The internal disciplinary practices of legislatures have a long history rooted in the Anglo-American tradition of legislative independence. One disciplinary measure is a reprimand, typically called a “censure,” which entails passing a resolution that publicly condemns a member’s conduct. Following the 2021 Capitol riots, the Virginia Senate censured state senator Amanda Chase for referring to the rioters as “patriots who love their country,” a move she argued violated the First Amendment.1 Until recently, the state senator’s argument would have lacked support in case law, as courts had uniformly found that the First Amendment did not restrict legislatures’ authority to censure.2 However, in Wilson v. Houston Community College System,3 the Fifth Circuit created a circuit split when it held that a legislative body’s censure of a member can give rise to an actionable First Amendment claim.4 Historical analysis of the common law disciplinary authority of legislatures and the authority’s relationship with legislative immunity lends context to the dispute. While it remains unclear when a legislature’s discipline violates the First Amendment, courts finding that censures of speech are unconstitutional would disrupt centuries of practice.
Under Texas law, the Houston Community College System (HCC) is a “governmental agency.”5 HCC’s board, comprised of publicly elected trustees, has statutory authority to govern through orders and resolutions as well as to adopt rules and bylaws “as it deems advisable.”6 After trustee David Wilson disagreed with the majority’s funding decisions, he publicly criticized his fellow trustees through automated phone calls, a website, and local radio,7 accusing them of failing to represent their constituencies.8 Adding to the tension, Wilson hired private investigators to surveil HCC and a fellow trustee at her residence.9 In response, the Board censured Wilson, denouncing his recent behavior as against HCC’s interests and violative of bylaws, including one about “respect for . . . collective decision-making.”10 Wilson sued HCC under 42 U.S.C. § 1983, alleging that the censure violated his right to free speech.11
The Southern District of Texas dismissed the claim.12 Judge Hoyt relied on the Tenth Circuit’s decision in Phelan v. Laramie County Community College Board,13 which contained facts “analogous” to those at bar.14 In Phelan, a publicly elected trustee opposed majority initiatives in a manner that others found “inappropriate.”15 The board censured the trustee, declaring that her conduct violated its ethics policy about respect for majority decisions.16 The Phelan court reasoned that because the censure did not interfere with the trustee’s “opportunities to speak” or her ability to “perform[] her official duties,” it did not constitute a “penalty” and merely amounted to the majority “voic[ing its] opinion.”17 On those grounds, the Phelan court found that the censure did not infringe on First Amendment rights.18 Following Phelan, Judge Hoyt held that Wilson’s free speech rights were not injured.19
The Fifth Circuit reversed and remanded. Writing for the panel, Judge Davis20 first found that Wilson had standing since he had alleged that the censure retaliated against an exercise of free speech rights, causing him “mental anguish.”21 Next, the panel determined that the censure, as alleged, was actionable.22 The panel declared that the district court “improperly endorsed” the Tenth Circuit’s decision in Phelan by “ignoring” Fifth Circuit cases in which reprimands of “elected official’s political speech” triggered First Amendment scrutiny.23
The panel pointed to two Fifth Circuit cases in which a judicial ethics commission reprimanded elected judges for speech it feared could have impaired the public’s perception of judicial impartiality.24 The panel reasoned it “matters not” that those cases involved judges rather than legislators, because judges are still “political actors.”25 The precedent was viewed as establishing that “a reprimand against an elected official for speech addressing a matter of public concern” is actionable.26 Here, the panel found that Wilson was censured in part for his criticisms on matters of public concern, and thus his claim was actionable.27 In contrast to the Phelan court’s position that a censure does not constitute a penalty, the panel viewed a formal reprimand as punitive “by its very nature,” as it represents the culmination of a disciplinary process.28
In addition, the panel rejected HCC’s argument that the Board, as “a legislative body,” had “a right to censure” Wilson without creating liability.29 The panel acknowledged the doctrine of legislative immunity but noted it shields legislators, and Wilson sued HCC, a local government body, to which common law immunities do not apply.30
Subsequently, the Fifth Circuit denied a petition to rehear the case en banc with a divided 8–8 vote.31 Dissenting, Judge Jones32 asserted that the decision was at odds with sister circuits whose “application of true First Amendment principles put [the panel’s] to shame.”33 She argued a censure without a tangible penalty is simply an “expression”34 that cannot “compel” or “suppress” speech.35 Judge Jones also claimed that the panel erred in relying on precedent involving judges, as judges’ and legislators’ public roles are fundamentally different.36 She suggested that the decision “threatens to destabilize legislative debate” and that these political disputes would lack “manageable legal standards.”37
In Wilson, the Fifth Circuit created a circuit split when it held that a legislative body’s censure can give rise to an actionable First Amendment claim under § 1983.38 The precedent creates uncertainty about longstanding practices that are prevalent in local government and raises questions about the underlying constitutionality of incidents at higher levels of government,39 like the censure of a state senator for calling the Capitol rioters “patriots.” Historical analysis of the practice at issue in Wilson contextualizes these disputes and may help inform their proper resolution. Precedent on legislative immunity with respect to § 1983 serves as a framework to analyze legislative discipline. The analysis suggests that legislatures’ disciplinary authority may be recognized in the federal common law as a corollary to legislative immunity. The common law authority exists in federal, state, and local governments, like HCC. While it remains unclear how to determine when legislative discipline violates free speech rights, it would disturb practices predating the Founding if courts find it is unconstitutional to censure speech.
The Supreme Court’s recognition of legislative immunity in federal common law provides a framework to analyze its corollary: legislative discipline. In 1871, Congress passed a law now codified as § 1983, which, by the letter, created unfettered liability for state actors’ constitutional violations.40 However, the Court has “construed” § 1983 “in the light of common-law principles that were well settled at the time of its enactment.”41 Thus, in Tenney v. Brandhove,42 when state legislators were sued under § 1983, the Court applied legislative immunity (or privilege),43 which provides legislators absolute immunity for conduct “in the sphere of legitimate legislative activity.”44 The Court reviewed legislative immunity’s origins in Parliament, its adoption in the colonies, how it was important enough to be widely enshrined in constitutions, and its centrality to legislative independence.45 The Court declared that given “presuppositions of our political history,” legislative immunity “clear[ly]” applied.46 The Court later affirmed that local legislators, like HCC’s trustees, enjoy legislative immunity.47
Following the considerations in Tenney, legislative discipline, a corollary to immunity, may be recognized in the federal common law. By the seventeenth century, Parliament’s struggles for independence resulted in legislative privilege, which shielded Parliament from interference and liability from the King and the judiciary.48 With immunity from external interference, internal discipline grew important to operate effectively, and the traditional measures included censure, imprisonment, and expulsion.49 Modeled after Parliament, colonial legislatures inherited legislative immunity, and “[t]he power to discipline [members] was more or less assumed as a part of [legislative] privilege.”50 Punishing rule-breaking was viewed as “necessary” to make “all the other rules effective.”51 With great discretion, legislatures also punished nonlegislative conduct deemed harmful to the body’s institutional integrity.52
Legislative discipline’s near-ubiquity in constitutions indicates that it has been important and widely understood. The federal Constitution authorizes each house to “punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.”53 Rather than presenting new substantive ideas, the terms resembled state constitutions enacted before the Philadelphia Convention.54 Since then, forty-six states have enshrined disciplinary provisions with common features.55 Local government charters, too, have provided disciplinary provisions substantially similar to that of the federal Constitution.56
Despite these enumerations, legislative discipline remained common law. Near the Founding, the power was viewed as inherent to all public bodies, even “[t]he humblest assembly,” as it kept rules from becoming “nugatory.”57 Accordingly, legislatures disciplined beyond their enumerated powers with judicial endorsement.58 Today, common law discipline prevails, as state legislatures expel in the few states that never enumerated a disciplinary provision, citing an “inherent authority” to “discipline.”59
The common law authority exists in local governments, like HCC. When the Supreme Court affirmed local legislators enjoy legislative immunity in § 1983 actions, the Court consulted treatises and state supreme court decisions before and after § 1983’s enactment in 1871.60 Likewise, when discussing local legislatures’ expulsions of officeholders — a more severe measure than censure — before 1871, a state supreme court declared an “inherent” authority was “well settled,”61 and after, numerous state supreme courts affirmed the power.62 Meanwhile, the same treatises the Court cited on local legislative immunity endorse disciplinary authority.63 The view was disseminated in more treatises and leading American parliamentary guides.64
Like legislative immunity, legislatures’ disciplinary authority may be recognized in the federal common law in § 1983 actions. Matching Tenney’s analysis, legislative discipline originated in Parliament, was adopted in the colonies, remained common law but was important enough to be widely enshrined in constitutions, and effectuates legislative independence by enforcing rules and protecting institutional integrity. Moreover, the Court’s recognition of legislative immunity practically compels recognition of the corollary: if legislators are free from external interference, internal discipline is implied. This concept has been ingrained in “presuppositions of our political history” ever since “[t]he power to discipline [members] was more or less assumed as a part of [legislative] privilege” in the colonies. The link has stood the test of time: a concept that discipline occurs when privilege is breached has persisted in Parliament’s practice, drafts from the Philadelphia Convention, state constitutions, federal and state supreme court opinions, and the House of Representatives’ punishments.65
Recognition of legislative discipline and its relationship to legislative immunity contextualizes disputes like Wilson. Wilson enjoyed legislative privilege and its rare absolute immunity,66 to “protect the integrity of the legislative process by insuring independence.”67 He brought a lawsuit concerning the corollary to that freedom: the body’s discipline. In essence, Wilson sought for judicial interference with a piece of a larger structure of legislative independence — a structure that courts have treated delicately, hence, the legislative immunity doctrine. This concept may amplify prudential concerns. However, by law, legislatures cannot “ignore constitutional restraints.”68 Thus, if a court finds discipline is unconstitutional, a local government, like HCC, may be liable.
It is unclear how to evaluate when legislative discipline violates the First Amendment, given the peculiar doctrinal and prudential considerations. Courts that are reluctant to disturb legislatures’ established practices or adjudicate disputes of a political nature69 may rest their decisions on historical analysis. Under such an approach, censures for speech may be presumptively constitutional, as they have occurred since before the Founding.70 Parliament and colonial legislatures frequently punished speech.71 Then, the House of Representatives censured speech considered disrespectful or violative of rules throughout the nineteenth century and into the twentieth century,72 for instance, after a member called an act a “monstrosity.”73 The House claimed its standards were “universal[]” for “all deliberative bodies.”74 Even recently, the House reprimanded a member for proclaiming “You lie” during an address from President Obama on health care.75 Meanwhile, state legislatures have censured members for discussing abortion insensitively on public media76 and, now, for referring to the Capitol rioters as “patriots.” Accounting for local legislatures, currently, a censure of speech occurs in the nation around every two days.77 Overall, historical practice can likely support a finding that censures of speech are constitutional.78
Still, the judiciary has changed tack in recognizing free speech protections before.79 If courts do not defer to historical practice, by default, these censures may be subject to strict scrutiny,80 the standard the Wilson panel suggested would be appropriate in dicta.81 Remember, however, the First Amendment is famously committed to “uninhibited, robust, and wide-open” debate82 and protects even heinous expression, like Nazi demonstrations.83 As such, it may be unclear how a judicial test could soundly differentiate between Wilson disrespectfully discussing funding decisions and legislators, for instance, calling an act a “monstrosity,” referring to rioters as “patriots,” speaking about abortion insensitively, or proclaiming that President Obama lied about health care. Without suitable standards for the political context, applying judicial tests may severely disturb a longstanding practice of legislatures.
The circuit split created by Wilson is fascinating and challenging. Courts’ duty to uphold the Constitution is pitted against a presumption in Anglo-American government that courts do not disrupt legislatures’ well-established internal practices.84 In the absence of a Supreme Court ruling, lower courts may find it appropriate to contextualize these disputes and their implications before reaching decisions. These age-old fact patterns are unlikely to disappear. After all, politicians engage in an array of antics that legislative bodies may wish to condemn, as Wilson’s censurable behavior outside of this lawsuit exemplifies.85