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Court: Criminal sanctions in Texas open meetings law do not violate First Amendment

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A Texas law that permits the imposition of criminal sanctions against elected officials who meet in secret does not violate…

A Texas law that permits the imposition of criminal sanctions against elected officials who meet in secret does not violate the First Amendment, a federal appeals court ruled on Tuesday.

The U.S. Court of Appeals in New Orleans (5th Cir.) ruled in Asgeirsson v. Abbott that although the criminal sanction provisions of the Texas Open Meetings Act may at times implicate the free speech rights of officials, its requirement that such discussions take place publicly does not violate the First Amendment.

Rather, the criminal provisions are designed to increase government transparency, cut down on public corruption, and foster confidence in government by prohibiting private speech about government business. In so ruling, the appellate court upheld a trial court’s decision that the law was content neutral.

“The prohibition in (the law) is applicable only to private forums and is designed to encourage public discussion,” the court wrote.

The appellate court’s decision has been anticipated because of its potential influence on the interpretation of other state’s open meetings laws, many of which are similarly designed to discourage officials from conducting government business in secret. Besides Texas, 20 other states have open meetings laws that include criminal sanctions for violations.

The case began when members of the city council of Alpine, Texas sued in federal court, arguing that the criminal provisions restricted what they could say as elected officials by requiring that speech about public business be conducted in the open.

The court on Tuesday dismissed the argument, ruling that the Texas open meetings law merely triggers public disclosure when the speech involves government business rather than limiting what officials can say.

“If a quorum of a governing body were to meet in secret and discuss knitting or other topics unrelated to their powers as a governing body, no harm would occur,” the court wrote.

The court also ruled that the Texas law was similar in many ways to campaign finance laws that require disclosures by donors under penalty of fines or prison time.

“To enforce a disclosure requirement of certain speech, the government must have the ability to punish its nondisclosure,” the court wrote. “If there were no punishment for nondisclosure, the speaker would have no incentive to disclose.”

The court also turned aside an argument made by the council members that the law was vague and unenforceable because it has complex requirements regarding when meetings must be made public.

“A great deal of training may be required to predict the interpretation of the tax code, for example, but that is not because it is standardless or arbitrary,” the court wrote. “In fact, the vast body of law that cause (the Texas open meetings law) to be so complex arguably makes it less vague by providing necessary standards.”

William “Mick” McKamie, the attorney for the city council members, said that he was encouraged by parts of the decision. Although he was still reviewing the opinion, McKamie said that his clients would likely ask that the entire federal appeals court to re-hear the case in what is known as en banc review.

“The penalty provision that provides for jail time clearly is unconstitutional and will ultimately be held so,” he said.

Regardless of whether the city council members appeal, the issue is unlikely to disappear anytime soon. Earlier this year, the Arkansas Supreme Court agreed to hear a similar challenge to its open meetings law after a lower court ruled that the criminal sanctions infringed on the free speech rights of elected officials.

The Reporters Committee for Freedom of the Press wrote friend-of-the-court briefs in both the Texas and Arkansas open meetings law cases that supported the view that the criminal sanctions contained in the laws were constitutional. Twenty-five other news organizations and media companies signed onto the brief filed in the Texas case.

Related Reporters Committee resources:

· Texas – Open Government Guide: Open Meetings