Tuesday, May 12, 2009

Open meetings laws a First Amendment violation?

Here's an unfortunate and potentially devastating new ruling by a 3-judge panel of the 5th Circuit Court of Appeals that deserves to be overturned en banc, via the Chicago Tribune:
Attorneys general from more than a dozen states asked a federal appeals court in New Orleans this week to review a ruling that they warn could cripple their open meetings laws.

A ruling last month by a three-judge panel from the 5th U.S. Circuit Court of Appeals revived a lawsuit that city council members in Alpine, Texas, filed against the local district attorney and state attorney general after two members were charged with violating the state's open meetings law. The council members allegedly violated the law by discussing a city project in an exchange of e-mails. ...

Texas Attorney General Greg Abbott's office says the 5th Circuit's ruling could serve as a precedent for striking down any open meetings law that doesn't pass that test.

"Until the panel's ruling," Abbott's office wrote, "no court had ever held that any of these statutes is a content-based restriction on speech subject to strict-scrutiny review under the First Amendment, nor have these statutes been struck down -- in whole or in part -- for violating the Amendment's free speech protections."

In a court filing Monday, attorneys general for Louisiana and more than a dozen other states joined Abbott in asking for a rehearing by all of the 5th Circuit's judges.

"Subjecting open meetings laws to 'the most stringent review' of strict scrutiny ... is wrong as a matter of precedent and logic," Louisiana Attorney General James "Buddy" Caldwell wrote. "But it would also practically cripple the operation of those laws."


TxBluesMan said...

Free Speech for Me, but Not for Thee...Why shouldn't Rangra have the same rights to free speech as the rest of us?

Gritsforbreakfast said...

Nobody has free speech at their job. His employer can impose restrictions on what he say and do in that role, and in this case his employers are the citizens who elected him.

He's welcome to all the free speech he likes on his own time when he's not conducting the people's business. But when he's spending the taxpayers' money, they have a right to insist deliberations occur in public.

Similarly, police officers do not have a free speech right to question a defendant after they've asked for an attorney. Free speech doesn't mean public servants aren't constrained by the law or accountable to the public.

doran said...

Tx and The 5th Circuit [what a great name for a rock'n roll band] may be on to something here.

If this ruling stands, we will next see a challenge to conspiracy statutes on free speech grounds. That argument has already been made, I'm sure, and dismissed by the Courts, but if the 5th is going to start mucking round in this area, then all such statutes are up for re-argument and new challenges.

So the wise guys around Houston and Dallas will be able to meet at their favorite pizza places and discuss knock-overs and knock-offs, and not be subject to prosecution on conspiracy grounds.

Enlisted men in the Army and Marines and etc. will be able to argue with their officers and non-coms about orders.

Separatists, terrorists, and the boys in the Klan will be able to meet and make plans to achieve their own particular goals in life, without a care for conspiracy prosecutions.

People arrested for DWI will have a right to engage the arresting officer in deep philosophical discussion, and to demand that tapes of the discussion not be used at trial because to do so will have a chilling effect on free speech.

Hell, if Nathan Hecth has the kind of free speech rights under which he can laud a potential judicial appointment, why can't the lawyers in this state publicly refer to Nate as some kind of slimy vermiform, if what the 5th is saying is not reversed?

The Bexar County Commissioners Court can go back to conducting business in the bat roost: There will be no need for time consuming and messy public involvement.

The potential for mischief and litigation is endless.

God! I love this system of government. Never a damned dull moment.

doran said...

Try this link: It should take you to Lawyers, Guns and Money for a post about Georgia's approach to free speech matters. (Seems those guys at L G & M could give the dearly departed Warren Zevon some credit for their blog name.)


Richard Grabman (in a thankfully sane country) said...

I know the parties involved, from my time covering the Alpine City Council for the Marfa Big Bend Sentinel (the largest circulation daily in all of Presidio County!)

While the whole case came down to small town dirty politics at its worst (and most entertaining), Rangra and Katy Elms Lawrence only discussed who would bring up an agenda item at a city council meeting... not any substantive issue. Besides, in a town like Alpine, REAL city business is either done at the Railroad Blues... or when you're picking up your mail at the post office.

Seriously, though. The problem with the Texas open records law is that it is badly written and open to interpretation.

Anonymous said...

You guys have false info on your blog. My email is loupaiz and so is my nickname and also reside in houston and i am not in a street gang nor did i form one please remove "thanks"

Gritsforbreakfast said...

Richard, I disagree with you that the open meetings act is vague, plus the facts you describe don't justify the 5th Circuit's reliance on a "strict scrutiny" standard, which will effectively gut open meetings laws in all 50 states.

louis, I have no idea what you're referencing. Email me with detail (shenson@austin.rr.com) since the complaint appears to not relate to this post.

TxBluesMan said...


First, you might want to actually read the opinion.

First, as the opinion notes:

"The pivotal question presented by this appeal is whether speech of elected state and local government officials made pursuant to their official duties, like speech of non-elected public employees, is less protected by the First Amendment than other speech. The district court held that the First Amendment affords absolutely no protection to speech by elected officials made pursuant to their official duties. We disagree. The First Amendment’s protection of elected officials’ speech is full, robust, and analogous to that afforded citizens in general." Rangra v. Brown, No. 06-51587 (5th Cir., April 2009), slip opinion at p.1.

Second, you mistake the role of the government as an employer instead of the role of the government as a sovereign. They were charging Rangra with a crime based on the content of his speech. That is not an employer's role, and to criminally charge someone for speech, the proper test is strict scrutiny.

Third, there is a distinction between a public employee and an elected public official. The court lays out case after case that protect the Free Speech rights of elected officials and clearly distinguishes the difference between them an employees.

I just think that it is funny that you believe that it is appropriate to restrict their rights...


Why don't you try again - maybe you could write something that is actually on point...

Gritsforbreakfast said...

Bluesy, you've got a weird sense of humor. Also, that graph was quoted in the news article so your link to the opinion is superfluous - it still doesn't justify the "strict scrutiny" standard.

Doran's comment was precisely on point - if the San Antonio City Council, e.g, is free to deliberate on city business outside of their meetings, we've already seen the kind of corruption it engenders. I realize since you make your living defending bad cops, you actually WANT policies that reduce public scrutiny of official acts, but the rest of us prefer non-corrupt, transparent governmental process.

TxBluesMan said...


Doran's post had one minor tidbit in a load of junk that was immaterial to the case at hand. He is running around claiming that the sky is falling.

If this is so important, then AG Abbott will show the evidence that will allow the statute to be able to pass a strict scrutiny test. If not, then the law is an unconstitutional restraint on Free Speech.

In any event, for a supposed civil libertarian, why are you against protecting constitutional rights?

Anonymous said...

Blues, if we buy into your argument that the government is sovereign, then surely the government's laws (open meetings) should be given absolute deference to their right to speak freely?

In other words, you lose either way.

And if you're waiting for Abbot to bring any semblance of rationality, well, you're going to be waiting a long time.

TxBluesMan said...

Anon 19:00,

You aren't catching the point.

The government has two roles, as an employer and as a sovereign. In the first role, as an employer, they may do what private employers may do when someone speaks out against company policy. In other words, they may discipline or fire the employee.

As a sovereign, the full weight of the state may be used, including criminal sanctions, such as jail. When the state attempts to regulate speech by threats of jail, as in this case, then the law must be held up to strict scrutiny. If it cannot pass that test, it is an unconstitutional restriction of free speech.

Grits is just selective over who should receive civil rights protection...

Anonymous said...

"Enlisted men in the Army and Marines and etc. will be able to argue with their officers and non-coms about orders."

No, the UCMJ defines further rules of law regarding military members. The military holds their members at a higher level. Security, discipline, and secrets are all covered under UCMJ.

Anonymous said...

If the government is a sovereign, then in their capacity aren't the officials PART of that sovereign? Yes they are still people, however if they are part of that government then they are public, thus are not an individual in some instances?

Anonymous said...

Sorry Blues, you can't dodge the issues fast enough. You've just been hit in the face by your own flawed arguments.