Open meet­ings law is a peril to free speech by elected of­fi­cials

Austin American-Statesman - - OPINION - rod Pon­ton SPE­CIAL CON­TRIb­U­TOR Pon­ton is alpine’s city at­tor­ney and co-coun­sel for plain­tiffs in alpine v. abbott, which chal­lenges the texas open Meet­ings act.

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.

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