HOUSTON COMMUNITY COLLEGE SYSTEM v. WILSON
Supreme Court Cases
595 U.S. ___ (2022)
Opinions
Majority Opinion Author
Neil Gorsuch
Concurring Participants
NOTE:鈥俉here it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HOUSTON COMMUNITY COLLEGE SYSTEM v. WILSON
certiorari to the united states court of appeals for the fifth circuit
No. 20鈥804.鈥傾rgued November 2, 2021鈥擠ecided March 24, 2022
In 2013, David Wilson was elected to the Board of Trustees of the Houston Community College System (HCC), a public entity that operates various community colleges. Mr. Wilson often disagreed with the Board about the best interests of HCC, and he brought multiple lawsuits challenging the Board鈥檚 actions. By 2016, these escalating disagreements led the Board to reprimand Mr. Wilson publicly. Mr. Wilson continued to charge the Board鈥攊n media outlets as well as in state-court actions鈥攚ith violating its ethical rules and bylaws. At a 2018 meeting, the Board adopted another public resolution, this one 鈥渃ensuring鈥 Mr. Wilson and stating that Mr. Wilson鈥檚 conduct was 鈥渘ot consistent with the best interests of the College鈥 and 鈥渘ot only inappropriate, but reprehensible.鈥 App. to Pet. for Cert. 44a. The Board imposed penalties in addition to the verbal censure, among them deeming Mr. Wilson ineligible for Board officer positions during 2018. Mr. Wilson amended the pleadings in one of his pending state-court lawsuits to add claims against HCC and the trustees under 42 U. S. C. 搂 1983, asserting that the Board鈥檚 censure violated the First Amendment. The case was removed to federal court, and the District Court granted HCC鈥檚 motion to dismiss the complaint, concluding that Mr. Wilson lacked standing under Article III. On appeal, a panel of the Fifth Circuit reversed, holding that Mr. Wilson had standing and that his complaint stated a viable First Amendment claim. 955 F.3d 490, 496鈥497. The Fifth Circuit concluded that a verbal 鈥渞eprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under 搂 1983.鈥 Id., at 498. HCC sought review in this Court of the Fifth Circuit鈥檚 judgment that Mr. Wilson may pursue a First Amendment claim based on a purely verbal censure.
Held: Mr. Wilson does not possess an actionable First Amendment claim arising from the Board鈥檚 purely verbal censure. Pp. 4鈥13.
(a) The First Amendment prohibits laws 鈥渁bridging the freedom of speech.鈥 When faced with a dispute about the Constitution鈥檚 meaning or application, 鈥淸l]ong settled and established practice is a consideration of great weight.鈥 The Pocket Veto Case, 279 U.S. 655, 689. That principle poses a problem for Mr. Wilson because elected bodies in this country have long exercised the power to censure their members. As early as colonial times, the power of assemblies to censure their members was assumed. And, as many examples show, Congress has censured Members not only for objectionable speech directed at fellow Members but also for comments to the media, public remarks disclosing confidential information, and conduct or speech thought damaging to the Nation. Censures have also proven common at the state and local level. In fact, no one before the Court has cited any evidence suggesting that a purely verbal censure analogous to Mr. Wilson鈥檚 has ever been widely considered offensive to the First Amendment. Instead, when it comes to disagreements of this sort, longstanding practice suggests an understanding of the First Amendment that permits 鈥淸f]ree speech on both sides and for every faction on any side.鈥 Thomas v. Collins, 323 U.S. 516, 547 (Jackson, J., concurring). Pp. 4鈥7.
(b) What history suggests, the Court鈥檚 contemporary doctrine confirms. A plaintiff like Mr. Wilson pursuing a First Amendment retaliation claim must show that the government took an 鈥渁dverse action鈥 in response to his speech that 鈥渨ould not have been taken absent the retaliatory motive.鈥 Nieves v. Bartlett, 587 U. S. ___, ___. To distinguish material from immaterial adverse actions, lower courts have taken various approaches. But any fair assessment of the materiality of the Board鈥檚 conduct in this case must account for at least two things. First, Mr. Wilson was an elected official. Elected representatives are expected to shoulder a degree of criticism about their public service from their constituents and their peers鈥攁nd to continue exercising their free speech rights when the criticism comes. Second, the only adverse action at issue before the Court is itself a form of speech from Mr. Wilson鈥檚 colleagues that concerns the conduct of public office. The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy, but it cannot be used as a weapon to silence other representatives seeking to do the same. The censure at issue before us was a form of speech by elected representatives concerning the public conduct of another elected representative. Everyone involved was an equal member of the same deliberative body. The censure did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office, and Mr. Wilson does not allege it was defamatory. Given the features of Mr. Wilson鈥檚 case, the Board鈥檚 censure does not qualify as a materially adverse action capable of deterring Mr. Wilson from exercising his own right to speak. Pp. 7鈥11.
(c) Mr. Wilson鈥檚 countervailing account of the Court鈥檚 precedent and history rests on a strained analogy between censure and exclusion from office. While Congress possesses no power to exclude duly elected representatives who satisfy the prerequisites for office prescribed in Article I of the Constitution, the power to exclude and the power to issue other, lesser forms of discipline 鈥渁re not fungible鈥 under the Constitution. Powell v. McCormack, 395 U.S. 486, 512. The differences between censure and exclusion from office undermine Mr. Wilson鈥檚 attempt to rely on either Bond v. Floyd, 385 U. S 116, or the historical example he cites involving John Wilkes, both of which involved exclusion from office. Neither history nor this Court鈥檚 precedents support finding a viable First Amendment claim here. Pp. 11鈥13.
955 F.3d 490, reversed.
Gorsuch, J., delivered the opinion for a unanimous Court.
NOTICE:鈥俆his opinion is subject to formal revision before publication in the preliminary print of the United States Reports.鈥僐eaders are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20鈥804
_________________
Houston Community College System, PETITIONER v. David Buren Wilson
on writ of certiorari to the united states court of appeals for the fifth circuit
[March 24, 2022]
Justice Gorsuch delivered the opinion of the Court.
After years of acrimony, the Board of Trustees of the Houston Community College System censured one of its members, David Wilson. Mr. Wilson responded by filing a lawsuit challenging the Board鈥檚 action. That suit now presents us with this question: Did the Board鈥檚 censure offend Mr. Wilson鈥檚 First Amendment right to free speech?
I
A
The Houston Community College System (HCC) is a public entity that operates various community colleges in Texas. Its Board of Trustees consists of nine members, each of whom is elected from a single-member district for a 6-year term. Mr. Wilson was elected to the Board in 2013. From the start, his tenure was a stormy one. Often and strongly, he disagreed with many of his colleagues about the direction of HCC and its best interests. Soon, too, he brought various lawsuits challenging the Board鈥檚 actions. By 2016, these escalating disagreements led the Board to reprimand Mr. Wilson publicly. According to news reports, Mr. Wilson responded by promising that the Board鈥檚 action would 鈥 鈥榥ever . . . stop me.鈥 鈥 Brief for Petitioner 3, and nn. 3, 4.
Nor did it. In the ensuing months, Mr. Wilson charged the Board in various media outlets with violating its bylaws and ethical rules. He arranged robocalls to the constituents of certain trustees to publicize his views. He hired a private investigator to surveil another trustee, apparently seeking to prove she did not reside in the district that had elected her. He also filed two new lawsuits in state court. In the first, Mr. Wilson alleged that the Board had violated its bylaws by allowing a trustee to vote via videoconference. When his colleagues excluded him from a meeting to discuss the lawsuit, Mr. Wilson filed a second suit contending that the Board and HCC had 鈥 鈥榩rohibited him from performing his core functions as a Trustee.鈥 鈥 Brief in Opposition 8 (quoting Plaintiff 鈥檚 Original Pet. in No. 17鈥71693 (Tex. Dist. Ct., Oct. 24, 2017)). All told, these two lawsuits cost HCC over $20,000 in legal fees. That was on top of more than $250,000 in legal fees HCC incurred due to Mr. Wilson鈥檚 earlier litigation.
At a 2018 meeting, the Board responded by adopting another public resolution, this one 鈥渃ensuring鈥 Mr. Wilson. The resolution stated that Mr. Wilson鈥檚 conduct was 鈥渘ot consistent with the best interests of the College鈥 and 鈥渘ot only inappropriate, but reprehensible.鈥 App. to Pet. for Cert. 44a. The Board also imposed certain penalties. It provided that Mr. Wilson was 鈥渋neligible for election to Board officer positions for the 2018 calendar year,鈥 that he was 鈥渋neligible for reimbursement for any College-related travel,鈥 and that his future requests to 鈥渁ccess . . . funds in his Board account for community affairs鈥 would require Board approval. Ibid. The Board further recommended that Mr. Wilson 鈥渃omplete additional training relating to governance and ethics.鈥 Id., at 44a鈥45a.
B
Shortly after the Board adopted its second resolution, Mr. Wilson amended the pleadings in one of his pending state-court lawsuits, adding claims against HCC and the trustees under 42 U. S. C. 搂 1983. Among other things, Mr. Wilson asserted that the Board鈥檚 censure violated the First Amendment. By way of remedy, he sought injunctive and declaratory relief as well as damages for mental anguish, punitive damages, and attorney鈥檚 fees.
Years of legal twists and turns followed. HCC and the trustees removed the case to federal court. Mr. Wilson then amended his complaint to drop his colleagues from the suit, leaving HCC as the sole defendant. Eventually, HCC moved to dismiss the complaint. The District Court granted the motion, concluding that Mr. Wilson lacked standing under Article III. On appeal, a panel of the Fifth Circuit reversed, holding that Mr. Wilson had standing and that his complaint stated a viable First Amendment claim. 955 F.3d 490, 496鈥497 (2020).
The Fifth Circuit鈥檚 merits analysis proceeded in two steps. First, the court concluded that a verbal 鈥渞eprimand against an elected official for speech addressing a matter of public concern is an actionable First Amendment claim under 搂 1983.鈥 Id., at 498. Next, the court reasoned that the Board鈥檚 imposition of other punishments鈥攕uch as limiting Mr. Wilson鈥檚 eligibility for officer positions and his access to certain funds鈥攄id 鈥渘ot violate his First Amendment rights鈥 because Mr. Wilson did not have an 鈥渆ntitlement鈥 to those privileges. Id., at 499, n. 55. In sum, the court held that Mr. Wilson鈥檚 搂 1983 action could proceed, but only as to the Board鈥檚 unadorned censure resolution. HCC鈥檚 request for rehearing en banc failed by an equally divided vote. 966 F.3d 341 (CA5 2020).
In time, HCC filed a petition for certiorari in this Court. It asked us to review the Fifth Circuit鈥檚 judgment that Mr. Wilson may pursue a First Amendment claim based on a purely verbal censure. Last year, we agreed to take up that question. 593 U. S. ___ (2021). But as merits briefing unfolded, Mr. Wilson did not just seek to defend the Fifth Circuit鈥檚 judgment; he also sought to challenge it in part. Specifically, he argued that the Fifth Circuit erred to the extent that it upheld the Board鈥檚 nonverbal punishments as consistent with the First Amendment. Generally, however, when a respondent in this Court seeks to alter a lower court鈥檚 judgment, he must file and we must grant a cross-petition for review. See Genesis HealthCare Corp. v. Symczyk, 569 U.S. 66, 72 (2013). Mr. Wilson filed no such petition in this case. As a result, we decline to take up his challenge to the Fifth Circuit鈥檚 judgment, and the only question before us remains the narrow one on which we granted certiorari: Does Mr. Wilson possess an actionable First Amendment claim arising from the Board鈥檚 purely verbal censure?
II
A
The First Amendment prohibits laws 鈥渁bridging the freedom of speech.鈥 One obvious implication of that rule is that the government usually may not impose prior restraints on speech. See Near v. Minnesota ex rel. Olson, 283 U.S. 697, 718鈥720 (1931). But other implications follow too. Relevant here, no one before us questions that, 鈥淸a]s a general matter,鈥 the First Amendment prohibits government officials from subjecting individuals to 鈥渞etaliatory actions鈥 after the fact for having engaged in protected speech. Nieves v. Bartlett, 587 U. S. ___, ___ (2019) (slip op., at 5) (internal quotation marks omitted); see also Hartman v. Moore, 547 U.S. 250, 256 (2006). Mr. Wilson argues that the Board鈥檚 censure resolution represents exactly that kind of impermissible retaliatory action.
Almost immediately, however, this submission confronts a challenge. When faced with a dispute about the Constitution鈥檚 meaning or application, 鈥淸l]ong settled and established practice is a consideration of great weight.鈥 The Pocket Veto Case, 279 U.S. 655, 689 (1929). Often, 鈥渁 regular course of practice鈥 can illuminate or 鈥渓iquidate鈥 our founding document鈥檚 鈥渢erms & phrases.鈥 Letter from J. Madison to S. Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908); see also McCulloch v. Maryland, 4 Wheat. 316, 401 (1819); The Federalist No. 37, p. 229 (C. Rossiter ed. 1961) (J. Madison). That principle poses a problem for Mr. Wilson because elected bodies in this country have long exercised the power to censure their members. In fact, no one before us has cited any evidence suggesting that a purely verbal censure analogous to Mr. Wilson鈥檚 has ever been widely considered offensive to the First Amendment.
As early as colonial times, the power of assemblies in this country to censure their members was 鈥渕ore or less assumed.鈥 M. Clarke, Parliamentary Privilege in the American Colonies 184 (1943). It seems, too, that assemblies often exercised the power to censure members for views they expressed and actions they took 鈥渂oth within and without the legislature.鈥 D. Bowman & J. Bowman, Article I, Section 5: Congress鈥 Power to Expel鈥擜n Exercise in Self-Restraint, 29 Syracuse L. Rev. 1071, 1084鈥1085 (1978) (footnote omitted).
The parties supply little reason to think the First Amendment was designed or commonly understood to upend this practice. To the contrary, the United States Senate issued its first censure in 1811, after a Member read aloud a letter from former President Jefferson that the body had placed under an 鈥渋njunction of secrecy.鈥 22 Annals of Cong. 65鈥83. The House of Representatives followed suit in 1832, censuring one of its own for 鈥渋nsulting . . . the Speaker.鈥 2 A. Hinds, Precedents of the House of Representatives 搂 1248, pp. 799鈥800 (1907) (Hinds). Ten years later, the House reprimanded another Member after he introduced a resolution thought to be damaging to international relations. Id., 搂 1256, at 807鈥808.
Many later examples followed these early ones. In 1844, the Senate issued a censure after a Member divulged to the New York Evening Post a confidential message from President Tyler 鈥渙utlin[ing] the terms of an annexation agreement with Texas.鈥 U. S. Senate Historical Office, A. Butler & W. Wolff, United States Senate: Election, Expulsion, and Censure Cases 1793鈥1990, p. 47 (1995). During the Civil War, Congress censured several Members for expressing support for the Confederacy. See Hinds 搂 1253, at 803鈥804 (censure of Rep. Alexander Long); id., 搂 1254, at 804鈥805 (censure of Rep. Benjamin G. Harris). In 1954, the Senate 鈥渃ondemned鈥 Senator Joseph McCarthy for bringing 鈥渢he Senate into dishonor,鈥 citing his conduct and speech both within that body and before the press. 100 Cong. Rec. 16392; see also Butler, United States Senate, at 404鈥407. The House and Senate continue to exercise the censure power today. See, e.g., Congressional Research Service, J. Maskell, Expulsion, Censure, Reprimand, and Fine: Legislative Discipline in the House of Representatives 20 (2016) (documenting censures in the House through 2016). And, as these examples lay bare, Congress has censured Members not only for objectionable speech directed at fellow Members but also for comments to the media, public remarks disclosing confidential information, and conduct or speech thought damaging to the Nation.
If anything, censures along these lines have proven more common yet at the state and local level. As early as 1833, Justice Story observed that even 鈥淸t]he humblest assembly鈥 in this country historically enjoyed the power to prescribe rules for its own proceedings. 2 Commentaries on the Constitution of the United States 搂 835, p. 298. And throughout our history many state and local bodies have employed that authority to prescribe censure processes for their members. See Brief for Petitioner 23鈥28 (collecting examples). Today, the model manual of the National Conference of State Legislatures contemplates just such procedures too. See Mason鈥檚 Manual of Legislative Procedure 搂 561.1 (2020). According to HCC and undisputed by Mr. Wilson, it seems elected bodies in this country issued no fewer than 20 censures in August 2020 alone. See Pet. for Cert. 19鈥21.
If this longstanding practice does not 鈥減ut at rest鈥 the question of the Constitution鈥檚 meaning for the dispute before us, it surely leaves a 鈥渃onsiderable impression.鈥 McCulloch, 4 Wheat., at 401. On Mr. Wilson鈥檚 telling and under the Fifth Circuit鈥檚 holding, a purely verbal censure by an elected assembly of one of its own members may offend the First Amendment. Yet we have before us no evidence suggesting prior generations thought an elected representative鈥檚 speech might be 鈥渁bridg[ed]鈥 by that kind of countervailing speech from his colleagues. U. S. Const., Amdt. 1. Instead, when it comes to disagreements of this sort, history suggests a different understanding of the First Amendment鈥攐ne permitting 鈥淸f]ree speech on both sides and for every faction on any side.鈥 Thomas v. Collins, 323 U.S. 516, 547 (1945) (Jackson, J., concurring).
B
What history suggests, we believe our contemporary doctrine confirms. Under this Court鈥檚 precedents, a plaintiff pursuing a First Amendment retaliation claim must show, among other things, that the government took an 鈥渁dverse action鈥 in response to his speech that 鈥渨ould not have been taken absent the retaliatory motive.鈥 Nieves, 587 U. S., at ___ (slip op., at 5). Some adverse actions may be easy to identify鈥攁n arrest, a prosecution, or a dismissal from governmental employment. See id., at ___鈥揰__ (slip op., at 4鈥5) (arrest); Hartman, 547 U. S., at 256 (prosecution); Perry v. Sindermann, 408 U.S. 593, 596鈥597 (1972) (employment). 鈥淸D]eprivations less harsh than dismissal鈥 can sometimes qualify too. Rutan v. Republican Party of Ill., 497 U.S. 62, 75 (1990). At the same time, no one would think that a mere frown from a supervisor constitutes a sufficiently adverse action to give rise to an actionable First Amendment claim.
To distinguish material from immaterial adverse actions, lower courts have taken various approaches. Some have asked whether the government鈥檚 challenged conduct would 鈥渃hill a person of ordinary firmness鈥 in the plaintiff 鈥檚 position from engaging in 鈥渇uture First Amendment activity.鈥 Nieves, 587 U. S., at ___ (slip op., at 4) (internal quotation marks omitted). Others have inquired whether a retaliatory action 鈥渁dversely affected the plaintiff 鈥檚 . . . protected speech,鈥 taking into account things like the relationship between speaker and retaliator and the nature of the government action in question. Suarez Corp. Industries v. McGraw, 202 F.3d 676, 686 (CA4 2000). But whether viewed through these lenses or any other, it seems to us that any fair assessment of the materiality of the Board鈥檚 conduct in this case must account for at least two things.
First, Mr. Wilson was an elected official. In this country, we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers鈥攁nd to continue exercising their free speech rights when the criticism comes. As this Court has put it, 鈥淸w]hatever differences may exist about interpretations of the First Amendment, there is practically universal agreement鈥 that it was adopted in part to 鈥減rotect the free discussion of governmental affairs.鈥 Mills v. Alabama, 384 U.S. 214, 218 (1966). When individuals 鈥渃onsent to be a candidate for a public office conferred by the election of the people,鈥 they necessarily 鈥減u[t] [their] character in issue, so far as it may respect [their] fitness and qualifications for the office.鈥 White v. Nicholls, 3 How. 266, 290 (1845).
Second, the only adverse action at issue before us is itself a form of speech from Mr. Wilson鈥檚 colleagues that concerns the conduct of public office. The First Amendment surely promises an elected representative like Mr. Wilson the right to speak freely on questions of government policy. But just as surely, it cannot be used as a weapon to silence other representatives seeking to do the same. The right to 鈥渆xamin[e] public characters and measures鈥 through 鈥渇ree communication鈥 may be no less than the 鈥済uardian of every other right.鈥 Madison鈥檚 Report on the Virginia Resolutions (Jan. 7, 1800), in 17 Papers of James Madison 345 (D. Mattern, J. Stagg, J. Cross, & S. Perdue eds. 1991). And the role that elected officials play in that process 鈥 鈥榤akes it all the more imperative that they be allowed to freely express themselves.鈥 鈥 Republican Party of Minn. v. White, 536 U.S. 765, 781 (2002).
Given these features of Mr. Wilson鈥檚 case, we do not see how the Board鈥檚 censure could qualify as a materially adverse action consistent with our case law. The censure at issue before us was a form of speech by elected representatives. It concerned the public conduct of another elected representative. Everyone involved was an equal member of the same deliberative body. As it comes to us, too, the censure did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office, and Mr. Wilson does not allege it was defamatory. At least in these circumstances, we do not see how the Board鈥檚 censure could have materially deterred an elected official like Mr. Wilson from exercising his own right to speak.
Mr. Wilson鈥檚 behavior and concessions seem telling. Recall that, after the Board鈥檚 first reprimand, Mr. Wilson did not exactly cower silently. Indeed, before us Mr. Wilson does not argue that the Board鈥檚 initial resolution interfered with his free speech rights in any way. Instead, he confines his attack to the Board鈥檚 second reprimand. And even when it comes to that resolution, he does not quibble with its contents. Mr. Wilson does not suggest, for example, that the Board鈥檚 criticism of him for 鈥渋nappropriate鈥 and 鈥渞eprehensible鈥 behavior materially deterred him from speaking his mind. Instead, he submits that the Board鈥檚 second resolution offended the First Amendment only because it was denominated a disciplinary 鈥渃ensure.鈥 So on Mr. Wilson鈥檚 telling, it seems everything hinges on a subtlety: A reprimand no matter how strongly worded does not materially impair the freedom of speech, but a disciplinary censure does. That much we find hard to see. Doubtless, by invoking its 鈥渃ensure鈥 authority in the second resolution the Board added a measure of sting. But we cannot see how that alone changed the equation and materially inhibited Mr. Wilson鈥檚 ability to speak freely.
In rejecting Mr. Wilson鈥檚 claim, we do not mean to suggest that verbal reprimands or censures can never give rise to a First Amendment retaliation claim. It may be, for example, that government officials who reprimand or censure students, employees, or licensees may in some circumstances materially impair First Amendment freedoms. See generally Ibanez v. Florida Dept. of Business and Professional Regulation, Bd. of Accountancy, 512 U.S. 136, 139 (1994) (licensing); Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 655鈥656 (1985) (same); Holloman v. Harland, 370 F.3d 1252, 1268鈥1269 (CA11 2004) (student); Kirby v. Elizabeth City, 388 F.3d 440, 449 (CA4 2004) (employee). Likewise, we do not address today questions concerning legislative censures accompanied by punishments, or those aimed at private individuals. Cf. Kilbourn v. Thompson, 103 U.S. 168, 189鈥190 (1881) (distinguishing Congress鈥檚 power to inflict certain punishments on its own Members from its power to punish nonmembers). Nor do we pass on the First Amendment implications of censures or reprimands issued by government bodies against government officials who do not serve as members of those bodies. See, e.g., Jenevein v. Willing, 493 F.3d 551, 560鈥561 (CA5 2007); Scott v. Flowers, 910 F.2d 201, 211鈥213 (CA5 1990).
History could hold different lessons for cases like these, too. For example, following the Whiskey Rebellion, Federalists supported by President Washington introduced a proposal in Congress to denounce 鈥渟elf-created societies鈥 they believed had 鈥 鈥榤isrepresent[ed] the conduct of the Government.鈥 鈥 4 Annals of Cong. 899 (1794). James Madison and others opposed, and ultimately defeated, the effort in the House of Representatives. In doing so Madison insisted that, in a Republic like ours, 鈥渢he censorial power is in the people over the Government, and not in the Government over the people.鈥 Id., at 934; see also R. Chesney, Democratic-Republican Societies, Subversion, and the Limits of Legitimate Political Dissent in the Early Republic, 82 N. C. L. Rev. 1525, 1560鈥1566 (2004). When the government interacts with private individuals as sovereign, employer, educator, or licensor, its threat of a censure could raise First Amendment questions. But those cases are not this one.
C
Mr. Wilson offers a countervailing account of our precedent and history, but all of it rests on a strained analogy. To start, he directs us to Bond v. Floyd, 385 U.S. 116 (1966). There, a state legislature refused to seat a duly elected representative. According to the legislature, the representative鈥檚 comments criticizing the Vietnam War were incompatible with the State鈥檚 required loyalty oath. This Court held that the legislature鈥檚 action violated the First Amendment. Id., at 135. And, Mr. Wilson reasons, we must reach the same result here. But that much does not follow quite as seamlessly as Mr. Wilson suggests. The legislature鈥檚 action in Bond implicated not only the speech of an elected official, it also implicated the franchise of his constituents. And it involved not just counterspeech from colleagues but exclusion from office. See id., at 123鈥125.
Just three years after Bond, the Court stressed the salience of these differences. In Powell v. McCormack, the Court held that Congress possesses no power to exclude duly elected representatives who satisfy the prerequisites for office prescribed in Article I of the Constitution. 395 U.S. 486, 550 (1969). In doing so, however, the Court took pains to emphasize that the power to exclude and the power to issue other, lesser forms of discipline 鈥渁re not fungible鈥 under our Constitution. Id., at 512; see also id., at 551鈥553 (Douglas, J., concurring). Mr. Wilson鈥檚 attempt to analogize his case to Bond thus conflates a distinction Powell cautioned us not to confuse.
The differences between exclusion and censure also undermine Mr. Wilson鈥檚 alternative argument鈥攖his one concerning John Wilkes. In 1763, Wilkes 鈥減ublished an attack on a recent [English] peace treaty with France, calling it the product of bribery and condemning the Crown鈥檚 ministers as the tools of despotism and corruption.鈥 Powell, 395 U. S., at 527 (internal quotation marks omitted). Parliament responded by expelling Wilkes from office and later refusing to seat him despite his repeated reelection. Id., at 527鈥528. Only in 1782 did Parliament finally relent, voting to expunge its prior resolutions and resolving that its actions had been 鈥渟ubversive of the rights of the whole body of electors of this kingdom.鈥 Id., at 528 (internal quotation marks omitted).
According to Mr. Wilson, the Wilkes affair demonstrates that legislative censures are at odds with the American legal tradition. But, once more, this argument stretches a historical analogy too far. The framers may well have had the Wilkes episode in mind when they crafted Clauses in the Constitution limiting Congress鈥檚 ability to impose its own ad hoc qualifications for office or to expel Members. See U. S. Const., Art. I, 搂搂 2鈥3, 5; see also Powell, 395 U. S., at 531鈥539. Undoubtedly, too, the first set of these constitutional limitations ultimately led the Court in Powell to hold that the House of Representatives may not 鈥渆xclude members-elect for general misconduct not within [the Constitution鈥檚] standing qualifications.鈥 Id., at 528. But Mr. Wilson cites nothing in the Wilkes affair to support his much more ambitious suggestion that the founding generation understood the First Amendment to prohibit representative bodies from censuring members as the Board did here. If anything, as we have seen, history counsels a very different conclusion.
*
Our case is a narrow one. It involves a censure of one member of an elected body by other members of the same body. It does not involve expulsion, exclusion, or any other form of punishment. It entails only a First Amendment retaliation claim, not any other claim or any other source of law. The Board鈥檚 censure spoke to the conduct of official business, and it was issued by individuals seeking to discharge their public duties. Even the censured member concedes the content of the censure would not have offended the First Amendment if it had been packaged differently. Neither the history placed before us nor this Court鈥檚 precedents support finding a viable First Amendment claim on these facts. Argument and 鈥渃ounterargument,鈥 not litigation, are the 鈥渨eapons available鈥 for resolving this dispute. Wood v. Georgia, 370 U.S. 375, 389 (1962). The judgment of the Fifth Circuit is
Reversed.