During President Trump's second impeachment trial, Seth Barrett Tillman and I wrote that elected officials, including the President, retained their First Amendment right to freedom of speech. (See here, here, here, and here.) We often quoted from Chief Justice Rehnquist's classic book about presidential impeachments, Grand Inquests. He observed that, during times of conflict, "[p]rovisions in the Constitution for judicial independence, or provisions guaranteeing freedom of speech to the President as well as others, suddenly appear as obstacles to the accomplishment of the greater good." Yet, some of our critics argued that elected officials had reduced First Amendment rights, and their speech was subject to the Pickering/Garcetti line of cases. In other words, elected officials would be treated in the same fashion as civil servants.
In Houston Community College v. Wilson, the Supreme Court reaffirmed that elected officials have free speech rights. Justice Gorsuch's unanimous majority opinion reflects this position--and it did not seem controversial at all.
First, the Court stated, directly, that elected officials retain their free speech rights. These accountable officials need to exercise those rights to fully represent their constituents.
