On December 21, 2012, the ongoing lawsuit commonly referred to as “TOMA II” headed for the U.S. Supreme Court.  TOMA II is the second challenge brought by several city councilmembers who claim that the criminal closed meeting provision of the Texas Open Meetings Act (Act) unconstitutionally infringes upon their right to freedom of speech.  After the trial court rejected the city officials’ claim, they appealed to the U.S. Court of Appeals for the Fifth Circuit.

In September 2012, the Fifth Circuit Court of Appeals held that the Act is constitutional because it is aimed at prohibiting the negative “secondary effects” of closed meetings.  According to the court, closed meetings: (1) prevent transparency; (2) encourage fraud and corruption; and (3) foster mistrust in government.

TML, along with the National League of Cities and the International Municipal Lawyers Association, will be filing an amicus brief with the Supreme Court.  The brief argues three key points:

  • The various courts that have ruled on the substantive issues raised in this case can agree on almost nothing, leaving tens of thousands of Texas officials in a state of confusion as to how to comply with the Act.  The decisions conflict in regard to the First Amendment rights of local officials, the standard of review applicable to political speech, and the manner in which the Act operates. 
  • Open meetings laws, like the Act, are content-based restrictions on political speech and are thus subject to strict scrutiny.  The Fifth Circuit incorrectly applies the secondary effects doctrine to the Act.  The secondary effects doctrine affords less protection than strict scrutiny and should not be used in regard to political speech, which is at the heart of the First Amendment.
  • The Fifth Circuit refuses to recognize the reach of the Act and, in doing so, fails to protect the core function of public officers—engaging in political speech.  Under the Act, a local official can be held strictly liable for a crime by attending a candidate forum.  That fact alone shows that Section 551.144 is unconstitutionally overbroad.

Essentially, the amicus brief argues that local officials in Texas and across this country need the Court to clarify the appropriate balance between governmental transparency and the First Amendment rights of local officials.  Updates will be provided as they become available. 

TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League.

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