The Reporters Committee for Freedom of the Press today urged the entire 5th U.S. Circuit Court of Appeals to uphold the constitutionality of the Texas Open Meetings Act.
In a first-of-its-kind decision earlier this year, a three-judge panel of that court found that because the law restricted certain elected officials from communicating about public business in secret, it violated their First Amendment rights. The Reporters Committee’s friend-of-the-court brief, joined by 23 other news media organizations, pointed out to the court that open meetings laws like the one in Texas are actually further the First Amendment rights of citizens by assuirng they have access to and oversight of decisions made by elected officials.
"The 5th Circuit panel’s decision literally turned open government on its head," said Reporters Committee Executive Director Lucy A. Dalglish. "When someone makes a decision to run for office, they implicitly agree to subject themselves to laws that require them to transact the public’s business in open meetings."
The case began when two former city councilors in Alpine, Tex., exchanged e-mail messages discussing city business. They were indicted under criminal provisions in the open meetings law that prohibit such communication and though the charges were later dropped, they filed a lawsuit charging that the Texas Open Meetings Act unconstitutionallly violated their rights to free speech.
The federal court in Midland, Tex., ruled that the law met the appropriate constitutional standards, but on appeal, a panel of the Fifth Circuit applied a much more restrictive legal standard and found the the law to be potentially unconstitutional. The full Fifth Circuit will now decide whether the law can stand as-is. Should the law be stricken, elected officials could operate in secret with no public oversight or accountability — completely counter to the notion of democracy, the Reporters Committee argued.
"Open meetings laws like the Texas statute exist to further the goals of a democracy by promoting the First Amendment values of open government, public debate, petition and assembly. 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 said. "The First Amendment does not protect the right of elected officials to take action in secret."
ABC, Inc., the American Society of News Editors, The Associated Press, the Association of Alternative Newsweeklies, the Association of Capitol Reporters and Editors, Bloomberg News, the E.W. Scripps Company, the Hearst Corporation, MediaNews Group, the National Press Club, the New York Times Company, the Newspaper Association of America, Newsweek, Inc., the Radio-Television News Directors Association, Reuters America LLC, the Society of Professional Journalists, Stephens Media LLC, the Student Press Law Center, the Texas Association of Broadcasters, the Texas Daily Newspaper Association, the Texas Press Association, the Tribune Company and the Washington Post all joined in the brief.
The Reporter’s Committee’s friend-of-the-court brief can be found here.