AP Photo/The Galveston County Daily News, Jennifer Reynolds
Although a federal appellate court in September ruled that the criminal sanctions provisions of the Texas Open Meetings Act do not violate the First Amendment, a group of public officials plans to continue its effort to strike down the law — even if it means taking their case to the U.S. Supreme Court.
In Asgeirsson v. Abbott, the U.S. Court of Appeals in New Orleans (5th Cir.) ruled that the criminal provisions of the Texas Open Meetings Act do not violate the free speech rights of public officials, even if it requires that they discuss government business in public.
Open government advocates hailed the three-judge panel’s decision as a victory in what has become a years-long court battle over the Texas law’s constitutionality.
But despite the ruling, an attorney for the group of public officials pursuing the case said that his clients continue to believe that the use of criminal sanctions, including fines and jail time, to enforce violations of the Texas Open Meetings Act violates their free speech rights.
“We’re going to go up on appeal,” said the group’s lawyer, William “Mick” McKamie. “It’s just a question of whether we will seek further review in the Fifth Circuit or the Supreme Court.”
The decision to appeal the case or at least ask the entire Fifth Circuit to rehear it — coupled with a pending similar challenge to criminal provisions in Arkansas’ open meetings law — suggests that the issue has not been put to rest, even as 20 states besides Texas use criminal sanctions to enforce their open meetings laws.
The Fifth Circuit’s unanimous ruling that the Texas Open Meeting Act’s criminal sanctions do not violate the First Amendment rested on two legal conclusions. The first was that the law does not target the content of elected officials’ speech and is a reasonable restriction in light of its transparency goal. The second was that the law is similar to campaign finance disclosure laws that also affect free speech. The court also found that the law is not vague or overbroad.
After deciding that the law does not regulate the content of what elected officials say, the court ruled that the law is reasonable because it opens up government decisions to public scrutiny.
“Here, the statute does not apply to government officials because of any hostility to their views,” the court said. “Rather, only private speech by government officials lessens government transparency, facilitates corruption, and reduces confidence in government.”
In its second conclusion, the court relied on the U.S. Supreme Court’s 2010 decision in Citizens United v. Federal Elections Commission, which upheld those portions of the Bipartisan Campaign Reform Act requiring political advertisements to contain disclaimers indicating who paid for them.
The Fifth Circuit said Texas’ open meetings law is similar to the law in Citizens United because it also burdens speech by requiring disclosure, though the impact of the regulation is outweighed by the benefit of having the discussions take place in public. The criminal sanctions in the Texas law thus do not violate the First Amendment, the court ruled.
“To enforce a disclosure requirement of certain speech, the government must have the ability to punish its nondisclosure,” it said. “If there were no punishment for nondisclosure, the speaker would have no incentive to disclose until the enforcer of the statute prosecuted him or obtained an injunction.”
The court also dismissed the elected officials’ argument that they have a constitutional right to speak about government business in private. Instead, the court reviewed a number of Supreme Court cases that have ruled that the First Amendment provides a right of public access to court proceedings.
The public officials “offer no support for that proposition, and there is reason to think that the First Amendment does not protect the right of government officials to deliberate in private, given that it sometimes requires them to open their proceedings to the public,” the court said. “It makes little sense for the First Amendment to require states to open their criminal proceedings while prohibiting them from doing so with their policymaking proceedings.”
Joe Larsen, attorney for the Freedom of Information Foundation of Texas, said he was pleased to see the court rely on cases holding that the First Amendment requires access to public proceedings. The organization filed a friend-of-the-court brief in the case arguing that the elected officials’ interpretation of the First Amendment did not make sense.
“They were basically turning the First Amendment on its head because the First Amendment requires access; it doesn’t limit access,” Larsen said.
The effect on other state open meetings laws
Where transparency advocates such as Larsen see a strong court ruling upholding the legality of the criminal provisions of the Texas Open Meetings Act, McKamie sees ample grounds for appeal.
First, McKamie said, his clients believe that the law does target the content of elected officials’ speech because it prevents them from talking about government business.
Because officials’ speech is limited in that way, McKamie plans to argue that the criminal provisions are subject to strict scrutiny, a higher standard of review under the First Amendment. To be constitutional, laws that restrict speech based on its content must pursue a compelling governmental interest by the least restrictive means possible. Few laws survive strict scrutiny review by courts.
Additionally, McKamie takes issue with the conclusion that the Texas Open Meetings Act is similar to a campaign finance disclosure statute. With campaign finance disclosure law violations, criminal liability attaches not when the ad is created but rather when it fails to disclose who paid for it.
This is unlike the criminal sanctions in the Texas Open Meetings Act, McKamie said, because criminal liability can be triggered as soon as officials begin discussing government business.
“The elements of a crime exist upon saying the words,” McKamie said.
McKamie’s clients are not the only public officials who believe criminal provisions in open meetings laws are unconstitutional. In October 2011, city officials in Arkansas successfully argued that the misdemeanor penalty provisions of the state’s open meetings law were unconstitutional.
The officials in that case, McCutchen v. City of Fort Smith, raised similar arguments as those in the Texas case.
The state attorney general and a local lawyer who initiated the lawsuit alleging violation of the state’s open meetings law appealed the decision to the state Supreme Court, which is scheduled to hear oral arguments in the case later this year.
Beyond their punitive nature, the criminal sanctions provide an incentive for elected officials to comply with the law and conduct government business in the open, said Keith Elkins, director of the Freedom of Information Foundation of Texas.
“With any action, if there’s not a consequence for that action then there’s not any reason to hesitate,” he said.
Based on research conducted by his organization, Elkins said he is unaware of anyone who has been jailed as a result of violating the Texas Open Meetings Act. To Elkins, that signals that the law is working, not that it is unconstitutional.
“There’s enough of a potential consequence that officials have followed the law,” he said. “The law hasn’t changed in four decades, so I find it incredulous that officials now are claiming that the law violates the First Amendment.”
If the Arkansas Supreme Court agrees with the lower court’s opinion or the entire Fifth Circuit or U.S. Supreme Court decides to hear the Texas case, efforts by transparency groups to enforce open meetings laws could be undercut, Elkins said.
“I think that if you take the teeth out of the law, there is certainly much less reason to follow the law without a consequence,” he said.
The lengthy legal battle
Larsen said he hopes that the Fifth Circuit’s decision is the final word on whether the Texas Open Meetings Act is constitutional, as the issue has been litigated in federal court since 2006.
Prior to the Asgeirsson case, two city council members in Alpine, Texas, brought a suit similarly alleging that the law violated their free speech rights.
The trial court ruled in Rangra v. Brown that the law did not violate the First Amendment, and the elected officials appealed to the Fifth Circuit. The three-judge panel in that case reversed the trial court’s decision and ordered it to review the law under strict scrutiny, believing that the Texas Open Meetings Act did target the content of officials’ speech.
Fearing that strict scrutiny review would imperil the criminal provisions of the statute, the district attorney defending the law asked the entire Fifth Circuit to review the three-judge panel’s decision.
The entire court agreed to hear the case but before it could do so, it determined that the case was moot because the city council members who brought the suit were no longer in office. The court then vacated the three-judge panel’s initial decision, which meant that it was no longer recognized as good law.
The case was revived in 2009 when more than 20 elected officials from a dozen cities across Texas and the cities themselves filed suit again in Asgeirsson. The trial court later dismissed the cities as plaintiffs, ruling that as subdivisions of the state, they could not sue the state itself. The case then proceeded with only the city council members as plaintiffs.
“My honest assessment is that this is the end of the line,” Larsen said. “The court really focused like a laser where it needed to, and I don’t see where the opinion is flawed.”
Under court deadlines, the council members have until early November to ask the entire Fifth Circuit to rehear the case and until late December to ask the Supreme Court to hear it.
The Reporters Committee for Freedom of the Press filed friend-of-the-court briefs in both the Texas and Arkansas cases, arguing that the criminal sanctions contained in the open meetings laws are constitutional. Twenty-five news media organizations, nonprofit associations representing journalists and trade groups joined the brief filed in the Texas case.