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Friday, May 08, 2009

Courts - Open meetings law may be unconstitutional, 5th Circuit rules

The Reporters Committee for Freedom of the Press reported April 30th in an entry that begins:

In an opinion that could call into question the constitutionality of open meetings laws everywhere, a federal appellate court held Monday [April 24th] that the Texas Open Meetings law must pass a heightened constitutional test under the First Amendment.

In a relatively brief opinion, the U.S. Court of Appeals in New Orleans (5th Cir.) held that elected officials have First Amendment rights to speak to each other in private. As a result, open meetings laws that prohibit private speech between elected officials have to pass stringent constitutional muster, the court said.

The case centers on two city council members who were prosecuted for violating the law by privately e-mailing each other. Their alleged crime was “acting as a quorum in exchanging private emails discussing whether to call a council meeting to consider a public contract matter,” according to the court.

The district attorney eventually dropped the charges in the case, but the council members argued in federal court that the law violated their First Amendment rights.

The trial court found that as elected officials, the council members' speech was not protected by the First Amendment. The appellate court found otherwise.

“The Supreme Court’s decisions demonstrate that the First Amendment’s protection of elected officials’ speech is robust and no less strenuous than that afforded to the speech of citizens in general,” Judge James Dennis wrote for the three-judge panel.

The unanimous appellate court then sent the case back to the trial court for review. It said the trial court had not properly considered whether the statute was constitutional under the “strict scrutiny” standard, and that it should do so now.

That standard requires that, if it will interfere with protected speech, a regulation must be narrowly tailored to advance a substantial government interest. Few laws are upheld as constitutional under this test.

Here is a link to the 5th Circuit opinion.

Posted by Marcia Oddi on May 8, 2009 04:19 PM
Posted to Courts in general