Are Censures of Politicians a Form of Free Speech or a Threat to It?

Judge Davis acknowledged that the board had also imposed some punishments more concrete than a reprimand, like making Mr. Wilson ineligible for reimbursement for college-related travel. Those additional penalties, the judge wrote, did not violate his First Amendment rights.

Mr. Wilson’s lawyers told the justices that the power to censure must have limits. Elected bodies can censure their members for what they say during the lawmaking process, they wrote, and for conduct that is not protected by the First Amendment. But outside the official realm, they wrote, the First Amendment forbids “a government body’s official punishment of a speaker for merely expressing disagreement with a political majority.”

Those may appear to be fine distinctions. Mr. Wilson’s brief in the case, Houston Community College System v. Wilson, No. 20-804, gave examples to illustrate how they would work outside the legislative process.

“A censure would be permissible for illegal marijuana use, for example, but not for statements supporting the legalization of marijuana use,” the brief said. “Likewise, a censure would be permissible for slander, but not for statements that merely criticize.”

The full Fifth Circuit deadlocked on whether to rehear the case, by an 8-to-8 vote. Dissenting from the decision to deny further review, Judge Edith H. Jones said the panel’s First Amendment analysis was backward. The board’s censure was itself speech worthy of protection, she wrote, particularly in a polarized era.

“Given the increasing discord in society and governmental bodies, the attempts of each side in these disputes to get a leg up on the other, and the ready availability of weapons of mass communication with which each side can tar the other, the panel’s decision is the harbinger of future lawsuits,” Judge Jones wrote. “It weaponizes any gadfly in a legislative body.”

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