WASHINGTON. The main question in the Supreme Court dispute on Tuesday was whether elected bodies can violate the First Amendment when they condemn their members for what they said. In other words: is reprimand, which is a formal reprimand and a kind of punishment, a form of freedom of speech or a threat to it?
The answer to this question, according to several judges, was not difficult.
“If there is nothing special about the word ‘censure’, and perhaps there is, this is a very simple case,” said Judge Samuel A. Alito Jr. saying something derogatory about the first person. Nobody there violates the right to freedom of speech. “
The case was brought up by David Wilson, a former elected trustee of the Houston community college system and an avid critic of its work. In addition to expressing his concerns in interviews and on the website, Mr. Wilson sued the system’s board, arranged robotic calls, and hired private detectives to find out if another trustee had lied about where she lived.
He was, as the judge of the Federal Court of Appeal wrote in his dissent, “a blind legislator.”
Mr. Wilson said there are many criticisms of the college system. In a summary of the Supreme Court, his lawyers said the board was being investigated for “rampant political bribery.” In 2018, a former trustee was convicted of accepting bribes from people seeking college contracts.
That same year, Mr. Wilson’s associates convicted him. “The Board believes that Mr. Wilson’s behavior was not only inappropriate but also reprehensible, and such behavior requires disciplinary action,” the resolution says.
Mr. Wilson sued, claiming the censure violated the First Amendment.
A unanimous panel of three judges from the US Court of Appeals for the Fifth Circuit in New Orleans allowed the case, ruling last year that punishing an elected official for his speech could be unconstitutional.
“The Supreme Court has long emphasized the importance of giving elected officials the opportunity to speak out on matters of public interest,” Judge W. Eugene Davis wrote to the Jury. “A reprimand to an elected official for speaking out on a public concern is the subject of a First Amendment lawsuit.”
During Tuesday’s dispute, Michael B. Kimberly, Mr. Wilson’s lawyer, made a distinction that seemed to upset some judges. He said, for example, that elected bodies can punish their members for what they say in the legislative process, but cannot formally reprimand them for speaking in other conditions.
Judge Amy Coney Barrett seemed to find this distinction surprising. “Let’s pretend that a party member makes a really offensive speech full of racial slurs that he made in the hall, say, during a debate about some civil rights laws,” she said. According to her, according to the theory of Mr. Kimberly, this speech could be the subject of a censure resolution.
But, Judge Barrett added, if the same member “goes up the stairs, gives a press conference and repeats the same racial slurs, will it never be censured?”
“That’s right,” said Mr. Kimberly.
Other judges expressed concern about the decision on clashes between politicians.
Judge Clarence Thomas, for example, appeared to fear that the courts would be “involved in gross political issues.” Judge Stephen J. Breuer echoed this view, stating that “if we start to really control this, we will significantly change the structure of government.”
Understand the landmark tenure of the Supreme Court
Judge Brett M. Cavanaugh said the court should consider a narrow decision. “Should we do this in this case?” he asked. “I thought the problem, all we needed to solve was a simple censure that doesn’t trigger a retaliation claim.”
Sopan Joshi, a federal government lawyer who advocates for the system’s governance, said there are many historical examples showing that “a censure resolution passed by an elected body against one of its members does not restrict that member’s freedom of speech.”
Richard A. Morris, Systems Council attorney for Houston Community College System v. Wilson, no. 20-804, said the right to judge is important in the current political climate.
“Elected officials these days can be their own independent disinformation machines,” he said, “and they can do a lot of damage to institutions, all on social media.”