under what circumstances.

Representing the board of trustees, lawyer Richard Morris told the justices that the Founding Fathers clearly thought censures were constitutional because they censured members of Congress as early as 1791.

The justices pressed him on the limits of a censure. Could the punishment include fines, or imprisonment, or expulsion? Expulsion, Morris said, would be the "outer limit" for conduct that violates the board's rules.

"Elected officials these days can be their own independent misinformation machines and they can do great damage to institutions all on social media," he said, adding that censure is one of the few tools that school boards have to police their own rules of conduct.

Justice Amy Coney Barrett pressed him, asking, "Is it your position that the First Amendment is wholly inapplicable to the topic of legislative discipline?"

The answer from Morris was basically, yes, a legislative body's discipline of its members is simply "not subject to First Amendment scrutiny," he said. He was backed up by Assistant Solicitor General Sopan Joshi, who noted that Congress, from 1791 to 2019 has repeatedly censured its members for public and private speech, and fined one member $50,000 for misconduct in 2020.

But lawyer Michael Kimberly, representing board member Wilson, said the censure was punishment for Wilson's opinions, expressed outside board meetings, and that, Kimberly maintained, violated his client's right of free speech. What's more, he said, the board, by limiting Wilson's access to travel funds, had further punished his speech.

Justice Stephen Breyer interjected to observe that courts don't run legislative bodies. "Senator McCarthy was censured, destroying his political career." he noted, and "that was up to the Congress."

And as to expenses, Breyer added, legislative committees make those judgements all the time; indeed, legislative bodies often strip members of their chairmanships or other positions.

But lawyer Kimberly maintained that legislative bodies can only censure their members for speech during a legislative session.

Are you saying, asked Justice Barrett, that a member of a legislative body could censure a member for uttering racial slurs during a debate, but when that person "then walks out onto the steps and gives a press conference, and repeats those exact same racial slurs, that could never be censured?" Yes, replied Kimberly, "that's correct."

Chief Justice John Roberts had other concerns, namely the idea that under Kimberly's theory, every censured public official could bring a suit in court.

"Traditional legislature body debates would all end up in court, and then the court would would have to decide an essentially political question that's divided the members of the board," he said, adding: "And that seems an unsatisfactory result."

A decision in the case is expected later in the term.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.