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Texas Open Meetings Act does not unconstitutionally restrain government officials’ speech, Reporters Committee argues

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  1. First Amendment

Washington, D.C. — The Framers of the U.S. Constitution did not intend the First Amendment to protect government officials’ ability to meet in secret, the Reporters Committee for Freedom of the Press argued in a friend-of-the-court brief filed today in the U.S. Court of Appeals for the Fifth Circuit.

The Reporters Committee, along with 25 media organizations, filed the brief in support of provisions in the Texas Open Meetings Act (TOMA) allowing for criminal sanctions against public officials who knowingly hold meetings out of the public eye. Earlier this year, a lower court turned back an effort by Texas city officials challenging the law’s criminal penalties on the grounds that they violated their First Amendment rights.

Citing the works of John Adams, Alexis de Tocqueville, Thomas Jefferson and James Madison, the Reporters Committee brief noted that “the First Amendment was never intended to be used as a means to strike down laws designed to foster government transparency.”

“The framers believed a central requirement of self-governance was allowing citizens to monitor the conduct of their leaders, developing policies that recognized such rights and later enshrining them in state constitutions. TOMA and similar open meetings statutes in every state and the District of Columbia seek to realize the promise of transparency and accountability that the framers embraced,” the brief argued.

The brief further argues that open meetings laws are nothing more than reasonable time, place and manner restrictions that raise no constitutional concerns, as such laws never actually regulate the content of government officials’ speech.

“The notion that ensuring public officials meet in public somehow violates their First Amendment rights is nonsense,” said Reporters Committee Executive Director Lucy A. Dalglish. “The law does not restrict what officials can say or to whom they can say it. This is a very narrowly tailored, content-neutral restriction designed to promote government’s interest in openness.

“Challenges to similar laws in other states — and even to TOMA several years ago — were all found to limit only the timing of public officials’ speech, not the content,” Dalglish added. “The fact that the Texas law has some teeth to it, by way of criminal sanctions for purposeful violations, can only help ensure that government business in Texas doesn’t happen behind closed doors.”

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.