Indeed, 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. Further, the [U.S. Supreme] Court reaffirmed that “[t]he role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.”

-U.S. Court of Appeals for the 5th Circuit

On April 24, 2009, the U.S. Court of Appeals for the Fifth Circuit released its long-awaited opinion in the City of Alpine Open Meetings Act lawsuit (Avinash Rangra, Anna Monclova, and All Other Public Officials in Texas v. Frank D. Brown, 83rd Judicial District Attorney, and the State of Texas).

The question presented in the appeal was whether the speech of local government officials made pursuant to their official duties has the same constitutional protections that the First Amendment to the U.S. Constitution grants to other types of speech. The Fifth Circuit did not directly answer that question, but rather returned the case to the trial court for further proceedings. That action is significant because the legal standard of review imposed by the Fifth Circuit presents a very high hurdle for the government to overcome. Essentially, the state must now prove that the criminal provision of the Open Meetings Act is not unconstitutional.

What started the lawsuit? A city councilmember in Alpine sent an e-mail to four other councilmembers asking whether they felt that a particular item should be placed on a future agenda. The following day, one of the four councilmembers responded to the first e-mail, stating that she agreed that the item was relevant and should be discussed. Later, two of the councilmembers involved in the exchange were criminally indicted by a grand jury under the criminal illegal meeting provision of the Open Meetings Act. The indictments were ultimately dismissed “without prejudice,” meaning the councilmembers could be charged again. Fed up with the tortured interpretations and absurd applications of the Act, two councilmembers sued the district attorney and the State of Texas. They claimed that speech made outside of a council meeting is entitled to the same First Amendment protections as any other speech.

Following a bench trial in 2006, a federal judge concluded that the First Amendment’s protection of elected officials’ speech is limited (just as it is for the speech of public employees). The plaintiffs then appealed to the Fifth Circuit. The question presented in the appeal was whether speech of elected state and local government officials made pursuant to their official duties is less protected by the First Amendment than other speech. While the district court held that the First Amendment affords absolutely no protection to speech by elected officials made pursuant to their official duties, the Fifth Circuit reversed and held that there is a meaningful distinction between the First Amendment’s protection of public employees’ speech and other speech, including that of elected government officials.

The court held that, when a state seeks to restrict the speech of an elected official on the basis of its content, a federal court must apply “strict scrutiny” review. Strict scrutiny review: (1) shifts the burden of proof to the government; (2) requires the government to prove that its action or regulation pursues a compelling state interest; and (3) demands that the government prove that its action or regulation is “narrowly tailored” to further that compelling interest. Because the district court did not apply the required strict scrutiny analysis, the Fifth Circuit reversed the district court’s judgment and remanded the case to the trial court for the performance of that task.

The Fifth Circuit opined that “[w]e agree with the plaintiffs that the criminal provisions of [the Texas Open Meetings Act] TOMA are content-based regulations of speech that require the state to satisfy the strict scrutiny test in order to uphold them.” Section 551.144 of the Open Meetings Act, which criminalizes the discussion of public matters by a quorum of public officials when outside of an open meeting, is “content-based” because whether a quorum of public officials may communicate with each other outside of an open meeting depends on whether the content of their speech refers to “public business or public policy over which the governmental body has supervision or control.”

The court points out, however, that the fact that strict scrutiny applies “says nothing about the ultimate validity of any particular law; that determination is the job of the court applying” that standard.

Neither the Texas Municipal League nor its member city officials are opposed to open government, and we do not favor “backdoor deals in smoke-filled rooms.” What city officials favor is serving their communities without the constant threat of fines and jail time for doing so. It is hoped that the final resolution of this case will give them what they need.

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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