Supreme Court Hears Free Speech Case on Politicians Censure – The New York Times

WASHINGTON The basic question at a Supreme Court argument on Tuesday was whether elected bodies can violate the First Amendment when they censure their members for something they said. Put another way: Are censures, which are formal reprimands and a kind of punishment, a form of free speech or a threat to it?

The answer to that question, several justices said, did not seem difficult.

Unless theres something special about the word censure, and maybe there is, this is a very easy case, said Justice Samuel A. Alito Jr. One person says something derogatory about another person, and then the other person responds by saying something derogatory about the first person. Nobodys free speech rights are violated there.

The case was brought by David Wilson, a former elected trustee of the Houston Community College System and an energetic critic of its work. In addition to airing his concerns in interviews and on a website, Mr. Wilson sued the systems board, orchestrated robocalls and hired private investigators to look into whether another trustee had lied about where she lived.

He was, a federal appeals court judge wrote in a dissent, a gadfly legislator.

Mr. Wilson said there was plenty to criticize about the college system. In a Supreme Court brief, his lawyers said the board had been investigated for rampant political graft. In 2018, a former trustee was convicted of accepting bribes from people seeking contracts with the college.

That same year, Mr. Wilsons fellow board members censured him. The board finds that Mr. Wilsons conduct was not only inappropriate, but reprehensible, and such conduct warrants disciplinary action, the resolution said.

Mr. Wilson sued, saying the censure had violated the First Amendment.

A unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, allowed the case to proceed, ruling last year that punishing an elected official for his speech can run afoul of the Constitution.

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. A reprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim.

At Tuesdays argument, Michael B. Kimberly, a lawyer for Mr. Wilson, drew distinctions that appeared to frustrate some of the justices. He said, for instance, that elected bodies can punish their members for what they say during the lawmaking process but cannot issue formal reprimands for speech in other settings.

Justice Amy Coney Barrett seemed to find that distinction surprising. Lets imagine that a member engages in really offensive speech full of racial slurs that he said on the floor, lets say, in the debate about some civil rights legislation, she said. Under Mr. Kimberlys theory, she said, that speech could be the subject of a censure resolution.

But, Justice Barrett added, if the same member walks out onto the steps and gives a press conference and repeats those exact same racial slurs, that is not subject to censure ever?

Thats correct, Mr. Kimberly said.

Other justices expressed concerns about ruling on clashes between politicians.

Justice Clarence Thomas, for instance, appeared wary of having courts become involved in the rough and tumble of politics. Justice Stephen G. Breyer echoed that point, saying that if we get into the business of starting to really oversee this, then weve changed the government structure significantly.

The Mississippi abortion case. The court is poised to use achallenge to a Mississippi lawthat bars most abortions after 15 weeks to undermine and perhaps overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion.

A major decision on guns. The justices will consider the constitutionality of a longstanding New York lawthat imposes strict limits on carrying guns in public. The court has not issued a major Second Amendment ruling in more than a decade.

A drop in public support. Chief JusticeRoberts now leads a court increasingly associated with partisanship. Recent pollsshow the court is suffering a distinct drop in public support following a spate of unusual late-night summer rulingsin politically charged cases.

Justice Brett M. Kavanaugh said the court should consider a narrow ruling. Do we have to get into any of this in this case? he asked. I thought the issue, all we had to decide, was a mere censure does not trigger a retaliation claim.

Sopan Joshi, a lawyer for the federal government arguing in support of the systems board, said there were ample historical examples to establish that a censure resolution adopted by an elected body against one of its members does not abridge that members freedom of speech.

Richard A. Morris, a lawyer for the systems board in the case, Houston Community College System v. Wilson, No. 20-804, said the power to censure was essential in the current political climate.

Elected officials these days can be their own independent misinformation machines, he said, and they can do great damage to institutions, all on social media.

The rest is here:
Supreme Court Hears Free Speech Case on Politicians Censure - The New York Times