OPEN MEETINGS — The Reporters Committee for Freedom of the Press reports it yesterday filed an amicus curiae brief urging the entire 5th U.S. Circuit Court of Appeals to uphold the constitutionality of the Texas Open Meetings Act which, In an unprecedented decision earlier this year, a three-judge panel of that court found to violate the First Amendment rights of certain elected officials to discuss public business in secret.

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."

As noted here earlier, California's open meeting laws, including the Brown Act, should not be threatened by this kind of decision because

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."