Open meetings law may be unconstitutional, court rules

Hannah Bergman | Freedom of Information | Feature | April 30, 2009

In an opinion that could call into question the constitutionality of open meetings laws everywhere, a federal appellate court held Monday that the Texas Open Meetings law must pass a heightened constitutional test under the First Amendment.

In a relatively brief opinion, the U.S. Court of Appeals in New Orleans (5th Cir.) held that elected officials have First Amendment rights to speak to each other in private. As a result, open meetings laws that prohibit private speech between elected officials have to pass stringent constitutional muster, the court said.

The case centers on two city council members who were prosecuted for violating the law by privately e-mailing each other. Their alleged crime was “acting as a quorum in exchanging private emails discussing whether to call a council meeting to consider a public contract matter,” according to the court.

The district attorney eventually dropped the charges in the case, but the council members argued in federal court that the law violated their First Amendment rights.

The trial court found that as elected officials, the council members' speech was not protected by the First Amendment. The appellate court found otherwise. 

“The Supreme Court’s decisions demonstrate that the First Amendment’s protection of elected officials’ speech is robust and no less strenuous than that afforded to the speech of citizens in general,” Judge James Dennis wrote for the three-judge panel.

The unanimous appellate court then sent the case back to the trial court for review. It said the trial court had not properly considered whether the statute was constitutional under the “strict scrutiny” standard, and that it should do so now.

That standard requires that, if it will interfere with protected speech, a regulation must be narrowly tailored to advance a substantial government interest. Few laws are upheld as constitutional under this test.

However, the court said that determination in this case must first be made by the federal trial court.

The Texas attorney general’s office was a defendant in the council members' lawsuit. A spokesman for the office said: “We are evaluating our options on further appeal,” and for now the law remains in effect. The court's ruling, if allowed to stand, could lead to challenges of open meetings laws in other states as well.

Within the Fifth Circuit, where the opinion is now controlling federal law, it could cast immediate doubt on state open meetings laws in Texas, Mississippi and Louisiana.

The Freedom of Foundation of Texas filed a friend-of-the-court brief in the case. After seeing the ruling, board member Joe Larsen said, "We continue to believe that the Texas Open Meetings Act is constitutional, that it will pass the strict scrutiny test required by the Fifth Circuit,  if and when, it goes back to the district court."

But Wanda Cash, a journalism professor at the University of Texas in Austin, said the open meetings and open records laws should be updated to incorporate how we now use technology like e-mail, which got the council members in trouble in the first place. 

"Updating the Public Information Act in Texas and the Open Meetings Act will help clear up some of the ambiguity about speech and the parameters in which public officials should operate," Cash said.

The idea that the council members' First Amendment rights were violated by the open meetings law, she said, is "just nuts. At best, that's twisted logic."

She added, "They have the right to say whatever they want -- of course their free speech right trumps it. But they have to speak  within the bounds of the law they swear to uphold as elected officials of Texas."