Texas Municipal Officials Fight 'Open Meeting Act,' Get Shot Down By Fifth Circuit Court

Free Speech

from the the-only-thing-transparent-here-is-their-self-interested-motives dept

There's been a whole lot of talk about openness in government, but so far, very little action. Many vague statements and unkept promises have raised the public's expectation of actually being involved, but when push comes to shove, legislators seem much more comfortable doing things the old, closed-door way.

The public has been pushing back against this lack of transparency. The Texas Open Meetings Act requires that most government meetings be open to the general public. There are a few exceptions, but generally speaking, all qualifying meetings must be be announced at least 72 hours in advance and any final actions, decisions or votes must be made in these open meetings. If the Act is violated, the official(s) are subject to fines up to $500 or up to six months in prison.

In response, Texas municipal officials did what most officials do when faced with mandatory transparency: they tried to get the law thrown out as a violation of their First Amendment rights.

Fifteen city council members from across Texas, including Mel Leblanc from Arlington and Henry Wilson from Hurst, sued the state in Midland Federal Court, arguing the law requiring public government meetings criminalizes political speech based on content, is unconstitutionally vague and overbroad.

Specifically, the officials claimed that the law is “content-based” as it applies only to “public policy over which the governmental body has supervision or control.” They also expressed their concern that the Act was too vague and had the potential to “criminalize all private speech among a quorum of a governing body that is about public policy,” helpfully stating that “most” of this sort of private policy-related speech “does not lead to corruption.” Not only was the Act too vague in these officials' opinion, but it was simultaneously “too complex,” requiring an “educational course to comply with it.” (This last part is true — an Open Meetings Training section exists in the Act — but it hardly makes the law overly complex.)

The 5th Circuit Court shot every argument down, reminding officials that the goal of the Act is to bring about more openness and transparency, rather than to be used a blunt-force weapon for constituents to punitively punish government officials.

Referring to the argument that the law is “content-based,” the court declared:

“Here, government is not made less transparent because of the message of private speech about public policy: Transparency is furthered by allowing the public to have access to government decision-making,” the opinion states. “This is true whether those decisions are made by cogent empirical arguments or coin-flips. The private speech itself makes the government less transparent regardless of its message. The statute is therefore content-neutral.”

The arguments that the act is unconstitutionally overbroad and vague were dismissed as well:

“The plaintiffs' argument fails, because it ignores the other purposes of TOMA, such as increasing transparency, fostering trust in government, and ensuring that all members of a governing body may take part in the discussion of public business,” the opinion states. “With respect to these other goals, TOMA is not overbroad.”

“Neither of the issues plaintiffs point to implicates the underlying purpose of the vagueness doctrine: preventing government from chilling substantial amounts of speech and facilitating discriminatory and arbitrary enforcement,” the opinion states. “The concern underlying the vagueness doctrine is that citizens will not be able to predict which actions fall within the statute, leading to arbitrary and discriminatory enforcement.”

The Circuit Court found that increasing transparency and trust in government legitimized the inclusion of criminal penalties in the Act, as the overall point of the law was to foster governmental openness rather than curtail any official's First Amendment rights.

It's a great first step and one that will probably be cited if other states follow suit. (Illinois has its own Open Meetings Act.) Of course, this particular battle is far from over. The municipal officials are planning an appeal to the US Supreme Court, which seems like a ton of effort and expense to go through simply to lock the public out of discussions on policies that affect them.

Filed Under: free speech, open meetings, texas, transparency