On September 25, a three-judge panel of the federal Fifth Circuit Court of Appeals issued the much-anticipated opinion in Diana Asgeirsson v. Greg Abbott and the State of Texas.  The case is commonly referred to as “TOMA II,” and 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 on their right to freedom of speech.

In short, the city officials lost.  The trial court had previously ruled that the Act is – in legal terms – a valid “time, place, and manner restriction.”  In other words, the trial court concluded that the Act does not limit what city officials can say (i.e., the content of their speech), but merely limits when and where they can say it (e.g., at a properly-posted open meeting). 

The Fifth Circuit upheld the trial court’s ruling, but it relied on an entirely different body of law to do so.  Oddly, the court analogized the Act to regulations that govern the operation of sexually oriented business.

In a seminal 1986 United States Supreme Court decision, Renton v. Playtime Theaters, the Court upheld a zoning ordinance that was facially content-based because it regulated only theaters showing sexually explicit material. The Court reasoned that the regulation was content-neutral because it was not aimed at suppressing the erotic message of the speech but instead at “secondary effects,” such as crime and lowered property values, that tend to accompany such theaters.  In other words, the Court concluded that a regulation is not content-based merely because the applicability of the regulation depends on the content of the speech.  A statute that appears content-based on its face may still be deemed content neutral if it is justified without regard to the content of the speech.

The Fifth Circuit applied the same logic to the Act.  It held that – even though the Act applies only to speech that relates to public business (i.e., it is “facially content-based”) – it is aimed at prohibiting the 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. Those justifications are unrelated to the messages or ideas that are likely to be expressed in closed meetings.

The court held that, if a quorum of a governing body were to meet in secret and discuss knitting or other topics unrelated to their powers as a governing body, no harm would occur.  That situation is analogous to Playtime Theaters, in which adult movie theaters attracted crime and lowered property values, but not because the ideas or messages expressed in adult movies caused crime.

Of particular interest to city officials is footnote 15 in the opinion.  That footnote cites the amicus curiae brief submitted by TML, the South Dakota Municipal League, the National League of Cities, and the International Municipal Lawyers Association:

In its brief as amicus curiae, the Texas Municipal League offers other situations in which TOMA arguably could prohibit constitutionally-protected speech. For example, amicus mentions a situation in which a city council member is prohibited from attending a civic event at which a fellow member who is running for re-election will be speaking about public-policy issues. Amicus argues that that is prohibited, because it is a quorum discussing government policy at an event not open to the general public.

The potential situations listed, however, are not from actual cases but are only examples of advice attorneys have given to local government officials. Furthermore, such broad interpretations of the law are suspect, given that TOMA appears to exclude such gatherings from its definition of “meeting”:
[“Meeting”] does not include the gathering of a quorum of a governmental body at a social function unrelated to the public business that is conducted by the body, or the attendance by a quorum of a governmental body at a regional, state, or national convention or workshop, ceremonial event, or press conference, if formal action is not taken and any discussion of public business is incidental to the social function, convention, workshop, ceremonial event, or press conference.

“Broad interpretations” by municipal attorneys in Texas are absolutely essential in advising city officials whether they may be in violation of the Act.  While the footnote could be used to defend against prosecution, it doesn’t change the opinion of League staff that city officials should exercise extreme caution at any event in which a quorum of the city council is present and public business is being discussed.  That’s because once a closed meeting is held, by accident or otherwise, the elements of the crime have been met.  A public official is then subject to criminal prosecution, period. 

The court’s opinion neglects to take into account the broad interpretations of the Act by the attorney general and some prosecutors.  The court’s dismissal of their concerns will likely be little consolation to city councilmembers who still scratch their heads over how to conduct city business without running afoul of the Act. 

It is likely the opinion will be appealed.  That could take the form of a request for a rehearing en banc (by the entire court instead of a three-judge panel) or an appeal directly to the U.S. Supreme Court. 

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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