throbber
No. 20-804
`
`IN THE
`Supreme Court of the United States
`————
`HOUSTON COMMUNITY COLLEGE SYSTEM,
`Petitioner,
`
`v.
`DAVID BUREN WILSON,
`Respondent.
`
`————
`On Writ of Certiorari to the
`United States Court of Appeals
`for the Fifth Circuit
`————
`BRIEF AMICUS CURIAE OF
`AMERICAN JEWISH COMMITTEE
`IN SUPPORT OF PETITIONER
`————
`
`MARC D. STERN
`AMERICAN JEWISH COMMITTEE
`165 East 56th Street
`New York, New York 10022
`(212) 891-1480
`sternm@ajc.org
`
`GREGORY E. OSTFELD
`Counsel of Record
`HOWARD JERUCHIMOWITZ
`BRIAN D. STRAW
`GREENBERG TRAURIG, LLP
`77 W. Wacker Dr.
`Suite 3100
`Chicago, Illinois 60601
`(312) 456-8400
`osteldg@gtlaw.com
`jeruchimowitzh@gtlaw.com
`strawb@gtlaw.com
`Counsel for Amicus Curiae
`
`July 21, 2021
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
`
`

`

`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES ................................
`INTEREST OF AMICUS ....................................
`SUMMARY OF ARGUMENT .............................
`ARGUMENT ........................................................
`I. THERE IS NO CONSTITUTIONAL
`PROTECTION FROM CRITICISM BY A
`GOVERNMENT ENTITY AND THE
`RECOGNITION OF SUCH A PROTEC-
`TION DIMINISHES FIRST AMEND-
`MENT FREEDOMS. .................................
`A. The Power of Government to State Its
`Own Views and to Disagree with Pri-
`vate Actors Is a Cornerstone Compo-
`nent of Free Expression. .....................
`B. The Fifth Circuit’s Holding Undercuts
`the Government’s Power to Censure
`and Upends the Balance of First
`Amendment Protections
`to Chill
`Government Speech. ............................
`1. Allowing a Private Constitutional
`Claim in Response to Censure is
`Contrary to the Long History of
`the Legislative Power to Censure. .
`2. The Fifth Circuit’s Decision Rele-
`gates Government Speech to Infe-
`rior Status and Chills the Expres-
`sion of Government Viewpoints. ....
`
`Page
`
`iii
`1
`2
`4
`
`4
`
`4
`
`6
`
`7
`
`9
`
`(i)
`
`

`

`ii
`TABLE OF CONTENTS—Continued
`
`
`
`Page
`
`C. The Direct and Indirect Consequences
`of Silencing Government Speech
`Further Support a Rule Promoting
`Robust Government Discourse. ..........
`II. THE FIFTH CIRCUIT’S DECISION
`UNDERMINES THE GOVERNMENT’S
`ABILITY TO ACT BY IMPROPERLY
`ERODING THE LINE BETWEEN CEN-
`SURE AND CENSORSHIP ......................
`A. Dr. Fauci’s Public Comments Promot-
`ing Public Health Could Support a
`Claim Under
`the Fifth Circuit
`Standard ..............................................
`B. The Censure of Senator Joseph
`McCarthy Could Support a Claim
`Against Witnesses and Counsel
`Under the Fifth Circuit Standard .......
`C. Even Pro-Democracy Messaging Pub-
`lished by the U.S. Government Could
`Create a Risk of Litigation ..................
`CONCLUSION ....................................................
`
`
`
`12
`
`16
`
`19
`
`21
`
`25
`28
`
`
`
`

`

`iii
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`8
`
`11
`
`5
`
`5
`
`8
`
`Abrams v. United States,
`250 U.S. 616 (1919) ................................... 2, 12
`Blair v. Bethel Sch. Dist.,
`608 F.3d 540 (9th Cir. 2010) .....................
`Block v. Meese,
`793 F.2d 1303 (D.C. Cir. 1986) .................
`Board of Regents of Univ. of Wis.
`System v. Southworth,
`529 U.S. 217 (2000) ................................... 5, 16
`Columbia Broadcasting System, Inc. v.
`Democratic National Committee,
`412 U.S. 94 (1973) .....................................
`Johanns v. Livestock Marketing Assn.,
`544 U.S. 550, 125 S. Ct. 2055,
`161 L. Ed. 2d 896 (2005) ....................... 5, 10, 11
`Keller v. State Bar of Cal.,
`496 U.S. 1 (1990) ....................................... 9-10
`Meese v. Keene,
`481 U.S. 465 (1987) ...................................
`Mistretta v. United States,
`488 U.S. 361 (1989) ...................................
`Nat’l Endowment for the Arts v. Finley,
`524 U.S. 569 (1998) ............................... 4, 16, 20
`New York Times v. Sullivan,
`376 U.S. 254 (1964) ...................................
`Phelan v. Laramie Cty. Cmty. Coll.
`Bd. of Trustees,
`235 F.3d 1243 (10th Cir. 2000) ............... 5, 8, 10
`
`10
`
`
`
`

`

`iv
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`7
`
`5
`
`11
`
`8
`
`Pleasant Grove City v. Summum,
`555 U.S. 460 (2008) ..................................passim
`Powell v. McCormick,
`395 U.S. 486 (1969) ...................................
`Rosenberger v. Rector and Visitors
`of Univ. of Va.,
`515 U.S. 819 (1995) ...................................
`Rust v. Sullivan,
`500 U.S. 173 (1991) ................................... 5, 11
`United States v. Alvarez,
`567 U.S. 709 (2012) ................................... 2, 12
`Walker v. Tex. Div., Sons of
`Confederate Veterans,
`576 U.S. 200 (2015) ...................................
`Werkheiser v. Pocono Twp.,
`780 F.3d 172 (3d Cir. 2015) ......................
`Whitener v. McWatters, 24
`112 F.3d 740 (4th Cir. 1997) ..................... 7, 24
`Whitney v. California,
`274 U.S. 357 (1927) ................................... 2, 12
`Wilson v. Houston Cmty. College Sys.,
`955 F.3d 490 (5th Cir. 2020) ....................passim
`Wilson v. Houston Cmty. College Sys.,
`966 F.3d 341 (5th Cir. 2020) ..................... 10, 11
`Zilich v. Longo,
`34 F.3d 359 (6th Cir. 1994) .......................
`
`
`
`
`
`8
`
`

`

`v
`TABLE OF AUTHORITIES—Continued
`
`CONSTITUTION
`
`Page(s)
`
`7
`U.S. Const. art. I, § 5, cl. 2 ...........................
`23
`U.S. Const. art. I, § 6, cl. 1 ...........................
`U.S. Const. amend. I ...................................passim
`
`STATUTES
`
`42 U.S.C. § 1983 ..........................................passim
`
`FOREIGN STATUTES
`
`Gayssot Act of 1990, Law No. 90-615 of
`July 13, 1990, J.O., July 14, 1990,
`p. 8333 (Fra.) .............................................
`Denial of Holocaust (Prohibition) Law,
`5746-1986, § 2 (Isr.) .................................. 15-16
`Dz.U. 1998 nr 155 poz. 1016 (Pol.) ..............
`16
`Codigo Penal Português, Art. 240
`sec. 2 (Por.) ................................................
`
`15
`
`16
`
`OTHER AUTHORITIES
`
`AJC, English Draft of Our Future – Free-
`men or Slaves?, available at http://www.
`ajcarchives.org/AJC_DATA/Files/RS-
`12.PDF (last accessed July 14, 2021) ....... 25, 27
`AJC, Nuestro Futuro-Hombres Libres,
`O’Escalvos?, available at http://www.
`ajcarchives.org/AJC_DATA/Files/RS-11.
`CV01.pdf (last accessed July 14, 2021) ...passim
`
`
`
`
`
`

`

`vi
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`
`AJC, The State of Antisemitism in America
`2020 (Oct. 26, 2020), available at https://
`www.ajc.org/sites/default/files/pdf/2020-
`11/The_State_of_Antisemitism_in_Amer
`ica_2020.pdf (last accessed July 12,
`2021) .......................................................... 14-15
`Anthony Leviero, Final Vote Condemns
`M’Carthy, 67-22, For Abusing Senate and
`Committee; Zwicker Count Eliminated in
`Debate, N.Y. Times, Dec. 2, 1954, avail-
`able at https://archive.nytimes.com/www.
`nytimes.com/learning/general/onthisday/
`big/1202.html ...........................................passim
`Brian Stelter, Dr. Anthony Fauci says some
`Fox News coverage of the pandemic is
`‘outlandish’, CNN Business (Sept. 29,
`2020), available at https://www.cnn.com/
`2020/09/29/media/anthony-fauci-fox-news-
`media/index.html (last accessed July 13,
`2021) ..........................................................
`Cory Stieg, Dr. Fauci hasn’t taken a day off
`in 14 months — ‘I don’t have any time to
`worry about how tired I am’, CNBC (Apr.
`4, 2021), available at https://www.cnbc.
`com/2021/04/22/dr-fauci-hasnt-taken-a-
`day-off-in-14-months-fighting-covid-pan
`demic.html (last accessed July 13, 2021) ...
`
`19
`
`19
`
`
`
`
`
`
`
`
`
`

`

`vii
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`25
`
`14
`
`Danton Walker, Broadway: Manhattan
`Memoranda (May 11, 1943), available at
`http://www.ajcarchives.org/AJC_DATA/
`Files/RS-13.PDF (last accessed July 14,
`2021) ..........................................................
`Executive Order 13899, Combating Anti-
`Semitism, 84 Fed. Reg. 68779 (Dec. 11,
`2019) ..........................................................
`IHRA, Handbook for the practical use of the
`IHRA Working Definition of Semitism
`(Nov. 2020), available at https://op.euro
`pa.eu/en/publication-detail/-/publication/
`d3006107-519b-11eb-b59f-01aa75ed71a
`1/language-en (last accessed July 18,
`2021) ..........................................................
`IHRA, Working Definition of Antisemitism
`(May 26, 2016), available at https://www.
`holocaustremembrance.com/resources/w
`orking-definitions-charters/working-defi
`nition-antisemitism (last accessed July
`12, 2021) ...................................................passim
`2 Journal of the House of Lords, 1578-1614
`(1830) .........................................................
`Mark Joyella, Fauci Responds To Tucker
`Carlson On Vaccines: ‘That’s Just A Typi-
`cal Crazy Conspiracy Theory’, Forbes
`(Apr. 14, 2021), available at https://www.
`forbes.com/sites/markjoyella/2021/04/14/
`fauci-responds-to-tucker-carlson-on-vacc
`ines-thats-just-a-typical-crazy-conspiracy-
`theory/ (last accessed July 13, 2021) ........ 19-20
`
`
`14
`
`7
`
`

`

`
`
`
`
`viii
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`
`25
`
`20
`
`Richard C. Rothschild, My First Fifty Years
`(undated), available at http://www.ajc
`archives.org/AJC_DATA/Files/RS12A.P
`DF (last accessed July 14, 2021) ..............
`Sherly Gay Stolberg and Davey Alba,
`Surgeon General Assails Tech Companies
`Over Misinformation on Covid-19, New
`York Times (July 15, 2021), available at
`https://www.nytimes.com/2021/07/15/us/
`politics/surgeon-general-vaccine-misin
`formation.html (last accessed July 18,
`2021) ..........................................................
`U.S. Dept. of State, Fact Sheet, Special
`Envoy to Monitor and Combat Anti-
`Semitism (June 8, 2010), available at
`https://2009-2017.state.gov/j/drl/rls/fs/20
`10/122352.htm (last accessed July 13,
`2021) .......................................................... 13-14
`U.S. House of Representatives, List of Indi-
`viduals Expelled, Censured, or Repri-
`manded in the U.S. House of Representa-
`tives, History, Arts, & Archives, available
`http://history.house.gov/Institution/
`at
`Discipline/expulsion-censure-reprimand/
`(last accessed July 13, 2021) ....................
`U.S. Senate, About Censure, Powers &
`Procedures, available at https://www.sen
`ate.gov/about/powers-procedures/censure.
`htm (last accessed July 13, 2021) .............
`
`8
`
`8
`
`
`
`

`

`ix
`TABLE OF AUTHORITIES—Continued
`
`Page(s)
`
`U.S. Senate, “Have You No Sense of
`Decency?”, available at https://www.sen
`ate.gov/about/powers-procedures/investi
`gations/mccarthy-hearings/have-you-no-
`sense-of-decency.htm (last accessed July
`18, 2021) ....................................................
`U.S. Senate, The Censure Case of Joseph
`McCarthy of Wisconsin (1954), available
`at https://www.senate.gov/artandhistory/
`history/common/censure_cases/133Josep
`h_McCarthy.htm (last accessed July 13,
`2021) .................................................... 22, 23, 24
`
`22
`
`
`
`
`
`
`
`

`

`INTEREST OF AMICUS1
`
`The American Jewish Committee (“AJC”) is a national
`organization with more than 125,000 members and
`supporters and 22 regional offices nationwide. It was
`founded in 1906 to protect the civil and religious rights
`of American Jews. Its mission is to enhance the well-
`being of Israel and the Jewish people worldwide, and
`to advance human rights and democratic values in the
`United States and around the world.
`AJC frequently speaks out on issues of public con-
`cern, including both the constitutional protection of
`free expression under the First Amendment and the
`need for governmental officials and entities to name
`and call out antisemitism and other bigoted behaviors.
`Non-coercive government speech contributes to the
`public discourse and plays an important role in recog-
`nizing and counteracting prejudice, bigotry, and hate
`speech in all its myriad forms. Free expression,
`whether public or private, should not be stymied
`merely because it creates a clash of ideas between a
`private actor and a government actor.
`AJC supports both the right of private citizens to
`express themselves and the concomitant authority
`(even duty) of governmental entities to freely express
`positions contrary to those held by private citizens.
`Private actors must remain free to speak without fear
`of government retribution. And government actors
`must equally retain the ability to disagree without
`
`
`1 No counsel for a party authored this brief in whole or in part,
`and no party or counsel for a party made a monetary contribution
`intended to fund its preparation or submission. No person other
`than amicus and its counsel made a monetary contribution to the
`preparation or submission of this brief.
`
`

`

`2
`fear that the expression of such disagreement may
`trigger liability for alleged civil rights violations.
`Consistent with its mission and these values, AJC
`believes that the decision below of the Fifth Circuit
`puts at risk the authority of government actors to
`express a viewpoint and, where necessary, to censure
`words and conduct with which they disagree. AJC
`believes the only way to strike an appropriate balance
`is to ensure that governmental entities such as
`the Houston Community College (“HCC”) system are
`allowed to speak—including through the use of cen-
`sure—without coercing or silencing the voices they
`censure. The decision below upsets this balance by
`inviting civil rights claims in reaction to an otherwise
`non-coercive censure that amounts to nothing more
`than an act of government expression.
`
`SUMMARY OF ARGUMENT
`
`One of the guiding principles of First Amendment
`law is that the solution to “falsehood and fallacies” is
`“more speech, not enforced silence.” United States v.
`Alvarez, 567 U.S. 709, 727-28 (2012) (quoting Whitney
`v. California, 274 U.S. 357, 377 (1927) (Brandeis, J.,
`concurring); Abrams v. United States, 250 U.S. 616,
`630 (1919) (Holmes, J., dissenting)). The Fifth Cir-
`cuit’s decision below, however, lends itself to the
`conclusion that HCC’s only available recourse to
`Wilson’s speech, with which it vehemently disagreed,
`was silence—enforced by the threat of civil rights
`litigation.
`The Fifth Circuit’s holding that a mere reprimand
`can give rise to “an actionable First Amendment claim
`under § 1983,” Wilson v. Houston Cmty. College Sys.,
`955 F.3d 490, 498 (5th Cir. 2020), upsets the balance
`of First Amendment protections that allows the
`
`

`

`3
`government to speak and promote its own ideas, and
`even to criticize others’ viewpoints, so long as it
`does not coerce others’ free expression. The First
`Amendment balance this Court has carefully enforced
`requires that government actors and entities must be
`able to express their own thoughts and ideas with
`the same force, vigor, and conviction as any private
`speaker.
`The Fifth Circuit’s holding—allowing a civil rights
`action as a result of a censure—threatens the ability
`of government entities to express their own views
`because the offended subject of any such disagreement
`may file suit challenging the government’s speech as a
`civil rights violation. This holding will have the
`inevitable consequence of chilling government speech.
`This brief proceeds in two parts. First, it examines
`how the Fifth Circuit’s decision lacks grounding in
`this Court’s precedent, as well as the impact of this
`decision on amicus curiae’s vital work in combating
`antisemitism, including its support of the Interna-
`tional Holocaust Remembrance Alliance’s (“IHRA”)
`Working Definition of Antisemitism and advocacy of
`government speech to counteract antisemitism in
`the public square. Second, it examines how the Fifth
`Circuit’s rationale could have been applied in histori-
`cal circumstances to the detriment of valuable public
`discourse and the free exchange of ideas.
`Ultimately, the far-reaching consequence of the
`Fifth Circuit’s decision in allowing constitutional civil
`rights claims to proceed under § 1983 for pure
`expressions of government speech, unaccompanied by
`coercion or sanction, is starkly at odds with the
`government’s ability to function effectively. Indeed,
`“[i]t is the very business of government to favor and
`disfavor points of view on (in modern times, at least)
`
`

`

`4
`innumerable subjects.” Nat’l Endowment for the Arts
`v. Finley, 524 U.S. 569, 598 (1998) (Scalia, J., concur-
`ring in judgment). When the function of government
`requires public expression, a private speaker’s recourse
`where they object to the government’s message is in
`the court of public discourse, not in courts of law.
`
`ARGUMENT
`
`I. THERE IS NO CONSTITUTIONAL PRO-
`TECTION FROM CRITICISM BY A GOV-
`ERNMENT ENTITY AND THE RECOGNI-
`TION OF SUCH A PROTECTION DIMIN-
`ISHES FIRST AMENDMENT FREEDOMS.
`
`The Fifth Circuit’s holding that a mere “reprimand
`against an elected official for speech addressing a
`matter of public concern” can give rise to “an actiona-
`ble First Amendment claim under § 1983,” Wilson, 955
`F.3d at 498, undercuts the government’s historical
`power to censure and upsets the balance of First
`Amendment protections that allows the government to
`speak and promote its own ideas, and even to criticize
`others’ viewpoints, so long as it does not coerce others’
`free expression. Denying political bodies the power to
`censure one of their own without fear of reprisal via
`a First Amendment claim under § 1983 unavoidably
`chills the important role of government expression in
`speaking out on issues of public importance.
`
`A. The Power of Government to State
`Its Own Views and to Disagree with
`Private Actors
`Is a Cornerstone
`Component of Free Expression.
`This Court has long recognized the authority of
`a government entity “to ‘speak for itself.’” Pleasant
`Grove City v. Summum, 555 U.S. 460, 467 (2008)
`
`

`

`5
`(quoting Board of Regents of Univ. of Wis. System v.
`Southworth, 529 U.S. 217, 229 (2000)). “[I]t is entitled
`to say what it wishes.” Id. at 467-68 (quoting
`Rosenberger v. Rector and Visitors of Univ. of Va., 515
`U.S. 819, 933 (1995)). The government, no less than a
`private actor, is free to select the views it wants to
`express. Id. at 468 (citing Rust v. Sullivan, 500 U.S.
`173, 194 (1991)). The overarching principle is that gov-
`ernment “may interject its own voice into public
`discourse.” Phelan v. Laramie Cty. Cmty. Coll. Bd. of
`Trustees, 235 F.3d 1243, 1247 (10th Cir. 2000) (citing
`Meese v. Keene, 481 U.S. 465, 480-82 (1987)).
`Because government speech is simply another form
`of expressive conduct, the government’s own expres-
`sive conduct is distinct from the regulation of private
`speech prohibited by the Free Speech Clause. See
`Summum, 555 U.S. at 467 (“If petitioners were
`engaging in their own expressive conduct, then the
`Free Speech Clause has no application. The Free
`Speech Clause restricts government regulation of
`private speech; it does not regulate government
`speech”) (citing Johanns v. Livestock Marketing Assn.,
`544 U.S. 550, 553 (2005) (“[T]he Government’s own
`speech . . . is exempt from First Amendment
`scrutiny”)). The First Amendment does not restrain
`government “from controlling its own expression.”
`Columbia Broadcasting Sys., Inc. v. Democratic Nat’l
`Cte, 412 U.S. 94, 139, n.7 (1973) (Stewart, J.,
`concurring). Meaningful free expression requires that
`government actors and entities must be free to express
`their own thoughts and ideas with the same force,
`vigor, and conviction as any private speaker.
`
`
`
`

`

`6
`B. The Fifth Circuit’s Holding Undercuts
`the Government’s Power to Censure
`and Upends the Balance of First Amend-
`ment Protections to Chill Government
`Speech.
`The Fifth Circuit’s holding declares that one mem-
`ber of a government entity is protected in expressing
`scurrilous criticism of the entity and its members, yet
`when the government entity meets this criticism with
`its own expression by censure, its words give rise to a
`§ 1983 claim. The asymmetric decision to privilege one
`form of expression over another based on the identity
`of the person or entity speaking has far-reaching
`implications. Interjecting a private right of action
`against HCC’s decision to censure one of its own
`trustees casts aside the long history of censure as
`an appropriate method of government self-regulation
`consistently upheld by the courts. Moreover, the
`decision below threatens and chills government bodies
`from expressing their own views in the face of the
`threat that the offended subject of any such expression
`may file suit challenging the government’s speech as a
`civil rights violation.
`The very notion of public discourse, including the
`government’s ability to advocate for a particular
`position, to educate, or to disagree, is incompatible
`with what amounts to a dissenter’s veto on govern-
`ment speech. This Court has recognized that erecting
`a wall between government actors and disagreeable
`speech would “radically transform[]” the process of
`government by silencing those elected and appointed
`to create and carry out the very policies that are the
`subject of such vigorous debate. Summum, 555 U.S.
`at 468. The boundaries of the government’s ability to
`speak on matters of public concern cannot be defined
`
`

`

`7
`by the sensibilities of whomever is most readily
`offended by such speech.
`
`1. Allowing a Private Constitutional
`Claim in Response to Censure is
`Contrary to the Long History of the
`Legislative Power to Censure.
`The government’s power to express strong disap-
`proval of an official’s words or conduct through
`censure has deep historical roots cut short by the Fifth
`Circuit’s creation of a private right of action against
`censure under § 1983. Censure is one of the oldest
`mechanisms of self-governance found in English and
`American governing bodies. See, e.g., 2 Journal of the
`House of Lords, 1578-1614, at 327-28 (1830). “Ameri-
`cans at the founding and after understood the power
`to punish members as a legislative power [as] inher-
`ent.” Whitener v. McWatters, 112 F.3d 740, 744 (4th
`Cir. 1997) (holding that a board’s decision to censure
`member for using “abusive language” did not violate
`the First Amendment). “This power . . . is the primary
`power by which legislative bodies preserve their ‘insti-
`tutional integrity.’” Id. (quoting Powell v. McCormick,
`395 U.S. 486 (1969)). Therefore, “because citizens may
`not sue legislators for their legislative acts, legislative
`bodies are left to police their own members” and
`“[a]bsent truly exceptional circumstances, it would
`be strange to hold that such self-policing is itself
`actionable in a court.” Id.
`The power to censure is effectively enshrined in
`the U.S. Constitution, which authorizes each house
`of Congress to “punish its Members for disorderly
`Behavior, and, with the Concurrence of two thirds,
`expel a Member.” U.S. Const. art. I, § 5, cl. 2. Congress
`has exercised its power more than two dozen times
`over two centuries, including for insulting other legis-
`
`

`

`8
`lators, using unparliamentary language, supporting
`the recognition of the Confederacy, describing Recon-
`struction as a “monstrosity,” and engaging in various
`acts of misconduct or ethics violations. See U.S. House
`of Representative List of Individuals Expelled, Cen-
`sured, or Reprimanded in the U.S. House of Repre-
`sentatives, History, Arts, & Archives, available at
`http://history.house.gov/Institution/Discipline/expulsi
`on-censure-reprimand/ (last accessed July 13, 2021);
`U.S. Senate, About Censure, Powers & Procedures,
`available at https://www.senate.gov/about/powers-
`procedures/censure.htm (last accessed July 13, 2021).
`The “traditional ways of conducting government”
`themselves “give meaning to the Constitution.”
`Mistretta v. United States, 488 U.S. 361, 401 (1989).
`It would be a peculiar outcome if Congress were free
`to express its condemnation of a member’s words or
`actions through censure, yet the same expression were
`denied to other governmental bodies. Yet that is
`precisely what has happened here. The Fifth Circuit’s
`ruling stands at odds with the decisions of its sister
`circuits, which have found that a governing board’s
`exercise of its historical censure power against one
`of its own members, without the imposition of
`personal penalties, is not actionable under the First
`Amendment. See, e.g., Werkheiser v. Pocono Twp., 780
`F.3d 172, 181-83 (3d Cir. 2015); Blair v. Bethel Sch.
`Dist., 608 F.3d 540, 543-46 (9th Cir. 2010); Phelan, 235
`F.3d at 1247; Zilich v. Longo, 34 F.3d 359, 363-64 (6th
`Cir. 1994).
`The HCC board is a public body. The decision to
`censure Respondent was itself the outcome of a public
`process and public debate, and an exercise of HCC’s
`historical power to self-regulate. Respondent was
`free to speak in his own defense against censure and
`
`

`

`9
`suffered no material detriment or coercion—making
`his censure an act of pure expression. To interject a
`private right of action under § 1983 into these
`circumstances subverts a historic legislative power
`and silences legislative discourse. Such a rule takes
`sides against the censuring body on behalf of the
`censured member. This would serve as an unnecessary
`intrusion into government self-policing where, as here,
`there was no other material sanction.
`
`2. The Fifth Circuit’s Decision Rele-
`gates Government Speech to Infe-
`rior Status and Chills the Expression
`of Government Viewpoints.
`The implications of the Fifth Circuit’s ruling are
`not limited to the historical power of censure; it has
`far-reaching implications for government speech as a
`whole, insofar as it relegates speech by a government
`official or entity to a permanent position of inferiority
`relative to private expression. More than that, it
`subjects a government speaker to the coercive threat
`of § 1983 litigation as the consequence of expressing
`any view deemed offensive by a contrary private
`speaker. Such coercion and intimidation would be
`intolerable if exercised by the government against
`private expression, and is no less so when exercised by
`a private party against government expression.
`This Court has observed it is “not easy to imagine
`how government could function if it lacked” the
`freedom to express itself. Summum, 555 U.S. at 468.
`“If every citizen were to have a right to insist that no
`one paid by public funds express a view with which he
`disagreed, debate over issues of great concern to the
`public would be limited to those in the private sector,
`and the process of government as we know it radically
`transformed.” Id. at 468 (quoting Keller v. State Bar
`
`

`

`10
`of Cal., 496 U.S. 1, 12-13, (1990); and citing Johanns,
`544 U.S. at 574 (Souter, J., dissenting) (“To govern,
`government has to say something, and a First
`Amendment heckler’s veto of any forced contribution
`to raising the government’s voice in the ‘marketplace
`of ideas’ would be out of the question” (footnote
`omitted)). Mere “hurt feelings or reputational injuries”
`are “not enough to defeat constitutional interests in
`furthering ‘uninhibited, robust’ debate on public
`issues.” Phelan, 235 F.3d at 1248 (quoting New York
`Times v. Sullivan, 376 U.S. 254, 270 (1964)).
`The Fifth Circuit’s ruling turns these principles
`upside-down, granting offended persons a constitu-
`tional right of action against government speakers
`simply for allegedly giving offense. The dissent from
`the denial of en banc rehearing below aptly recognized
`the consequences of this decision. “In so holding, the
`panel opinion exacerbates a circuit split, threatens to
`destabilize legislative debate, and invites federal
`courts to adjudicate ‘free speech’ claims for which
`there are no manageable legal standards.” Wilson v.
`Houston Cmty. College Sys., 966 F.3d 341, 342 (5th
`Cir. 2020) (Jones, J., joined by Willet, Ho, Duncan and
`Oldham, J., dissenting from the denial of rehearing en
`banc). “Holding office in America is not for the faint of
`heart. With leadership comes criticism—whether from
`citizens of public spirit or personal malice, colleagues
`with conflicting visions or competing ambitions, or all
`of the above.” Id. at 345. (Ho, J., dissenting from the
`denial of rehearing en banc). “‘We know of no case in
`which the [F]irst [A]mendment has been held to be
`implicated by governmental action consisting of no
`more than governmental criticism of the speech’s
`content.’ After all, the First Amendment does not
`‘consider[] speakers to be so timid, or important
`ideas to be so fragile, that they are overwhelmed by
`
`

`

`11
`knowledge of governmental disagreement.’” Id. at 346
`(quoting Block v. Meese, 793 F.2d 1303, 1313 (D.C. Cir.
`1986) (Scalia, J.)).
`Taken to its logical and deleterious conclusion, the
`opinion below reopens to § 1983 scrutiny innumerable
`acts of pure government speech this Court previously
`held do not violate First Amendment protections. For
`example:
` Walker v. Tex. Div., Sons of Confederate
`Veterans, 576 U.S. 200 (2015) (holding
`Texas Department of Motor Vehicles
`Board’s rejection of a proposed specialty
`license plate design featuring a Confederate
`battle flag constituted government speech)
` Sunnum, 555 U.S. at 460 (holding that
`rejection of the placement of a permanent
`monument in a public park was protected
`government speech)
` Johanns, 544 U.S. at 550 (upholding gov-
`ernment requirements for beef producers
`to contribute money to support a govern-
`ment advertising message over objections
`of producers who objected to the message).
` Rust, 500 U.S. at 173 (upholding new gov-
`ernment regulations that limited speech
`on the subject of abortion for those receiv-
`ing government funding).
`These far-reaching consequences are unwarranted
`and unsupported by any competing principle. When
`government speaks, and does so without coercion or
`material sanction, its expression merits protection in
`equal measure to private speech. Here, the govern-
`ment spoke; nothing more. It spoke vigorously and its
`
`

`

`12
`speech was no doubt disagreeable to Respondent as
`the subject of the censure, but the existence of clashing
`viewpoints does not support a constitutional claim
`under § 1983.
`
`C. The Direct and Indirect Consequences
`of Silencing Government Speech Fur-
`ther Support a Rule Promoting Robust
`Government Discourse.
`Allowing government officials and government
`bodies to have a free and robust voice in the
`marketplace of ideas is an issue of special concern, as
`silencing government voices both
`thwarts an
`important governmental function and carries the
`potential for unintended consequences incentivizing
`more coercive action. This Court has long adhered to
`the dual principles that the remedy to “falsehood and
`fallacies” is “more speech, not enforced silence,” and
`“the best test of truth is the power of the thought to
`get itself accepted in the competition of the market.”
`Alvarez, 567 U.S. at 727-28 (quoting Whitney, 274 U.S.
`at 377 (Brandeis, J., concurring); Abrams, 250 U.S. at
`630 (1919) (Holmes, J., dissenting)).
`This principle requires that government not impose
`coercive consequences upon free speech, even offensive
`speech. Yet it equally demands that government
`speakers, expressing themselves without coercing
`their opponents, retain the ability to disagree. To
`subject government speakers to a claimed civil rights
`violation each time they reprimand, censure, or
`otherwise condemn an opposing voice—even when
`they do so without material consequence—is to sup-
`press valid government speech and, in consequence,
`may encourage efforts at content-based mandates.
`
`

`

`13
`Illustrating both points is the role government
`speech has come to play in identifying and calling
`out antisemitism and hate in the public square and
`on college campuses, as through the IHRA Working
`Definition of Antisemitism, adopted in 2016. See
`IHRA, Working Definition of Antisemitism (May 26,
`2016), available at https://www.holocaustremembr
`ance.com/resources/working-definitions-charters/work
`ing-definition-antisemitism (last accessed July 12, 2021)
`(the “Working Definition”).2 The IHRA created the
`Working Definition to build international consensus
`around the meaning of antisemitism as an “example of
`responsible conduct for other international fora” and
`to provide “an important tool with practical applicabil-
`ity for its Member Countries” to “equip[] policymakers
`to address th[e] rise in hate and discrimination at their
`national level.” Id. Its primary function is to enable
`governments t

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