Court and free speech minefield

The nation today has a surfeit of indignation, but wholesome exasperation — brisk impatience with foolishness — is always in short supply. Hence the exhilaration one experiences reading Judge Edith Jones’ dissent, 16 months ago, on the U.S. Court of Appeals for the 5th Circuit, concerning a case the Supreme Court will hear Tuesday. If Jones’ argument was right, David Wilson’s case should not have reached the Supreme Court and his argument should not prevail there.

Wilson, who perhaps thinks niceness is overrated, does not play nicely with the other eight members of the Houston Community College System’s board of trustees. In 2018, the board, which has a tarnished recent history, reciprocated his antagonism, censuring him for having sinned against collegiality by things he had said and done. He twice sued the board (costing it nearly $300,000 in legal fees); he said the board has violated its bylaws; he hired one private investigator to discover whether a board member lived in the appropriate district, and another to investigate the board; he produced robocalls critical of the board; and he amplified his criticisms in interviews.

Historically, legislatures have powers to reprimand members. Because courts are wary of judicial interference with legislative bodies, they enjoy wide latitude in disciplining members. The Houston board, which is elected, says its censure of Wilson was merely its spoken rejoinder to his speech criticizing it.

The U.S. House of Representatives censured a member who shouted “You lie!” during a Barack Obama address concerning health care. The New York Times’ Adam Liptak notes that in 2020, a year of imaginative vituperation, the city council of River Falls, Wisconsin, censured a member for describing someone opposed to mask-wearing as “a rancid tub of ignorant contagion.” This invective earned a censure as a subtraction from the residual dignity of public life.

If the Houston board, a government entity, had confined itself to calling Wilson a stinker and a meanie, this would merely have been government exercising its right to speak its mind. Wilson could have replied that “sticks and stones may break my bones, but words can never hurt me.” But the board accompanied the censure with tangible penalties, including denying him reimbursement for travel expenses and making him ineligible to be a board officer. These penalties could be considered unconstitutional retaliation intended to chill his future speech. Nevertheless, the Supreme Court should hesitate before striding into this minefield.

A district court rejected Wilson’s flimsy argument that the censure by itself violated his First Amendment right of free speech, as though disapproval of his speech interfered with his speaking. So, he turned to the U.S. Court of Appeals for the 5th Circuit. It got things exactly wrong.

The 5th Circuit majority said the censure alone was retaliation against constitutionally protected speech, and — non sequitur alert — therefore was unconstitutional. He had told this court that he had suffered “mental anguish.” His woe-isme whine was unbecoming, considering his tough-guy, politics-ain’t-beanbag treatment of his board colleagues.

Dissenting, Judge Jones said, in effect: Good grief, a government entity expressing its disapproval of speech by a member of the entity does not suppress the member’s speech. Jones seemed to think that both the board and its tormentor need a timeout to compose themselves, and she cautioned courts that treating the board’s dispute as a justiciable matter will draw courts into refereeing — on the basis of improvised principles — innumerable such intramural squabbles. Jones wrote:

“Political infighting of this sort should not be dignified with a false veneer of constitutional protection and has no place in the federal courts.”

A Harvard Law Review analysis of the Wilson case notes that when all local legislatures are counted, a censure of speech currently occurs approximately every two days. If the Supreme Court sides with Wilson, it might soon hear from, among many others, Rep. Marjorie Taylor Greene, R-Ga., who was stripped of her House committee memberships after numerous lunatic statements, such as her reference to “the so-called plane that crashed into the Pentagon” on 9/11, and the clear and present danger of a “global cabal of Satan-worshiping pedophiles.” Do federal courts want to formulate principles for sorting acceptable from unacceptable legislative reprimands of the exotic speech of unhinged members?