Law a peril or guard to free speech pro­tec­tion?

Cities, of­fi­cials ask judge to re­move state rule on open meet­ings

Austin American-Statesman - - FRONT PAGE - By Chuck Lindell

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.

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