Tories-gagged OPEN MEETINGS/FREE SPEECH -- A federal appellate court held Monday that the Texas Open Meetings law may infringe officials' free speech rights to communicate with one another privately, reports the Reporters Committee for Freedom of the Press.

In a relatively brief opinion, the U.S. Court of Appeals in New Orleans (5th Cir.) held that elected officials have First Amendment rights to speak to each other in private. As a result, open meetings laws that prohibit private speech between elected officials have to pass stringent constitutional muster, the court said.

The case centers on two city council members who were prosecuted for violating the law by privately e-mailing each other. Their alleged crime was “acting as a quorum in exchanging private emails discussing whether to call a council meeting to consider a public contract matter,” according to the court.

The district attorney eventually dropped the charges in the case, but the council members argued in federal court that the law violated their First Amendment rights.

The trial court found that as elected officials, the council members' speech was not protected by the First Amendment. The appellate court found otherwise.

“The Supreme Court’s decisions demonstrate that the First Amendment’s protection of elected officials’ speech is robust and no less strenuous than that afforded to the speech of citizens in general,” Judge James Dennis wrote for the three-judge panel.

The unanimous appellate court then sent the case back to the trial court for review. It said the trial court had not properly considered whether the statute was constitutional under the “strict scrutiny” standard, and that it should do so now.

That standard requires that, if it will interfere with protected speech, a regulation must be narrowly tailored to advance a substantial government interest. Few laws are upheld as constitutional under this test.

However, the court said that determination in this case must first be made by the federal trial court.

The Texas attorney general’s office was a defendant in the council members' lawsuit. A spokesman for the office said: “We are evaluating our options on further appeal,” and for now the law remains in effect. The court's ruling, if allowed to stand, could lead to challenges of open meetings laws in other states as well.

Maybe, but rules prohibiting officials (with some exceptions) from having secret discussions on public issues they are elected to decide are likely to withstand strict scrutiny, once it is noticed that the precedents the court here relies on are about restricting public speech—communicating openly to the community at large.  Californians who take an oath to uphold the law as a condition of taking office on a local board or council make a commitment to abide by the Brown Act, which regulates the time, place and manner of their communications with one another, but makes no topic off-limits for their comments to one another or to the community. 

The Brown Act is moreover undergirded by a state constitutional provision that places, on the same plane of gravity as speech, petition, assembly or privacy, the right of "access to information concerning the conduct of the people's business," dictating that "therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny."

In any event, it's not clear from the few factual specifics in the opinion precisely what got these officials indicted, but it could be a tempest in a teapot. The plaintiffs were two of the four council members—a quorum—that were involved in the e-mail discussion; the other two, says this report, were given immunity for testifying against their colleagues before the grand jury. But if all the four were up to in their e-mail was discussing whether to put something on the agenda for a public meeting, one strains to see the big deal. Doing this is a lawful process in California when deciding whether to call a special meeting—one held at a different time or place from the routine meeting calendar.  The Brown Act says this decision can be made by either the presiding officer or a majority of the body. 

Government Code Section 54956. A special meeting may be called at any time by the presiding officer of the legislative body of a local agency, or by a majority of the members of the legislative body, by delivering written notice to each member of the legislative body and to each local newspaper of general circulation and radio or television station requesting notice in writing.

Obviously a majority's discussion whether to call a special meeting not only needn't (see emphasized language) but couldn't be confined to an open meeting, because that would lead to an infinite regress: special meetings called to decide whether to call special meetings called to decide . . . The notion that elected officials could be indicted for this use of e-mail shows how zealously transparency-minded Texas prosecutors and grand juries can be—and maybe how shortsighted is their legislature for setting this kind of trap in the first place.