From the Summer 2009 issue of The News Media & The Law, page 20.
The e-mail messages were mundane enough: Should the city hire this engineer? Where will the money for the water project come from? When should the next city council meeting be?
But the electronic exchanges, between four of five city council members in Alpine, Texas constituted several very basic acts of governing a city, so they fall within the scope of the state Open Meetings Act. They have also become the subject of significant litigation on the constitutional validity of these types of laws, as two council members say the way the meetings law interferes with their speech is unconstitutional.
States rally against an unexpected decision
Avinash Rangra and Anna Monclova, two of the city council members involved in the exchanges, were subject to criminal indictments for allegedly violating the law in 2005.
Texas is in the minority of states that have criminal penalties for violations of its open meetings laws.
Local prosecutors eventually dropped the charges, but Rangra and Monclova challenged the open meetings statute in federal court in Texas.
The two council members argued that the statute violated their First Amendment rights to speak. The state of Texas defended the law. Rangra and Monclova won at the U.S. District Court and won again on appeal in the U.S. Court of Appeals in New Orleans (5th Cir.).
But Texas asked a full panel of the court to rehear the case. The city council members filed the same request, pressing the judges to rehear the case and resolve all of the issues rather than send the case back to the trial court.
More than a dozen other states and the Reporters Committee for Freedom of the Press took Texas’s side in friend-of-the-court briefs in support of the request for reconsideration. They argued that the open meetings law does not infringe on speech, but instead limits government action, and in fact protects constitutional rights on its own.
The full court decided to hear the case. For now, the three-judge panel’s decision is stayed, but if the full court upholds it, the opinion could have far-reaching implications for open meetings laws across the country.
Examining the ruling
The appellate panel held that the statute was a content-based restriction on speech. For the Texas law to be constitutionally valid it therefore had to pass the most stringent of constitutional standards, strict scrutiny, which requires a statute be very narrowly written and serve a compelling government interest. The court did not say whether the statute would actually survive this test, saving that question for the finder of facts.
The effects of the unprecedented decision on open meetings laws throughout the country could be immense, and in part for that reason both sides asked the full court of appeals to rehear the case.
In its friend-of-the-court brief, the Reporters Committee pointed out that the court’s decision could mean challenges to open meetings laws well beyond Texas. Resolving each of those court challenges could take years and present significant obstacles for reporters — and citizens concerned about open and accountable government — who want to ensure local officials are abiding by the statutes.
Texas wrote in its brief asking for rehearing, “Notably, every State in the Union, the District of Columbia, and the federal government have enacted open government statutes similar to Texas’ statute.”
The state continued, “Until the panel’s ruling, no court had ever held that any of these statutes is a content-based restriction on speech subject to strict-scrutiny review under the First Amendment, nor have these statutes been struck down — in whole or in part — for violating the Amendment’s free speech protections.”
It is rare for any statute to pass that level of review, and Texas’s criminal penalties could make it more difficult for the statute to pass muster.
But some First Amendment experts say they aren’t worried that the Texas statute would fail, even if strict scrutiny were determined to be the appropriate test for courts to apply.
“Even if strict scrutiny is applied, there may well be a compelling interest in having these penalties for the open meetings law” violations, said David Hudson, a scholar at the First Amendment Center in Nashville.
The concern for the states that supported Texas and for the Reporters Committee is the idea that strict scrutiny is the appropriate standard to apply at all.
In their friend-of-the-court brief led by Louisiana, the states said the court’s decision “reasons that an open meetings law makes a ‘content-based’ speech restriction — thus meriting strict scrutiny — by regulating communications according to ‘whether the content of [public officials’] speech refers to ‘public business or public policy over which the governmental body has supervision or control.’”
“But that broad rationale encompasses virtually any State’s open meetings law,” the brief continued. “The heart and soul of an open meetings law is to channel government officials’ communications primarily by subject matter. Consequently, the unprecedented level of constitutional scrutiny the panel decision prescribes would impact the central function of any open meetings law, and not only the particular application at issue in Rangra.”
However, Rangra and Monclova’s legal brief to the court said that open meetings statutes restrict their ability to speak based on what they want to say. While acceptable in limited situations involving government employees, that is not an acceptable restriction on elected officials, they contend, even though council members are paid a salary.
Rather than engaging in the less protected employee speech, the city council members are engaging in the more protected political speech, they argue.
“Speech on public issues is protected unless one is an employee whose speech is at the behest of the public employer, is part and parcel of the employment, and results in a product that is itself government speech,” the city council members argued.
“That test by its own terms excluded elected office holders — they have no mandated speech at the behest of their employers and, until the body acts as a body, their positions do not constitute the government’s speech. . . . The communication of an elected official is political speech since the official’s duty is to advocate for his constituents,” they continued.
The Reporters Committee’s brief said that the Texas open meetings law should be analyzed in the context of all that the First Amendment guarantees.
“The First Amendment protects not only speech, but also, as is relevant in this case, freedom of assembly, freedom of the press, and the right to petition the government. Open government laws in general, and the Texas statute at issue here, are the statutory guarantees that allow citizens to exercise their First Amendment rights in a meaningful way,” the brief said.
Open meeting laws, the brief continued, are the statutory embodiment of the modern right to petition the government.
“To call into question the constitutionality of the Texas Open Meetings Act and to subject it to the highest form of constitutional scrutiny by mischaracterizing it as a restriction on the speech of elected officials could potentially have a disastrous impact upon the public’s right to access, observe, and criticize their government officials,” the brief concluded.
The full court will review the parties’ briefs and likely hear arguments in the fall.