Judge Davis acknowledged that the board of directors also imposed a number of penalties that were more concrete than a reprimand, such as disqualifying Mr Wilson from reimbursement for study-related travel. Those additional penalties, the judge wrote, did not violate his First Amendment rights.
Wilson’s lawyers told the judges that the power to censor must have limits. Elected bodies can censor their members for what they say during the legislative process, they wrote, and for behavior not protected by the First Amendment. But outside the official domain, they wrote, the First Amendment “prohibits the official punishment of a speaker by a government agency for merely voicing disagreement with a political majority.”
Those may seem like nice differences. Mr. Wilson’s letter in the case, Houston Community College System v. Wilson, No. 20-804, provided examples to illustrate how they would operate outside the legislative process.
“For example, a disapproval would be allowed for illegal marijuana use, but not for statements supporting the legalization of marijuana use,” the letter said. “Likewise, a censure would be allowed for defamation, but not for statements that merely criticize.”
The entire Fifth Circuit was at a standstill over whether or not to rehearse the case, with a vote of 8 to 8. Judge Edith H. Jones, who disagreed with the decision to decline further review, said the analysis of the panel’s First Amendment was obsolete. The board’s disapproval was itself a speech worthy of protection, she wrote, especially in a polarized era.
“Given the growing dissension in society and among government agencies, the efforts of both sides in these disputes to gain a foothold on the other, and the ready availability of mass communication weapons with which each side can ravage the other, the decision of the panel foreshadows future lawsuits,” Judge Jones wrote. “It arms every hornet in a legislative body.”
“This kind of political infighting,” she wrote, “must not be treated with dignity with a false veneer of constitutional protection and has no place in the federal courts.”