Do mayors and city councilmembers lose their First Amendment rights when they take office?  That question is now ripe for a decision by a federal appeals court. 

Last year, the plaintiffs in a case challenging the constitutionality of the criminal penalty in the Texas Open Meetings Act appealed to the United States Court of Appeals for the Fifth Circuit.  The case is styled Diana Asgeirsson v. Greg Abbott and the State of Texas and is commonly referred to as “TOMA II.” It is the second challenge brought by several city councilmembers, who argue that the criminal closed meeting provision of the Act unconstitutionally infringes on their right to freedom of speech. 

Oral arguments were heard on Thursday, April 5, 2012, in Houston.  A three-judge panel asked numerous questions of both sides, including whether the Act merely limits the time and place in which elected officials speak, or whether it actually prohibits them from speaking.  (The case will ultimately turn on whether the judges believe that the Act limits the content of an elected official’s speech or whether it merely regulates when and where the speech occurs.)

In addition, one judge noted that every state has an open meetings law, and that this is the first challenge of its type.  The plaintiffs responded that most states do not include jail time as a punishment for speech, as Texas does.  

A decision is expected later this year, and will likely be appealed to the U.S. Supreme Court by the losing party.

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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