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Capitolbeat Joins Fight to Save Open Meetings Laws

September 4, 2009

Capitolbeat has joined another amicus brief in a case that will directly impact members in Texas, Louisiana and Mississippi and has the potential to change the status of Open Meetings laws around the country. The case, Rangra v. Brown, calls into question the underpinnings of every state open meetings law (as well as the federal Sunshine in Government Act and similar local laws).

The entire matter started with the criminal indictment of two local officials, city council members in Alpine, Texas. They were charged with knowingly discussing and acting on city business matters regarding a city contract outside of public view. More specifically, these council members, representing a quorum able to legally bind the city, discussed the contract via Email rather than in a public meeting. The criminal charges were eventually dropped, though the two officials suited in federal District Court to have the Texas Open Meetings Act declared unconstitutional because it violates their right to speak freely to other city council officials. The United States District Court dismissed their lawsuit, holding that the First Amendment does not protect the right to speak freely within the course of one’s job as a city official in this way.

A three judge panel of the United States Court of Appeals for the Fifth Circuit reversed, holding that law is an unconstitutional, content-based, restriction on the free speech rights of individuals – in this case, public officials. Our brief is being filed as the entire United States Court of Appeals for the Fifth Circuit prepares hear the case “en banc”.

Capitolbeat joined several media organizations and companies, including the ABC, American Society of News Editors, Associated Press, Association of Alternative Newsweeklies, Bloomberg, Hearst, Media News Group, National Press Club, Newspaper Association of America, New York Times, Newsweek, Radio Television News Directors Association, Reuters, Scripps, Society of Professional Journalists, Stephens Media, Student Press Law Center, Texas Association of Broadcasters, Texas Daily Newspaper Association, Texas Press Association, Tribune Company, Washington Post Co. on a brief drafted and filed by the Reporters Committee for Freedom of the Press.

The Reporters Committee have issued a press release regarding the brief, but here’s a short summary from your legal counsel:

1. The United States Court of Appeals focused too much on the pure constitutional arguments involved, without considering how this would affect the practical aspects of access to government information around the country. By way of contrast, the District Court dove directly into the overall purpose of Open Meetings laws, which exist primarily to enhance public scrutiny of government officials. It noted a recent decision from the Kansas Supreme Court in a similar case for the proposition that the First Amendment protects mainly private citizens; it would, ironically, be those very same citizens who would feel the brunt of this law being declared unconstitutional, as they would lose the key ability to oversee government action. The brief reminds the Court of Appeals that this is not just the case in Texas, but in every other state and in the federal government, all of which have similar Open Meetings or “Sunshine” laws.

2. A purely legal review of the law also mandates that it be upheld. The United States Court of Appeals applied the “strict scrutiny” standard of review given to the most stringent restrictions on speech. However, application of the strict scrutiny standard is not proper when the case is brought by a government official. In fact, an Open Meetings Act is not a classic “restriction” on speech in any sense of the word. It doesn’t prevent public officials from speaking, it simply regulates the “time, place or manner of that person’s speech.” A public official acting on behalf of a government entity can still say whatever he or she wants, all that is required is that the person speak publicly, not behind closed doors.

3. Finally, the brief makes the important policy arguments for saving the Texas Open Meetings Act. The public has a First Amendment interest of its own in this speech: the right to receive information. This right outweighs the more limited right to free speech held by a public official.

We’re proud that Capitolbeat continues to speak up for the rights of statehouse journalists in this and other important cases. Remember: if there is a legal matter on which you think we should be taking a position, you can contact Kevin M. Goldberg at 703-812-0462 or or let the Board know it’s time to take action.

Update: The United States Court of Appeals dismissed the case as moot because the two government officials that brought the legal challenege are no longer in office. We’ll consider it a “technical knockout” that keeps the Open Meetings Laws intact.

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