Court: meetings act does not violate First Amendment

Christine Beckett | Freedom of Information | Feature | March 28, 2011

A U.S. district court on Friday held in Asgeirsson v. Abbott that the Texas Open Meetings Act does not violate the constitutional free speech rights of city officials by requiring them to conduct meetings in public.

Plaintiffs and city officials, including city council members, aldermen and mayors, claimed that the Open Meetings Act is unconstitutionally vague, overbroad and in violation of the officials' First Amendment rights. They argued that the act suppresses speech because officials fear being charged with criminal violations of the law, which could result in fines or up to six months in jail. None of the plaintiffs have ever been charged with or indicted for violating the Open Meetings Act.

The court found that, contrary to the claims of the plaintiffs, the act does not suppress speech. Rather, the court said that "free discussion is suppressed when city council members close their meetings to the public." While council members do have free speech rights, the Open Meetings Act is a disclosure law and is not a content-based restriction on speech, the court held. "Public officials are allowed to talk about any topic they please; they are only required to disclose what occurred at closed meetings at subsequent open meetings."

The court held that the law is content-neutral -- that is, it does not restrict speech based on the content or subject matter -- and, therefore, the court applied an "intermediate scrutiny" analysis of the case to determine whether the law was unconstitutional. Under intermediate scrutiny, the government need only show a substantial government interest that would be achieved "less effectively without the restriction."

In applying that analysis, the court held that the act "leaves open all channels of communication for council members to be heard" and said there are avenues for correction or mitigation for council members to use to avoid criminal charges. For example, as long as members who conducted a meeting in secret subsequently hold an open meeting to discuss what occurred at the closed meeting, there is no Open Meetings Act violation.

The court also held that there are three compelling government interests that the Open Meetings Act serves: It promotes transparency in the government's decision-making process; it helps prevent fraud and corruption; and it fosters trust in the government. The act is the least restrictive means of achieving these interests because it does not restrict council members speech and there are sufficient avenues for council members to avoid prosecution if they do violate the act, the court held.

As such, the court also held that if a "strict scrutiny" analysis was applied -- requiring a compelling government interest and a narrow tailoring of the law -- the Open Meetings Act would also survive this analysis. It also dismissed the claims that the law is vague or overbroad, finding that the law clearly states what is allowed, and what is not, and does not infringe on constitutionally-protected speech, holding "[g]overnmental bodies have no First Amendment right to conduct public business behind closed doors."

Texas Attorney General Greg Abbott, who defended the Open Meetings Act in the case, said the ruling is "a great victory for democracy and the First Amendment." Government transparency, is "a First Amendment virtue, not a First Amendment violation. [The ruling] guarantees the public will continue to have access to information about how their government works."

Friday's decision adds another chapter to a series of cases that have been in the federal court system for nearly six years and at one point included city officials and five cities as plaintiffs.

The original case, decided by the U.S. District Court for the Western District of Texas in 2006, was brought by city officials of Alpine, Texas, after they were indicted on criminal charges for violating the Open Meetings Act . The court held that the law did not violate their First Amendment rights as it was not unconstitutionally overbroad or vague. The decision was appealed to the U.S. Court of Appeals in New Orleans (5th Cir.) , which held that the the lower court erred in its findings and that the law should be examined under a strict scrutiny analysis. As a result of this decision, the lower court's decision was reversed and the case was sent back to the district court.

However, the Fifth Circuit's decision was vacated by the court's full panel of judges when it granted a petition for en banc review, a review by the full circuit court. Before the case could be reheard on the merits by the full panel, the Fifth Circuit dismissed the case in September 2009, finding that because the plaintiffs were no longer city officials, they no longer had standing to bring the case. The case was then refiled in the federal district court with new plaintiffs.

In July 2010, the district court removed the cities of Apline, Pflugerville, Rockport, Big Lake and Wichita Falls as plaintiffs, holding that, as creatures of the state, the cities cannot sue the state, have no First Amendment rights and are not, themselves, subject to the Open Meetings Act. A bench trial was held in November 2010, with the individual officials from the various Texas cities remaining as plaintiffs.

Houston attorney Dick DeGuerin, attorney for the plaintiffs, said he "respectfully disagrees" with Friday's decision. "The Fifth Circuit said TOMA [the Texas Open Meetings Act] was unconstitutional, that it did not pass the strict scrutiny test," DeGuerin said. "None of the facts have changed, the law hasn't changed." (The appellate court in fact held that the strict scrutiny test must be used, but sent the case back to the district court to apply that test.)

DeGuerin said the plaintiffs will appeal to the Fifth Circuit: "No question about it."