On Tuesday, the Supreme Court’s first hearing will involve a significant test of the meaning of the First Amendment, perhaps taking the Justices all the way back to the founding era in the 18th Century. A second hearing tomorrow examines a nearly century-old law about settling disputes without suing in court. The “live” audio of both can be heard at the Quick Links on the Court’s homepage – supremecourt.gov – and at c-span.gov/supreme court as well as C-Span Now App.
First case: Houston Community College System v. Wilson (The hearing starts at 10 a.m.; it is scheduled to last 70 minutes.)
Background: The Bill of Rights has been a part of the U.S. Constitution since 1791, but there are still some unanswered questions about it. This case raises one of those, in a straightforward test of whether the First Amendment protects free-speech rights for elected government officials.
Although the Court has spent decades writing constitutional rules that spell out the free-speech rights of people who have government jobs, that has been only about employees, not elected officials. (The basic rule for employees is that the First Amendment protects them from discipline if they create controversy by speaking out on issues of general public concern, but allows them to be penalized if their remarks are about workplace issues and cause disruption there.)
The Court has never ruled on claims by elected officials that they, too, are protected by the First Amendment from disciplinary action (here, censure by their colleagues) for what they have said publicly. The lower federal courts are split on whether the First Amendment provides such a shield.
The case involves a particularly nettlesome member of the governing board of a public college system in Houston. From the time he was elected one of the board’s nine members in 2013, David Buren Wilson engaged in repeated disruptive actions, including filing a series of lawsuits against the board which cost the system $299,000 in legal fees, harassing other members of the board, and waging a relentless publicity campaign challenging board actions.
The final straw came when the college system was threatened with loss of its formal accreditation because of the chaos in the board and serious questions over its leadership. The board, lacking the power to dismiss Wilson from the board, in January 2018 approved a censure resolution, declaring that his conduct “was not only inappropriate, but reprehensible.” It ordered him to “cease and desist” his misbehavior.
Wilson countered, going into state court again to claim that the censure violated his free-speech rights under the First Amendment. The college and its trustees had the case transferred to federal court. While a federal trial judge ruled that an elected official had no constitutional right not to be criticized for his public expressions, a federal appeals court disagreed, finding that Wilson’s free-speech rights had been violated. (By that time, Wilson had left the board.) The college then took the case on to the Supreme Court.
The question before the Court: Does the First Amendment restrict the power of an elected governing body to censure one of its members for speaking out against it?
Significance: America has multitudes of elected public governing bodies, from Congress down to the local school board and city council, and the practice of censuring such a body’s own members for misconduct is now common. Some scholars trace the practice back to the 17th Century.
The Supreme Court’s review of the Houston case will take it back to the founding generation’s notion of what the First Amendment means in this context. The Constitution does protect the members of the House and Senate from being challenged outside the halls of Congress for what they say while engaging in their duties, but says nothing that limits the two houses’ traditional authority to formally reprimand misbehaving members.
In Congress’s history, the House of Representatives has censured 28 members and reprimanded 11 others – most recently, last year – and the Senate has censured nine members. Perhaps the most famous such action was the 1954 censure by the Senate of Wisconsin Republican Senator Joseph McCarthy over his bullying investigation into claims of disloyalty in the U.S. Army’s ranks – hearings in which the Army’s lawyer, Joseph N. Welch, admonished the Senator: “Have you no sense of decency, sir?”
The new case from Houston takes the power-to-censure issue down to the local level. Although the outcome has the potential to make history, the question is basically a simple one of reading history, probably with deference to the traditional powers of legislative bodies in general.
The only difficulty could come over whether the Court feels a need to go beyond simple censure, with no other punitive action added in – such as loss of the privileges of office or financial penalties. In fact, the Biden Administration has entered the case to urge the Justices to confine their review to censure – period. Otherwise, it supports an overall ruling that censure by itself does not violate the Constitution. (An Administration lawyer will be given time to join in the hearing, expending it to 70 minutes.)
Second case: Badgerow v. Walters (This hearing, scheduled for one hour, will begin shortly after the first hearing ends.)
Background: This is a case about a very old legal phenomenon, arbitration. Its history goes back as far as King Solomon (and probably earlier). There is the famous Bible story of how Solomon, arbitrating a dispute between two women about which of them was the mother of a particular child, proposed that the child be divided in half. But when that created a new disagreement, he relented and picked the mother he deemed to be the right one.
In American law, arbitration proceedings generally will not be as simple as that. The most important development in this field occurred in 1925, when Congress first enacted the Federal Arbitration Act. Arbitration can be an attractive alternative to settling legal disputes by lawsuits in court. Suing, of course, can be very expensive – especially the cost of the lawyers’ time. Almost any lawsuit requires a good deal of pre-trial preparation even before a trial, and fees continue to mount up quickly as the case proceeds. So do court costs.
Arbitration is fundamentally a private process and it is supposed to be a lot less expensive than a lawsuit, and, hopefully, a lot less formal and complex procedurally. In its simplest form, two sides agree to settle disputes that they believe will arise and also agree to be bound by a decision made by a neutral arbitrator that both have accepted.
But, like a lot of life in the law, arbitration can itself create disputes that wind up in court. That can happen before arbitration starts, when two sides disagree over whether the dispute is one that should go to an arbitrator, and after a decision is made, when one side or the other wants to overturn the result.
The 1925 law is a rather curious one. It governs how the rules of arbitration law are to be implemented, at both the state and federal level. Very few federal laws apply at both levels. But, if a dispute over arbitration heads toward federal court, the Act does not give federal courts the specific authority to decide any arbitration issue; any authority to do so must come from a source other than the Act itself.
State courts also get involved in arbitration cases; in fact, most attempts to challenge an arbitrator’s decision are pursued in state court, which have wider authority than federal courts usually do.
The Constitution’s Article III is clear that federal courts have only limited jurisdiction; they can’t act, as they often say, as “roving commissions” to decide any legal dispute that arises. But where would a federal court get the authority to rule in an arbitration case?
In 2009, the Supreme Court ruled that a federal court can hear a case involving a pre-arbitration dispute over whether the matter should go to arbitration, if the dispute involves claims under a specific federal law that the courts would normally have had authority to decide had those claims been raised in a regular lawsuit in federal court.
This case shifts the situation of federal court power to rule from whether a case should have gone to arbitration to the separate question of whether to uphold or strike down or modify a final decision by an arbitrator, at the end of the process.
The case began when a Louisiana woman, Denise Badgerow, was fired from her job with a franchise of the large financial planning firm, Ameriprise Financial Services, Inc. Her job required her to take to arbitration any dispute she had with the firm about her job. She claimed that her superiors had violated federal laws governing financial institutions when they fired her after she complained about sexual harassment on the job.
She took the dispute to an arbitrator, who rejected her claim. Using her rights under Louisiana law, she asked a Louisiana state court to overturn the arbitrator’s ruling. Her employers, using their rights under federal court rules, transferred the case to federal courts, which upheld the arbitrator.
Badgerow then appealed to the Supreme Court, arguing that the federal courts had no authority to even hear the case simply because her basic complaint was based on claims that federal laws were violated. She hopes to have the case sent back to state court so she can pursue her challenge to the arbitrator’s ruling.
The question before the Court: Does a federal court have the authority to rule for or against an arbitrator’s final decision, if that decision came in a dispute based on claims under federal law?
Significance: The meaning of the 1925 federal law on arbitration is widely important in the business world, affecting disputes ranging from employment to consumer rights to major dealings by corporations. The importance of this case is that the lower federal courts are now split on whether federal courts have jurisdiction to hear a case like the one that led Badgerow’s claim to wind up in federal court.
The case basically involves an interpretation of the 1925 federal law, but issues over judicial authority under the Constitution’s Article III could be explored.
On Wednesday, the Court will hold a single hearing, involving a major question on how the Justices will interpret an individual’s right under the Second Amendment to have a gun for personal use.