Fifth Circuit Panel Appears Skeptical of Challenge to Open Meetings Law

Group of city officials say threat of criminal penalties chills their free speech…

By Mark Curriden

HOUSTON (April 5) — The effort of a group of elected local officials from across Texas to have portions of the state’s Open Meetings Act declared unconstitutional appeared to hit a roadblock Thursday: a very skeptical U.S. Court of Appeals for the Fifth Circuit.

Lawyers representing 15 leaders from cities across Texas, including Arlington Councilman Mel LeBlanc, told a three-judge panel of the Fifth Circuit that the threat of criminal penalties for violating the Open Meetings Law actually prohibits free speech and thus violates the First Amendment rights of public officials.

Alpine City Councilwoman Diana Asgeirsson and the others hired high-profile Houston lawyer Dick DeGuerin, who filed a federal lawsuit in 2009 after two other Alpine council members were indicted for violating the open meetings law. The criminal case was later dismissed.

U.S. District Judge Robert Junell in March 2011 rejected the constitutional claims brought by the city leaders, who appealed to the Fifth Circuit.

“The issue here is the criminal sanction, which limits speech and creates great harm,” former Texas Supreme Court Justice Craig Enoch, who argued the case for the local officials, told the federal panel meeting in Houston Thursday.

“The criminal sanction acts as prior restraint,” Enoch argued. “The threat of being indicted leads to self-censorship. The compelling interest of the government is, or should be, in a robust discussion.”

Texas Deputy Solicitor General Sean Jordan told the federal appeals court panel, which consisted of Judges Jerry Edwin Smith, Emilio Garza, and Leslie Southwick, that the Texas Opening Meetings Act is constitutional because it is “content neutral” and requires disclosure.

“The open meetings law wants to expand speech and expand audience participation in the speech,” Jordan said. “Every state in the U.S. has had open meeting laws on the books for 35 years, some for 50 years, and none have been struck down.”

The federal judges also heard from former Texas Solicitor General James Ho, who represents two-dozen elected officials and a handful of news media outlets, including Belo and The Dallas Morning News, as amici curiae who want the law upheld.

“Public officials work for the people, so the people have a right to know what officials are doing on their behalf,” said Ho, who is a partner at Gibson, Dunn & Crutcher in Dallas. “Openness in government is thus a First Amendment virtue, not a First Amendment violation. Plaintiffs contend otherwise. But what they seek to protect is not free speech, but secret speech.”

Ho also pointed out that he represents a handful of elected public officials who were shut out of the secret meetings that the plaintiffs want decriminalized.

“The majority excludes the minority, thus denying them a voice and their free speech rights,” Ho told the judges.
Enoch countered that while all states may have open meeting laws on their books, none have faced a First Amendment free speech challenge similar to this one.

Even so, two of the appellate judges, Smith and Garza, seemed openly hostile to the plaintiffs’ arguments and friendlier toward the state’s positions. Judge Smith, at one point, interrupted Enoch’s arguments.

“This is not a ‘no-speech’ case, even though you want to frame it that way,” Judge Smith said. “This statute is simply when and where. The danger is that all the decisions would take place in smoke-filled rooms with no one watching.”

At another point, Judge Garza said, “This law just wants transparency.”

An audiofile of yesterday’s oral argument in this case is available at http://www.ca5.uscourts.gov/OralArgumentRecordings.aspx.

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