Houston Community College System v. Wilson ( 2022 )

(Slip Opinion) OCTOBER TERM, 2021 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HOUSTON COMMUNITY COLLEGE SYSTEM v.
WILSON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 20–804. Argued November 2, 2021—Decided March 24, 2022
In 2013, David Wilson was elected to the Board of Trustees of the Hou-
ston Community College System (HCC), a public entity that operates
various community colleges. Mr. Wilson often disagreed with the
Board about the best interests of HCC, and he brought multiple law-
suits challenging the Board’s actions. By 2016, these escalating disa-
greements led the Board to reprimand Mr. Wilson publicly. Mr. Wilson
continued to charge the Board—in media outlets as well as in state-
court actions—with violating its ethical rules and bylaws. At a 2018
meeting, the Board adopted another public resolution, this one “cen-
suring” Mr. Wilson and stating that Mr. Wilson’s conduct was “not con-
sistent with the best interests of the College” and “not only inappropri-
ate, but reprehensible.” App. to Pet. for Cert. 44a. The Board imposed
penalties in addition to the verbal censure, among them deeming Mr.
Wilson ineligible for Board officer positions during 2018. Mr. Wilson
amended the pleadings in one of his pending state-court lawsuits to
add claims against HCC and the trustees under 42 U. S. C. § 1983,
asserting that the Board’s censure violated the First Amendment. The
case was removed to federal court, and the District Court granted
HCC’s motion to dismiss the complaint, concluding that Mr. Wilson
lacked standing under Article III. On appeal, a panel of the Fifth Cir-
cuit reversed, holding that Mr. Wilson had standing and that his com-
plaint stated a viable First Amendment claim. 955 F. 3d 490, 496–497.
The Fifth Circuit concluded that a verbal “reprimand against an
elected official for speech addressing a matter of public concern is an
actionable First Amendment claim under § 1983.” Id., at 498. HCC
sought review in this Court of the Fifth Circuit’s judgment that Mr.
Wilson may pursue a First Amendment claim based on a purely verbal
2 HOUSTON COMMUNITY COLLEGE SYSTEM v. WILSON
Syllabus
censure.
Held: Mr. Wilson does not possess an actionable First Amendment claim
arising from the Board’s purely verbal censure. Pp. 4–13.
(a) The First Amendment prohibits laws “abridging the freedom of
speech.” When faced with a dispute about the Constitution’s meaning
or application, “[l]ong settled and established practice is a considera-
tion of great weight.” The Pocket Veto Case, 279 U. S. 655, 689. That
principle poses a problem for Mr. Wilson because elected bodies in this
country have long exercised the power to censure their members. As
early as colonial times, the power of assemblies to censure their mem-
bers was assumed. And, as many examples show, Congress has cen-
sured Members not only for objectionable speech directed at fellow
Members but also for comments to the media, public remarks disclos-
ing confidential information, and conduct or speech thought damaging
to the Nation. Censures have also proven common at the state and
local level. In fact, no one before the Court has cited any evidence sug-
gesting that a purely verbal censure analogous to Mr. Wilson’s has ever
been widely considered offensive to the First Amendment. Instead,
when it comes to disagreements of this sort, longstanding practice sug-
gests an understanding of the First Amendment that permits “[f]ree
speech on both sides and for every faction on any side.” Thomas v.
Collins, 323 U. S. 516, 547 (Jackson, J., concurring). Pp. 4–7.
(b) What history suggests, the Court’s contemporary doctrine con-
firms. A plaintiff like Mr. Wilson pursuing a First Amendment retali-
ation claim must show that the government took an “adverse action”
in response to his speech that “would not have been taken absent the
retaliatory motive.” Nieves v. Bartlett, 587 U. S. ___, ___. To distin-
guish material from immaterial adverse actions, lower courts have
taken various approaches. But any fair assessment of the materiality
of the Board’s conduct in this case must account for at least two things.
First, Mr. Wilson was an elected official. Elected representatives are
expected to shoulder a degree of criticism about their public service
from their constituents and their peers—and to continue exercising
their free speech rights when the criticism comes. Second, the only
adverse action at issue before the Court is itself a form of speech from
Mr. Wilson’s colleagues that concerns the conduct of public office. The
First Amendment surely promises an elected representative like Mr.
Wilson the right to speak freely on questions of government policy, but
it cannot be used as a weapon to silence other representatives seeking
to do the same. The censure at issue before us was a form of speech by
elected representatives concerning the public conduct of another
elected representative. Everyone involved was an equal member of the
same deliberative body. The censure did not prevent Mr. Wilson from
doing his job, it did not deny him any privilege of office, and Mr. Wilson
Cite as: 595 U. S. ____ (2022) 3
Syllabus
does not allege it was defamatory. Given the features of Mr. Wilson’s
case, the Board’s censure does not qualify as a materially adverse ac-
tion capable of deterring Mr. Wilson from exercising his own right to
speak. Pp. 7–11.
(c) Mr. Wilson’s countervailing account of the Court’s precedent and
history rests on a strained analogy between censure and exclusion
from office. While Congress possesses no power to exclude duly elected
representatives who satisfy the prerequisites for office prescribed in
Article I of the Constitution, the power to exclude and the power to
issue other, lesser forms of discipline “are not fungible” under the Con-
stitution. Powell v. McCormack, 395 U. S. 486, 512. The differences
between censure and exclusion from office undermine Mr. Wilson’s at-
tempt to rely on either Bond v. Floyd, 385 U. S 116, or the historical
example he cites involving John Wilkes, both of which involved exclu-
sion from office. Neither history nor this Court’s precedents support
finding a viable First Amendment claim here. Pp. 11–13.
955 F. 3d 490, reversed.
GORSUCH, J., delivered the opinion for a unanimous Court.
Cite as: 595 U. S. ____ (2022) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
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SUPREME COURT OF THE UNITED STATES
_________________
No. 20–804
_________________
HOUSTON COMMUNITY COLLEGE SYSTEM,
PETITIONER v. DAVID BUREN WILSON
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[March 24, 2022]
JUSTICE GORSUCH delivered the opinion of the Court.
After years of acrimony, the Board of Trustees of the Hou-
ston Community College System censured one of its mem-
bers, David Wilson. Mr. Wilson responded by filing a law-
suit challenging the Board’s action. That suit now presents
us with this question: Did the Board’s censure offend Mr.
Wilson’s First Amendment right to free speech?
I
A
The Houston Community College System (HCC) is a pub-
lic entity that operates various community colleges in
Texas. Its Board of Trustees consists of nine members, each
of whom is elected from a single-member district for a 6-
year term. Mr. Wilson was elected to the Board in 2013.
From the start, his tenure was a stormy one. Often and
strongly, he disagreed with many of his colleagues about
the direction of HCC and its best interests. Soon, too, he
brought various lawsuits challenging the Board’s actions.
By 2016, these escalating disagreements led the Board to
reprimand Mr. Wilson publicly. According to news reports,
Mr. Wilson responded by promising that the Board’s action
2 HOUSTON COMMUNITY COLLEGE SYSTEM v. WILSON
Opinion of the Court
would “ ‘never . . . stop me.’ ” Brief for Petitioner 3, and
nn. 3, 4.
Nor did it. In the ensuing months, Mr. Wilson charged
the Board in various media outlets with violating its bylaws
and ethical rules. He arranged robocalls to the constituents
of certain trustees to publicize his views. He hired a private
investigator to surveil another trustee, apparently seeking
to prove she did not reside in the district that had elected
her. He also filed two new lawsuits in state court. In the
first, Mr. Wilson alleged that the Board had violated its by-
laws by allowing a trustee to vote via videoconference.
When his colleagues excluded him from a meeting to dis-
cuss the lawsuit, Mr. Wilson filed a second suit contending
that the Board and HCC had “ ‘prohibited him from per-
forming his core functions as a Trustee.’ ” Brief in Opposi-
tion 8 (quoting Plaintiff ’s Original Pet. in No. 17–71693
(Tex. Dist. Ct., Oct. 24, 2017)). All told, these two lawsuits
cost HCC over $20,000 in legal fees. That was on top of
more than $250,000 in legal fees HCC incurred due to Mr.
Wilson’s earlier litigation.
At a 2018 meeting, the Board responded by adopting an-
other public resolution, this one “censuring” Mr. Wilson.
The resolution stated that Mr. Wilson’s conduct was “not
consistent with the best interests of the College” and “not
only inappropriate, but reprehensible.” App. to Pet. for
Cert. 44a. The Board also imposed certain penalties. It
provided that Mr. Wilson was “ineligible for election to
Board officer positions for the 2018 calendar year,” that he
was “ineligible for reimbursement for any College-related
travel,” and that his future requests to “access . . . funds in
his Board account for community affairs” would require
Board approval. Ibid. The Board further recommended
that Mr. Wilson “complete additional training relating to
governance and ethics.” Id., at 44a–45a.
Cite as: 595 U. S. ____ (2022) 3
Opinion of the Court
B
Shortly after the Board adopted its second resolution, Mr.
Wilson amended the pleadings in one of his pending state-
court lawsuits, adding claims against HCC and the trustees
under 42 U. S. C. § 1983. Among other things, Mr. Wilson
asserted that the Board’s censure violated the First Amend-
ment. By way of remedy, he sought injunctive and declar-
atory relief as well as damages for mental anguish, punitive
damages, and attorney’s fees.
Years of legal twists and turns followed. HCC and the
trustees removed the case to federal court. Mr. Wilson then
amended his complaint to drop his colleagues from the suit,
leaving HCC as the sole defendant. Eventually, HCC
moved to dismiss the complaint. The District Court granted
the motion, concluding that Mr. Wilson lacked standing un-
der Article III. On appeal, a panel of the Fifth Circuit re-
versed, holding that Mr. Wilson had standing and that his
complaint stated a viable First Amendment claim. 955 F.
3d 490, 496–497 (2020).
The Fifth Circuit’s merits analysis proceeded in two
steps. First, the court concluded that a verbal “reprimand
against an elected official for speech addressing a matter of
public concern is an actionable First Amendment claim un-
der § 1983.” Id., at 498. Next, the court reasoned that the
Board’s imposition of other punishments—such as limiting
Mr. Wilson’s eligibility for officer positions and his access to
certain funds—did “not violate his First Amendment
rights” because Mr. Wilson did not have an “entitlement” to
those privileges. Id., at 499, n. 55. In sum, the court held
that Mr. Wilson’s § 1983 action could proceed, but only as
to the Board’s unadorned censure resolution. HCC’s re-
quest for rehearing en banc failed by an equally divided
vote. 966 F. 3d 341 (CA5 2020).
In time, HCC filed a petition for certiorari in this Court.
It asked us to review the Fifth Circuit’s judgment that Mr.
Wilson may pursue a First Amendment claim based on a
4 HOUSTON COMMUNITY COLLEGE SYSTEM v. WILSON
Opinion of the Court
purely verbal censure. Last year, we agreed to take up that
question. 593 U. S. ___ (2021). But as merits briefing un-
folded, Mr. Wilson did not just seek to defend the Fifth Cir-
cuit’s judgment; he also sought to challenge it in part. Spe-
cifically, he argued that the Fifth Circuit erred to the extent
that it upheld the Board’s nonverbal punishments as con-
sistent with the First Amendment. Generally, however,
when a respondent in this Court seeks to alter a lower
court’s judgment, he must file and we must grant a cross-
petition for review. See Genesis HealthCare Corp. v.
Symczyk, 569 U. S. 66, 72 (2013). Mr. Wilson filed no such
petition in this case. As a result, we decline to take up his
challenge to the Fifth Circuit’s judgment, and the only ques-
tion before us remains the narrow one on which we granted
certiorari: Does Mr. Wilson possess an actionable First
Amendment claim arising from the Board’s purely verbal
censure?
II
A
The First Amendment prohibits laws “abridging the free-
dom of speech.” One obvious implication of that rule is that
the government usually may not impose prior restraints on
speech. See Near v. Minnesota ex rel. Olson, 283 U. S. 697,
718–720 (1931). But other implications follow too. Rele-
vant here, no one before us questions that, “[a]s a general
matter,” the First Amendment prohibits government offi-
cials from subjecting individuals to “retaliatory actions” af-
ter the fact for having engaged in protected speech. Nieves
v. Bartlett, 587 U. S. ___, ___ (2019) (slip op., at 5) (internal
quotation marks omitted); see also Hartman v. Moore, 547
U. S. 250, 256 (2006). Mr. Wilson argues that the Board’s
censure resolution represents exactly that kind of imper-
missible retaliatory action.
Almost immediately, however, this submission confronts
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Opinion of the Court
a challenge. When faced with a dispute about the Consti-
tution’s meaning or application, “[l]ong settled and estab-
lished practice is a consideration of great weight.” The
Pocket Veto Case, 279 U. S. 655, 689 (1929). Often, “a reg-
ular course of practice” can illuminate or “liquidate” our
founding document’s “terms & phrases.” Letter from J.
Madison to S. Roane (Sept. 2, 1819), in 8 Writings of James
Madison 450 (G. Hunt ed. 1908); see also McCulloch v.
Maryland, 4 Wheat. 316, 401 (1819); The Federalist No. 37,
p. 229 (C. Rossiter ed. 1961) (J. Madison). That principle
poses a problem for Mr. Wilson because elected bodies in
this country have long exercised the power to censure their
members. In fact, no one before us has cited any evidence
suggesting that a purely verbal censure analogous to Mr.
Wilson’s has ever been widely considered offensive to the
First Amendment.
As early as colonial times, the power of assemblies in this
country to censure their members was “more or less as-
sumed.” M. Clarke, Parliamentary Privilege in the Ameri-
can Colonies 184 (1943). It seems, too, that assemblies of-
ten exercised the power to censure members for views they
expressed and actions they took “both within and without
the legislature.” D. Bowman & J. Bowman, Article I, Sec-
tion 5: Congress’ Power to Expel—An Exercise in Self-Re-
straint, 29 Syracuse L. Rev. 1071, 1084–1085 (1978) (foot-
note omitted).
The parties supply little reason to think the First Amend-
ment was designed or commonly understood to upend this
practice. To the contrary, the United States Senate issued
its first censure in 1811, after a Member read aloud a letter
from former President Jefferson that the body had placed
under an “injunction of secrecy.” 22 Annals of Cong. 65–83.
The House of Representatives followed suit in 1832, censur-
ing one of its own for “insulting . . . the Speaker.” 2 A.
Hinds, Precedents of the House of Representatives § 1248,
6 HOUSTON COMMUNITY COLLEGE SYSTEM v. WILSON
Opinion of the Court
pp. 799–800 (1907) (Hinds). Ten years later, the House rep-
rimanded another Member after he introduced a resolution
thought to be damaging to international relations. Id.,
§ 1256, at 807–808.
Many later examples followed these early ones. In 1844,
the Senate issued a censure after a Member divulged to the
New York Evening Post a confidential message from Presi-
dent Tyler “outlin[ing] the terms of an annexation agree-
ment with Texas.” U. S. Senate Historical Office, A. Butler
& W. Wolff, United States Senate: Election, Expulsion, and
Censure Cases 1793–1990, p. 47 (1995). During the Civil
War, Congress censured several Members for expressing
support for the Confederacy. See Hinds § 1253, at 803–804
(censure of Rep. Alexander Long); id., § 1254, at 804–805
(censure of Rep. Benjamin G. Harris). In 1954, the Senate
“condemned” Senator Joseph McCarthy for bringing “the
Senate into dishonor,” citing his conduct and speech both
within that body and before the press. 100 Cong. Rec.
16392; see also Butler, United States Senate, at 404–407.
The House and Senate continue to exercise the censure
power today. See, e.g., Congressional Research Service, J.
Maskell, Expulsion, Censure, Reprimand, and Fine: Legis-
lative Discipline in the House of Representatives 20 (2016)
(documenting censures in the House through 2016). And,
as these examples lay bare, Congress has censured Mem-
bers not only for objectionable speech directed at fellow
Members but also for comments to the media, public re-
marks disclosing confidential information, and conduct or
speech thought damaging to the Nation.
If anything, censures along these lines have proven more
common yet at the state and local level. As early as 1833,
Justice Story observed that even “[t]he humblest assembly”
in this country historically enjoyed the power to prescribe
rules for its own proceedings. 2 Commentaries on the Con-
stitution of the United States § 835, p. 298. And throughout
our history many state and local bodies have employed that
Cite as: 595 U. S. ____ (2022) 7
Opinion of the Court
authority to prescribe censure processes for their members.
See Brief for Petitioner 23–28 (collecting examples). Today,
the model manual of the National Conference of State Leg-
islatures contemplates just such procedures too. See Ma-
son’s Manual of Legislative Procedure § 561.1 (2020). Ac-
cording to HCC and undisputed by Mr. Wilson, it seems
elected bodies in this country issued no fewer than 20 cen-
sures in August 2020 alone. See Pet. for Cert. 19–21.
If this longstanding practice does not “put at rest” the
question of the Constitution’s meaning for the dispute be-
fore us, it surely leaves a “considerable impression.”
McCulloch, 4 Wheat., at 401. On Mr. Wilson’s telling and
under the Fifth Circuit’s holding, a purely verbal censure
by an elected assembly of one of its own members may of-
fend the First Amendment. Yet we have before us no evi-
dence suggesting prior generations thought an elected rep-
resentative’s speech might be “abridg[ed]” by that kind of
countervailing speech from his colleagues. U. S. Const.,
Amdt. 1. Instead, when it comes to disagreements of this
sort, history suggests a different understanding of the First
Amendment—one permitting “[f]ree speech on both sides
and for every faction on any side.” Thomas v. Collins, 323
U. S. 516, 547 (1945) (Jackson, J., concurring).
B
What history suggests, we believe our contemporary doc-
trine confirms. Under this Court’s precedents, a plaintiff
pursuing a First Amendment retaliation claim must show,
among other things, that the government took an “adverse
action” in response to his speech that “would not have been
taken absent the retaliatory motive.” Nieves, 587 U. S., at
___ (slip op., at 5). Some adverse actions may be easy to
identify—an arrest, a prosecution, or a dismissal from gov-
ernmental employment. See id., at ___–___ (slip op., at 4–
5) (arrest); Hartman, 547 U. S., at 256 (prosecution); Perry
8 HOUSTON COMMUNITY COLLEGE SYSTEM v. WILSON
Opinion of the Court
v. Sindermann, 408 U. S. 593, 596–597 (1972) (employ-
ment). “[D]eprivations less harsh than dismissal” can
sometimes qualify too. Rutan v. Republican Party of Ill.,
497 U. S. 62, 75 (1990). At the same time, no one would
think that a mere frown from a supervisor constitutes a suf-
ficiently adverse action to give rise to an actionable First
Amendment claim.
To distinguish material from immaterial adverse actions,
lower courts have taken various approaches. Some have
asked whether the government’s challenged conduct would
“chill a person of ordinary firmness” in the plaintiff ’s posi-
tion from engaging in “future First Amendment activity.”
Nieves, 587 U. S., at ___ (slip op., at 4) (internal quotation
marks omitted). Others have inquired whether a retalia-
tory action “adversely affected the plaintiff ’s . . . protected
speech,” taking into account things like the relationship be-
tween speaker and retaliator and the nature of the govern-
ment action in question. Suarez Corp. Industries v.
McGraw, 202 F. 3d 676, 686 (CA4 2000). But whether
viewed through these lenses or any other, it seems to us
that any fair assessment of the materiality of the Board’s
conduct in this case must account for at least two things.
First, Mr. Wilson was an elected official. In this country,
we expect elected representatives to shoulder a degree of
criticism about their public service from their constituents
and their peers—and to continue exercising their free
speech rights when the criticism comes. As this Court has
put it, “[w]hatever differences may exist about interpreta-
tions of the First Amendment, there is practically universal
agreement” that it was adopted in part to “protect the free
discussion of governmental affairs.” Mills v. Alabama, 384
U. S. 214, 218 (1966). When individuals “consent to be a
candidate for a public office conferred by the election of the
people,” they necessarily “pu[t] [their] character in issue, so
far as it may respect [their] fitness and qualifications for
the office.” White v. Nicholls, 3 How. 266, 290 (1845).
Cite as: 595 U. S. ____ (2022) 9
Opinion of the Court
Second, the only adverse action at issue before us is itself
a form of speech from Mr. Wilson’s colleagues that concerns
the conduct of public office. The First Amendment surely
promises an elected representative like Mr. Wilson the
right to speak freely on questions of government policy. But
just as surely, it cannot be used as a weapon to silence other
representatives seeking to do the same. The right to “ex-
amin[e] public characters and measures” through “free
communication” may be no less than the “guardian of every
other right.” Madison’s Report on the Virginia Resolutions
(Jan. 7, 1800), in 17 Papers of James Madison 345 (D. Mat-
tern, J. Stagg, J. Cross, & S. Perdue eds. 1991). And the
role that elected officials play in that process “ ‘makes it all
the more imperative that they be allowed to freely express
themselves.’ ” Republican Party of Minn. v. White, 536 U. S.
765, 781 (2002).
Given these features of Mr. Wilson’s case, we do not see
how the Board’s censure could qualify as a materially ad-
verse action consistent with our case law. The censure at
issue before us was a form of speech by elected representa-
tives. It concerned the public conduct of another elected
representative. Everyone involved was an equal member of
the same deliberative body. As it comes to us, too, the cen-
sure did not prevent Mr. Wilson from doing his job, it did
not deny him any privilege of office, and Mr. Wilson does
not allege it was defamatory. At least in these circum-
stances, we do not see how the Board’s censure could have
materially deterred an elected official like Mr. Wilson from
exercising his own right to speak.
Mr. Wilson’s behavior and concessions seem telling. Re-
call that, after the Board’s first reprimand, Mr. Wilson did
not exactly cower silently. Indeed, before us Mr. Wilson
does not argue that the Board’s initial resolution interfered
with his free speech rights in any way. Instead, he confines
his attack to the Board’s second reprimand. And even when
10 HOUSTON COMMUNITY COLLEGE SYSTEM v. WILSON
Opinion of the Court
it comes to that resolution, he does not quibble with its con-
tents. Mr. Wilson does not suggest, for example, that the
Board’s criticism of him for “inappropriate” and “reprehen-
sible” behavior materially deterred him from speaking his
mind. Instead, he submits that the Board’s second resolu-
tion offended the First Amendment only because it was de-
nominated a disciplinary “censure.” So on Mr. Wilson’s tell-
ing, it seems everything hinges on a subtlety: A reprimand
no matter how strongly worded does not materially impair
the freedom of speech, but a disciplinary censure does. That
much we find hard to see. Doubtless, by invoking its “cen-
sure” authority in the second resolution the Board added a
measure of sting. But we cannot see how that alone
changed the equation and materially inhibited Mr. Wilson’s
ability to speak freely.
In rejecting Mr. Wilson’s claim, we do not mean to sug-
gest that verbal reprimands or censures can never give rise
to a First Amendment retaliation claim. It may be, for ex-
ample, that government officials who reprimand or censure
students, employees, or licensees may in some circum-
stances materially impair First Amendment freedoms. See
generally Ibanez v. Florida Dept. of Business and Profes-
sional Regulation, Bd. of Accountancy, 512 U. S. 136, 139
(1994) (licensing); Zauderer v. Office of Disciplinary Coun-
sel of Supreme Court of Ohio, 471 U. S. 626, 655–656 (1985)
(same); Holloman v. Harland, 370 F. 3d 1252, 1268–1269
(CA11 2004) (student); Kirby v. Elizabeth City, 388 F. 3d
440, 449 (CA4 2004) (employee). Likewise, we do not ad-
dress today questions concerning legislative censures ac-
companied by punishments, or those aimed at private indi-
viduals. Cf. Kilbourn v. Thompson, 103 U. S. 168, 189–190
(1881) (distinguishing Congress’s power to inflict certain
punishments on its own Members from its power to punish
nonmembers). Nor do we pass on the First Amendment im-
plications of censures or reprimands issued by government
bodies against government officials who do not serve as
Cite as: 595 U. S. ____ (2022) 11
Opinion of the Court
members of those bodies. See, e.g., Jenevein v. Willing, 493
F. 3d 551, 560–561 (CA5 2007); Scott v. Flowers, 910 F. 2d
201, 211–213 (CA5 1990).
History could hold different lessons for cases like these,
too. For example, following the Whiskey Rebellion, Feder-
alists supported by President Washington introduced a pro-
posal in Congress to denounce “self-created societies” they
believed had “ ‘misrepresent[ed] the conduct of the Govern-
ment.’ ” 4 Annals of Cong. 899 (1794). James Madison and
others opposed, and ultimately defeated, the effort in the
House of Representatives. In doing so Madison insisted
that, in a Republic like ours, “the censorial power is in the
people over the Government, and not in the Government
over the people.” Id., at 934; see also R. Chesney, Demo-
cratic-Republican Societies, Subversion, and the Limits of
Legitimate Political Dissent in the Early Republic, 82 N. C.
L. Rev. 1525, 1560–1566 (2004). When the government in-
teracts with private individuals as sovereign, employer, ed-
ucator, or licensor, its threat of a censure could raise First
Amendment questions. But those cases are not this one.
C
Mr. Wilson offers a countervailing account of our prece-
dent and history, but all of it rests on a strained analogy.
To start, he directs us to Bond v. Floyd, 385 U. S. 116(1966). There, a state legislature refused to seat a duly
elected representative. According to the legislature, the
representative’s comments criticizing the Vietnam War
were incompatible with the State’s required loyalty oath.
This Court held that the legislature’s action violated the
First Amendment. Id., at 135. And, Mr. Wilson reasons,
we must reach the same result here. But that much does
not follow quite as seamlessly as Mr. Wilson suggests. The
legislature’s action in Bond implicated not only the speech
of an elected official, it also implicated the franchise of his
constituents. And it involved not just counterspeech from
12 HOUSTON COMMUNITY COLLEGE SYSTEM v. WILSON
Opinion of the Court
colleagues but exclusion from office. See id., at 123–125.
Just three years after Bond, the Court stressed the sali-
ence of these differences. In Powell v. McCormack, the
Court held that Congress possesses no power to exclude
duly elected representatives who satisfy the prerequisites
for office prescribed in Article I of the Constitution. 395
U. S. 486, 550 (1969). In doing so, however, the Court took
pains to emphasize that the power to exclude and the power
to issue other, lesser forms of discipline “are not fungible”
under our Constitution. Id., at 512; see also id., at 551–553
(Douglas, J., concurring). Mr. Wilson’s attempt to analogize
his case to Bond thus conflates a distinction Powell cau-
tioned us not to confuse.
The differences between exclusion and censure also un-
dermine Mr. Wilson’s alternative argument—this one con-
cerning John Wilkes. In 1763, Wilkes “published an attack
on a recent [English] peace treaty with France, calling it the
product of bribery and condemning the Crown’s ministers
as the tools of despotism and corruption.” Powell, 395 U. S.,
at 527 (internal quotation marks omitted). Parliament re-
sponded by expelling Wilkes from office and later refusing
to seat him despite his repeated reelection. Id., at 527–528.
Only in 1782 did Parliament finally relent, voting to ex-
punge its prior resolutions and resolving that its actions
had been “subversive of the rights of the whole body of elec-
tors of this kingdom.” Id., at 528 (internal quotation marks
omitted).
According to Mr. Wilson, the Wilkes affair demonstrates
that legislative censures are at odds with the American le-
gal tradition. But, once more, this argument stretches a
historical analogy too far. The framers may well have had
the Wilkes episode in mind when they crafted Clauses in
the Constitution limiting Congress’s ability to impose its
own ad hoc qualifications for office or to expel Members.
See U. S. Const., Art. I, §§ 2–3, 5; see also Powell, 395 U. S.,
Cite as: 595 U. S. ____ (2022) 13
Opinion of the Court
at 531–539. Undoubtedly, too, the first set of these consti-
tutional limitations ultimately led the Court in Powell to
hold that the House of Representatives may not “exclude
members-elect for general misconduct not within [the Con-
stitution’s] standing qualifications.” Id., at 528. But Mr.
Wilson cites nothing in the Wilkes affair to support his
much more ambitious suggestion that the founding genera-
tion understood the First Amendment to prohibit repre-
sentative bodies from censuring members as the Board did
here. If anything, as we have seen, history counsels a very
different conclusion.
*
Our case is a narrow one. It involves a censure of one
member of an elected body by other members of the same
body. It does not involve expulsion, exclusion, or any other
form of punishment. It entails only a First Amendment re-
taliation claim, not any other claim or any other source of
law. The Board’s censure spoke to the conduct of official
business, and it was issued by individuals seeking to dis-
charge their public duties. Even the censured member con-
cedes the content of the censure would not have offended
the First Amendment if it had been packaged differently.
Neither the history placed before us nor this Court’s prece-
dents support finding a viable First Amendment claim on
these facts. Argument and “counterargument,” not litiga-
tion, are the “weapons available” for resolving this dispute.
Wood v. Georgia, 370 U. S. 375, 389 (1962). The judgment
of the Fifth Circuit is
Reversed.