Law a peril or guard to free speech protection?
Cities, officials ask judge to remove state rule on open meetings
Seventeen elected officials and four Texas cities, including Pflugerville, have asked a federal judge to scrap the state’s Open Meetings Act, arguing that their free speech rights trump a law that requires most government business to be conducted in public.
The officials say the Texas law stifles “uninhibited, robust and wide-open” debate on public issues — the opposite effect intended by the U.S. Constitution’s free speech protection. They say they should not have to forfeit their First Amendment freedoms when taking public office.
But in a case that raises concern in other states with open-government laws, defenders of the Open Meetings Act say the case should be thrown out because the officials are seeking to protect secret speech, not free speech.
“The First Amendment protects citizens against government oppression — not government against citizen oversight,” Texas Solicitor General James Ho wrote in legal briefs. “Openness in government is a First Amendment virtue, not a First Amendment violation.”
The competing theories on the First Amendment — which guarantees the key democratic freedoms of speech, religion and assembly — are set out in recently filed motions for summary judgment, with each side asking U.S. Judge Robert Junell to rule in their favor without
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the benefit of a trial.
Junell’s decision will likely be appealed, setting up the appellate courts for a precedent-setting decision on the future of the Open Meetings Act, a 1967 law credited — by both sides in the legal dispute — with minimizing back-room deals by elected and appointed public officials.
Reply motions are due within a month. Junell has no time limit on issuing a ruling from his Pecos court.
Under Texas law, quorums of a governmental body cannot discuss most public business or public policy except in a properly called meeting — generally with at least 72 hours notice — that is open to the public. (Discussions of personnel matters, real estate deals and other specified actions are allowed in closed sessions.) Violators can receive up to six months in jail and a $500 fine.
The public officials argue that they are improperly threatened with criminal prosecution by a vague, confusing and difficult-to-follow law. Free-speech rights are violated every time officials censor themselves by declining to discuss public matters with one another or constituents except during a meeting, their lawsuit says.
A limited victory
The federal lawsuit is lawyer Dick DeGuerin’s second attempt to toss out or place limits on the Open Meetings Act.
DeGuerin had mixed results with the first lawsuit, filed on behalf of Alpine City Council members who were prosecuted for discussing city business via e-mail. Junell, who handled that case as well, ruled against the council members in 2006, saying the law “simply requires speech to be open and public.”
“To allow a quorum to deliberate public policy issues outside the public view would turn open meetings into sessions where public officials simply approved messages previously debated over phone or e-mail,” Junell ruled.
The 5th U.S. Circuit Court of Appeals reversed Junell in 2009.
A three-judge panel ruled that the Texas law regulates the content of speech by limiting what officials can talk about — in this case, public business. But such content-based limits are illegal, the judges ruled, unless they promote a compelling government interest in the least restrictive manner available — an intentionally rigorous and difficult-to-meet standard.
Texas Attorney General Greg Abbott, joined by 18 states worried about losing their open-government laws, asked the entire 17-judge appeals court to reconsider the ruling.
Abbott’s side won a limited victory when the full court threw out the ruling — and the entire case — because the plaintiffs were no longer members of the Alpine City Council and therefore lacked the standing to sue.
Without a court ruling on the merits of his case, DeGuerin was able to re-file the lawsuit, this time with plenty of current officials and the backing of Pflugerville and four other cities, although Big Lake has since withdrawn.
The lawyers are providing representation without charge, said Floyd Akers, Pflugerville city attorney. “They even paid the filing fee out of their own pockets,” he said.
The Pflugerville City Council voted unanimously to join the lawsuit because state law “criminalizes free speech, and we are very much opposed to that,” Akers said. Council Member Victor Gonzalez also is named as a plaintiff.
The cities’ arguments
The elected officials have asked Junell to strike down the Open Meetings Act — or prohibit it from being enforced — until the Legislature can write a law that they say does not violate the First Amendment.
In the motion for summary judgment, their arguments boil down to three points:
State law singles out elected officials for prosecution “for merely discussing public issues or receiving correspondence or e-mail,” yet the Supreme Court has said the First Amendment cannot be applied unequally to different classes of people.
Texas improperly muzzles public officials by regulating when and where they can discuss political and public business.
Texas law is so vague that compliance is virtually impossible. What constitutes public business is left for prosecutors and judges to define, giving them unfettered discretion — which could be abused — over what can be discussed outside of a meeting.
“These public officials have a legitimate fear of the ‘threat of prosecution’ for allegedly violating the criminal provisions of (the act), merely by exercising their First Amendment rights of free expression,” the motion reads.
The state’s arguments
Abbott and Ho, the top appellate lawyer in the attorney general’s office, argue that the lawsuit attempts to pervert the intent behind free-speech rights.
“The fundamental purpose of the First Amendment is to enable and empower people to engage in free, robust discourse about their government,” they told Junell in legal briefs. “Open meetings laws thus further, rather than frustrate, fundamental First Amendment values by educating the public about the conduct and content of public business.”
In fact, Abbott and Ho said, courts frequently invoke the First Amendment to require public access to many government proceedings.
“Every State has enacted an open meetings law. And every court to have addressed the issue has rejected First Amendment challenges to such laws,” they wrote.
The state’s brief also noted that the Open Meetings Act applies only to a quorum of officials, leaving public servants free to discuss business in a vast array of circumstances.
“What plaintiffs seek here is … immunity for government officials from political accountability to their constituents,” the brief said.