While most eyes were on the confirmation hearings of the Court’s next (presumptive) justice, the current crew kept busy with two new decisions, each touching on First Amendment concerns. In Houston Community College System v. Wilson (No. 20-804), the Court held that the First Amendment does not preclude a public college from censuring one of its employees in alleged retaliation for his own speech. And in Ramirez v. Collier (No. 21-5592), the Court once again ordered prisons to accommodate reasonable requests from death-row inmates to be accompanied by pastors in the execution chamber, while also expressing some frustration that these cases keep arising.
Speech first. In Wilson, the board of a community college system verbally reprimanded one of its members for his years-long campaign of public criticism against his fellow board members. He responded with more criticism, but also a lawsuit, alleging that the Board’s verbal censure violated the First Amendment by retaliating against him for his protected speech. But a unanimous Court held it did not, given both the centuries-old history of such legislative censures and the board member’s failure to show that the censure meaningfully impacted his ability to voice his views.
The case began when David Wilson was elected to the Board of the Houston Community College System, a public entity responsible for managing various community colleges. From the beginning, he didn’t get along, disagreeing with his colleagues on countless HCC decisions (small and large). And when he didn’t get his way, he soon brought various lawsuits challenging the Board’s actions. The Board publicly reprimanded him, but that only escalated things, as Wilson soon began publicly accusing Board members of violating the Board’s bylaws and ethical rules, hiring private investigators to surveil other board members, and bringing more lawsuits. Finally, the Board adopted a public resolution “censuring” Wilson, which stated that Wilson’s conduct was inconsistent with the College’s best interest, “inappropriate,” and “reprehensible.” It also imposed some penalties, including barring Wilson from serving in certain officer positions and declaring him ineligible for certain Board funds (such as travel reimbursements).
In response, Wilson amended the pleadings of one of his pending actions against the Board, alleging that its censure resolution violated the First Amendment. The Board removed the case to federal court, where the district court dismissed for lack of standing. But the Fifth Circuit reversed, concluding that Wilson had standing and he had a viable First Amendment claim over the Board’s verbal censure, but not for its suspension of his privileges. The Board sought certiorari, which the Court granted. But in briefing, Wilson asked the Court to also examine the Fifth Circuit’s conclusion that he had no viable claim based on the Board’s nonverbal punishments. The Court declined to expand the question presented in this way, limiting the case solely to whether Wilson had an actionable First Amendment claim arising from the Board’s verbal censure.
Writing for a unanimous Court, Justice Gorsuch concluded he did not. Wilson based his claim on a line of cases holding that government officials violate the First Amendment when they subject individuals to “retaliatory actions” after they engaged in constitutionally protected speech. But the first problem with applying this theory to the Board’s censure resolution was history. Since even before the Founding, elected bodies like the Board have regularly issued verbal censures of their members like the one here. Nothing in the history of the First Amendment suggested that it was understood to upend this established practice. To the contrary, the early Congress continued it, censuring members for engaging in conduct thought unbecoming of their office. And this practice has been even more widespread at the state and local level, with small legislative bodies issuing dozens of censures like this one every year. This history arguably put to rest Wilson’s theory. But at the very least, it placed a heavy burden on Wilson to show that his claim was supported by established First Amendment cases.
On that score, Justice Gorsuch found little that would help Wilson. Among other problems, a First Amendment retaliation claim requires the plaintiff to show that the government took an “adverse action” in response to protected speech that “would not have been taken absent the retaliatory motive.” Usually “adverse action” means something like being arrested, prosecuted, or fired. While less harsh deprivations can suffice, the Court concluded the Board’s censure fell far short of the sort of meaningfully adverse action the First Amendment prohibits. That was so for two main reasons. First, Wilson was an elected official and thus should expect to shoulder a greater degree of criticism regarding his public conduct than private persons. Second, the only adverse action taken by the Board (at least that was properly before the Court) was pure speech. And if the First Amendment is going to protect Wilson’s right to criticize the Board, it also has to tolerate the Board’s criticism in response. Tying these points together, the Court saw no indication that the Board’s purely verbal censure sufficiently chilled Wilson’s speech so as to raise First Amendment concerns.
While that’s so for Wilson, the Court left open the possibility that reprimands and censures could give rise to a First Amendment retaliation claims in other circumstances, such as when public officials censure private persons. It also left unaddressed whether legislative censures accompanied by punishments could violate the First Amendment. Finally, the Court quickly dispensed with Wilson’s reliance on cases holding that a state legislature’s refusal to seat a duly elective representative violated the First Amendment. Among other things, those sorts of punishments greatly differed from the purely verbal censure here.
On to religion, and its place in the execution chamber. Ramirez v. Collier is the latest in a line of decisions over the last few years addressing religious accommodations during executions. In Murphy v. Collier (2019), the Court held that a prison that permitted state-employed (mostly Christian) chaplains in the execution chamber must also permit “spiritual advisors” from other faiths, even if not prison employees. That prompted Texas and some other states to ban all chaplains and spiritual advisors, so as not to violate the First Amendment’s prohibition on discrimination among religions. That then prompted more lawsuits, now under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, arguing that prisons must accommodate a death-row inmate’s request to have a spiritual advisor present in the execution chamber. In two cases decided without opinion in 2020 and 2021, the Court stayed executions unless inmates were granted religious executions. In response to those decisions, Texas began permitting spiritual advisers once more, subject to several requirements.
John Ramirez—sentenced to death for a 2004 murder—sought permission under the new policy to have his pastor present at his execution, but went one step further: He asked that his pastor be permitted to “lay hands” on him and “pray over” him while the execution was taking place. Texas refused, insisting that spiritual advisors are “not allowed to touch an inmate while inside the execution chamber,” though its written policies said nothing about that. After going through the prison grievance process, Ramirez filed suit seeking an injunction permitting his pastor to lay hands on him and pray with him during the execution. The District Court and the Fifth Circuit rejected his claims, but the Supreme Court granted a temporary stay and heard argument on an expedited basis in November.
In an 8-1 decision authored by the Chief Justice, the Court held that Ramirez he was likely to succeed on his RLUIPA claims (and therefore entitled to a stay) because Texas’s restrictions on religious touch and audible prayer in the execution chamber burden religious exercise and are not the least restrictive means of furthering the State’s compelling interests. The Chief began by brushing aside Texas’s argument that Ramirez had failed to properly exhaust administrative remedies, finding that the State had waived certain exhaustion-related arguments and that Ramirez had “clearly conveyed” through the grievance process that he wished to have religious touch and audible prayer while he is executed. On the merits, the Chief noted that RLUIPA effectively imposes strict scrutiny on any prison restriction that substantially burdens religious exercise. Ramirez had shown that his request was based on a sincerely held religious belief (notwithstanding that he had previously stated that his pastor need not touch him during the execution) and the State had failed to show that its refusal to accommodate his requests was the least restrictive means of furthering its interests in security and decorum during executions. After all, the Chief noted, other states permit physical touch and audible prayer during executions, and there are alternative means of achieving the State’s “commendable goals,” including regulating the volume of prayer and limiting where an inmate can be touched. Because Ramirez’s sincerely held beliefs could be accommodated without significant difficultly, the Court granted a preliminary stay of execution. Texas can proceed to execute Ramirez with his pastor present, or continue to litigate while the stay remains in place.
Justice Kavanaugh joined the Court’s opinion in full, but wrote separately to provide a little more background on how these claims have recently arisen and the challenges they pose for prisons given RLUIPA’s strict standard. Echoing some of the frustration the Chief included in the majority opinion, Kavanaugh pointed out that states can avoid stays and delays in scheduled executions if they err on the side of permitting religious accommodations that don’t interfere with their interest in safety, security, and solemnity.
Justice Sotomayor also wrote separately to address the exhaustion question. As she noted, the Prison Litigation Reform Act only requires inmates to exhaust “available” remedies, and in the execution context, prisons may need to take extra steps to ensure the availability of remedies.
Justice Thomas was the lone dissenter. As he often does in these cases, Thomas provided considerably more detail on the nature of Ramirez’s crimes. And to that narrative, he added another: The story of how (in Thomas’s view) Ramirez had engaged “in an 18-year pattern of evasion,” beginning with his flight from justice following the murder and continuing through his various grievances and lawsuits, all aimed at delaying his ultimate punishment. Most egregiously in Thomas’s view, Ramirez had filed one grievance in 2020 explicitly stating that his pastor “need not touch” him in the execution chamber, only to change his position and file a new suit making new demands after Texas accommodated the first one. Given Ramirez’s own “inequitable” conduct, Thomas would deny him the equitable relief of a further stay of execution.
That’s all for this week. We’ll be back with more when there’s something to share.
Tadhg and Dave