Open meetings law is a peril to free speech by elected officials
The First Amendment to the United States Constitution is simple: “Congress shall make no law … abridging the freedom of speech, or of the press.”
It is the First Amendment to the Bill of Rights because our Founding Fathers thought it the most important. Many of them had been fined or jailed by the British for their political speech.
The Texas Open Meetings Act singles out elected officials, representative of the citizens who elected them, and threatens them with jail for engaging in political speech — the very thing that they were elected to do. Justice Anthony Kennedy, writing the majority opinion recently for the Supreme Court in Citizens United v. FEC”\, stated: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens … for simply engaging in political speech.”
In our representative form of government, once an official is sworn into office, he or she is rendered mute and cannot speak out about public matters, except at a noticed public meeting. If one city council member sees another at Walmart and talks about local politics and then runs into a third member at a restaurant, exchanging similar political chat, all three have committed a crime and could go to jail for six months.
All the residents of Austin can talk about local issues with each other, with the glaring exception of the Austin City Council — members can only do it at the City Council meetings. Just talk, no decision, equals a crime.
Trying to run a state this way is ludicrous, so the Texas Legislature specifically has exempted itself from the Open Meetings Act. Every person in Texas (including the Legislature) has free speech rights to engage in robust political speech — with the exception of elected officials.
You can criticize me all you want, but if you were elected to a city council or school board, you could go to jail for criticizing me outside of a public meeting.
We are not in favor of secret agreements. The Open Meetings Act has other provisions and penalties (including the conspiracy provisions) that would remain intact if 17 elected officials and four Texas cities win their federal lawsuit.
We favor free spech — wherever it occurs. We want to make sure that Texans elected to public office don’t lose their First Amendment rights just because they are elected officials.
Right now, in Texas, the First Amendment protects this newspaper in its criticism of the open meetings lawsuit. It protects me for prosecuting the lawsuit. It protects readers for commenting on it. But it threatens to put any public official in jail for discussing the litigation outside of a public meeting.
Most states set aside actions taken in violation of open meetings acts or impose a civil fine. Texas is one of just six with jail time, and Texas defines a meeting so broadly it includes all political speech, not just a secret decision.
There is nothing in the Constitution that grants to citizens the right to censor their public officials. The Open Meetings Act is a legislative creature, and its criminal provisions must fall if it violates the very important First Amendment rights that protect all of us — including elected officials.
Tell the Legislature to make a law that does not throw elected officials in jail for political speech but still prohibits secret decisions. Forty-six states have such laws. Texas should join the mainstream.