The Supreme Court's latest case on free speech involves a school board Justices heard arguments in a case testing whether an elected community college board can censure one of its members.

Law

At Supreme Court, an obstreperous school board member meets a censorious board

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MARY LOUISE KELLY, HOST:

To the Supreme Court now - the Supreme Court today heard arguments in a case that looks at whether an elected community college board can censure one of its members. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: David Wilson was elected as a trustee on the Houston Community College board, but he soon was at odds with other board members, blasting them on robocalls, on the radio, on his website and filing four lawsuits against the board, which the trustees said cost the public $300,000 in legal fees. He even hired a private investigator to see if a fellow board member really lived in the district she represented.

Eventually, the board voted to censure Wilson for his behavior, and it limited some of his board privileges. He sued, claiming his First Amendment rights were violated by the censure. And today at the Supreme Court, the justices probed where to draw the line, if any, on censures. Representing the board of trustees, lawyer Richard Morris told the justices that the Founding Fathers clearly thought censures were constitutional because they censured members of Congress as early as 1791. The justices pressed him on the limits of a censure. Could the punishment include fines or imprisonment or expulsion? Expulsion, Morris said, would be the outer limit for conduct that violates the board's rules.

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

TOTENBERG: Morris said that censure is one of the few tools that school boards have to police their own rules of conduct. Justice Barrett posed this question.

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AMY CONEY BARRETT: Is it your position that the First Amendment is wholly inapplicable to the topic of legislative discipline?

TOTENBERG: The answer from Morris was basically, yes, a legislative body's discipline of its members is simply not subject to First Amendment scrutiny, he said. He was backed by Assistant Solicitor General Sopan Joshi, who noted that Congress, from 1791 to 2019, has repeatedly censured its members for private speech and fined one member $50,000 for misconduct in 2020.

But lawyer Michael Kimberly, representing board member Wilson, said the censure was punishment for Wilson's opinions expressed outside board meetings. And that, he said, violated Wilson's right of free speech. What's more, he said, the board, by limiting Wilson's access to travel funds, had further punished his speech. Justice Breyer interjected to observe that courts do not run legislative bodies.

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STEPHEN BREYER: Senator McCarthy was censured, destroying his political career. That was up to the Congress.

TOTENBERG: And as to expenses, Breyer observed, legislative committees make those judgments all the time. Indeed, they often strip members of their chairmanships or other positions. But lawyer Kimberly maintained that the legislative bodies can only censure their members for speech during a legislative session. Are you saying, asked Justice Barrett, that a member of a legislative body could censure a member for uttering racial slurs during a debate, but when that person...

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CONEY BARRETT: Then walks out onto the steps and gives a press conference and repeats those exact same racial slurs, that could never be censured?

MICHAEL KIMBERLY: That's correct. Yes, Your Honor.

TOTENBERG: Chief Justice Roberts had other concerns, namely the idea that every censured public official could bring a suit in court.

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JOHN ROBERTS: Traditional legislative body debates would all end up in court, and then the court would have to decide an essentially political question that's divided the members of the board. And that seems an unsatisfactory result.

TOTENBERG: A decision in the case is expected later in the term.

Nina Totenberg, NPR News, Washington.

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