Houston Cmty. Coll. Sys. v. Wilson

A plaintiff pursuing a claim for First Amendment retaliation must show that the government took an adverse action in response to speech it would not have taken absent a retaliatory motive.

Petitioner is a public college, which censured a member of its board of trustees for public antics which threatened Petitioner’s accreditation by undermining the board’s “collective decision-making process.” In response, the trustee alleged Petitioner caused “mental anguish” by violating his First Amendment Rights and right to Equal Protection. The district court dismissed the case, citing the Tenth Circuit’s ruling in Phelan v. Laramie County Community College Board of Trustees, 235 F.3d 1243 (10th Cir. 2000), determining that a censure is a statement of disapproval which does not cause actual injury. The Fifth Circuit reversed the district court’s decision. Censure does not necessarily violate the first amendment and has been used by many elected bodies such as Congress. A plaintiff pursuing a claim for First Amendment retaliation must show that the government took an adverse action in response to speech it would not have taken absent a retaliatory motive. The censure in question was not a punishment because it did not prevent the Plaintiff from exercising his duties nor did it remove him from his position. The First Amendment does not prevent a representative body from censuring a member because the censure itself is a form of speech from the public body when there are no punishing effects. REVERSED.