“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Fifth Circuit judges James Ho, Don Willett, Kyle Duncan, and Andy Oldham tried to get the full court of appeals to reconsider a decision allowing an elected member of a public board to pursue a claim that he was improperly censured in violation of his First Amendment rights. The court declined to rehear the case in the July 2020 decision in Wilson v. Houston Community College System.
David Wilson was an elected member of the Board of Trustees of the Houston Community College System (HCC). Beginning in 2017, Wilson began to criticize, first privately and then publicly, a number of Board actions that he thought violated the Board’s bylaws and were not in the best interests of HCC. These included funding a campus in Qatar and allowing voting by videoconference. Wilson maintained a website where he discussed his concerns.
In mid-January 2018, the Board voted to publicly censure Wilson for his actions, stating that this was the “highest level of sanction available” since Wilson was an elected official and warning him to “cease and desist” his conduct. Wilson then amended a pending state court lawsuit to contend that the Board had violated his First Amendment rights and to seek damages. The Board removed the case to federal court, where a judge dismissed the case for lack of standing, claiming that Wilson could not demonstrate injury in fact to him as a matter of law. Wilson appealed.
A three-judge panel of the Fifth Circuit unanimously reversed. The court explained that the lower court had erred because in the primary decision it relied upon, a Tenth Circuit ruling where the court dismissed a similar challenge by a public community college board member, the court had in fact held that the plaintiff did have standing because he claimed that a censure had tarnished his reputation. The court went on to point out that both the Supreme Court and the Fifth Circuit had held that “allegations of retaliatory censure” of a public official that a plaintiff claims give “rise to a reputational injury is an injury in fact.” Although Wilson’s requests for declaratory and injunctive relief were now moot since he had left the Board, the court continued, his claim for damages “continues to present a live controversy” and he should have an opportunity to prove his case.
The full Fifth Circuit then determined to decide whether to rehear the case. Eight judges on the court voted in favor of vacating the panel opinion and rehearing the case, including Trump judges Ho, Willett, Duncan, and Oldham. Eight others, however, voted against rehearing, including Reagan nominee Jerry Smith, George W. Bush nominees Leslie Southwick and Catherine Haynes, and Trump nominee Kurt Engelhardt. As a result, rehearing was denied.
The four dissenting Trump judges joined a harsh dissent by Judge Edith Jones, and Ho also filed his own dissent. The dissenters wrote that the panel decision was “out of step” with the decisions of four other circuit courts, which had supposedly ruled that a legislature’s “public censure of one of its members” could not give rise to a First Amendment claim. The dissenters also argued that Fifth Circuit precedent “respects the lack of a constitutional remedy” for “intra-legislative squabbling” and that cases concerning “official reprimands” of elected Texas state judges did not apply. Ho commented that the panel ruling violated the principle that the First Amendment “guarantees freedom of speech, not freedom from speech.”
The panel decision, however, had already responded to such arguments by HCC. The panel explained that both the Supreme Court and the Fifth Circuit had recognized the importance under the First Amendment of ensuring that elected officials be “allowed freely to express themselves on matters of public concern” and that they not be punished or deterred by improper official censures. The panel went on to note that the Fifth Circuit had held that there is “no doubt” that formal reprimands for speech by elected officials, which go far beyond simple criticism, can lead to a First Amendment violation. The court specifically pointed out that the fact that some of these cases involved elected judges “matters not,” and that if anything, judges are accorded “less protection” than legislators like Wilson. After a “close review,” moreover, the court concluded that the cases from other circuits that the dissenters also relied upon were distinguishable, either because they involved claims only against individual members of a governing body like HCC or “did not involve censures.”
The panel recognized that although Wilson had raised a “plausible claim,” he would need to prove his contention that HCC’s retaliatory censure against him actually caused the damages he sought. If it had been up to Trump judges Ho, Willett, Oldham, and Duncan, however, he would not even have had that opportunity and the court would have ruled that the First Amendment does not protect against retaliatory censures of public officials for their speech.