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Justice Kagan Invokes Joseph McCarthy Precedent in Case About Whether Legislative Bodies Can Censure Members for Speech

The nine Supreme Court justices pose for a group picture in 2021

Seated from left: Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett pose during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021.

During oral arguments over whether the First Amendment allows a board member at a Texas community college to be censured over his speech, the Supreme Court on Tuesday questioned the U.S. Congress’s limits in using the same power.

One of the nine, Justice Elena Kagan, cited the 1954 Congressional censure of Joseph McCarthy to suggest some power to censure must be kept on the table.

“Which side of your line does Senator McCarthy’s censure fall on?” Kagan pointedly asked.

The debate arose in the case Houston Community College System v. David Buren Wilson, in which the Supreme Court has been asked to determine the First Amendment may limit the power of legislative bodies to officially censure their members. While the specific controversy before the justices involves a Texas community college board member, the justices appeared united in their wariness over the case’s potential to impact other entities (such as the U.S. Congress) that might wish to censure their members.

The case grew out of prolonged conflict between David Buren Wilson, an elected member of the board of trustees of the Houston Community College System (HCC), and the rest of the board on which Wilson sits. Wilson vocally opposed many of the board’s decisions, spoke out against HCC in local media, and even published a website detailing his grievances. What’s more, Wilson organized a robocall speaking out against HCC, sued HCC’s board, and hired a private investigator to investigate his fellow board members.

One particular decision Wilson vehemently opposed was HCC’s choice to fund the Community College of Qatar. He sued, alleging that the board failed to follow its own bylaws when voting for the expensive project.

The board responded to Wilson’s actions by passing a resolution officially censuring him for conduct that was “not only inappropriate, but reprehensible,” and for behaving in a manner “not consistent with the best interests of the College or the Board.” Wilson responded with more litigation, claiming that the censure caused him mental anguish, suing for violation of his free speech rights and demanding $20,000 in damages.

The district court sided with HCC, dismissing Wilson’s lawsuit on the grounds that he had failed to demonstrate any actual injury resulting from the censure. Wilson appealed, and a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed. Wilson next petitioned for a rehearing before the full Fifth Circuit — which was denied by the narrowest of margins. The full appellate court voted 8-8, denying a rehearing.

The justices put on a united front during Tuesday’s oral arguments, appearing extremely skeptical not only of Wilson’s argument, but even more so of the potential of their ruling to constrain Congress and other legislative bodies in future attempts to use censure as a tool to maintain order.

Justice Clarence Thomas asked attorney Richard Morris (who argued on behalf of HCC) to define limits to a legislative body’s power to censure. “What about about an expulsion? What about imprisonment?” asked the justice.

Justices Sonia Sotomayor, Amy Coney Barrett, and Kagan each picked up on the same line of questioning, prompting Morris to admit that there exist at least some limits to the power of censure.

Justice Samuel Alito posed the question that was clearly on the minds of his fellow justices: how should other legislative bodies be allowed to use censure?

“Suppose there are two factions contesting positions on a school board, and one faction narrowly wins and when they get the majority they say, ‘all of the things that were said by the other faction during the campaign were utterly despicable, and therefore, we are expelling them all from the body,'” hypothesized Alito in a question clearly applicable to congressional politics. “Would the First Amendment permit that?” asked the justice.

Chief Justice John Roberts chimed in with a hypothetical of his own, asking how the First Amendment might restrict the Board of Patent Appeals from censuring a member who refused to stand for the National Anthem at a baseball game.

Assistant to the Solicitor General Sopan Joshi argued on behalf of the federal government as an amicus in the case. During his colloquy with Joshi, Justice Alito resumed his line of questioning, indicating his hesitancy in handing down a ruling that could constrain Congress.

“If we say the First Amendment allows certain actions that have been historically taken by Congress against members of Congress,” Alito commented, “we are going down a path drawing a line perhaps about which about which sorts of actions can be taken in retaliation for speech.” “Unless there’s something special about the word ‘censure’ this is a very easy case,” he continued, explaining that the First Amendment does not prohibit people simply responding to negative comments about each other.

Attorney Michael B. Kimberly argued on behalf of David Buren Wilson, asserting that HCC’s censure and corresponding decisions not to reimburse Wilson for travel expenses went beyond a simple voicing of opinion. Kimberly said the school’s censure amounted to a “serious penalty” that risked a chilling effect on speech.

The justices were noticeably skeptical, several pressing Kimberly on his argument that censures are appropriate when issued in connection with statements made during legislative proceedings, but not for those made in other contexts.

Pressing this issue further, Kagan cited the McCarthy analogy in assessing the line between statements made during legislative proceedings and others. Kagan asked Kimberly, who answered that McCarthy’s censure differed in that it was issued in response to statements made “in the legislative sphere.”

“So everything would have been different if it were a question of Mr. McCarthy’s public speeches?” responded Kagan.

Barrett followed up on Kagan’s questioning, asking whether censure for statements outside the legislative sphere would ever be allowed, offering the example of an official who made public speeches using offensive racial slurs.

As the justices continued to question Kimberly, several remarked that they “don’t quite understand” his arguments — a signal that they weren’t eager to strip legislative entities of their power to regulate members.

Throughout the nearly two hours of oral argument, there was noticeably little mention of Wilson himself, or of the First Amendment implications of his individual censure. Rather, the majority of the Court’s attention focused on censure as a tool of legislative order, the history of its usage, and the proper role of the Court in deciding the case.

Justice Neil Gorsuch (who participated in the proceedings remotely due to a stomach virus) and Justice Stephen Breyer were noticeably quieter than they have been in past cases.

[image via Erin Schaff/POOL/AFP via Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos