It is heartening when local elected officials exhibit such fervor for the sanctity of the First Amendment that they are willing to go to court to defend it – except where the “freedom” they are asserting is the freedom to exclude the public from deliberations over government business.
The 16 judges on the Fifth Circuit U.S. Court of Appeals are set to hear arguments Sept. 24 in a role-reversal First Amendment case that has government officials playing the role of free-speech absolutists – with the nation’s top First Amendment lawyers as their opponents.
In the case of Rangra v. Brown a three-judge panel of the Fifth U.S. Circuit Court of Appeals accepted the bizarre and dangerous argument that a Texas state law requiring government bodies to hold open meetings was a restraint on the elected officials’ right of free speech, and therefore presumptively unconstitutional.
The case arose out of a series of e-mail exchanges among several members of the Alpine, Texas, city council – enough to constitute a decision-making majority – over the hiring of an engineer and other municipal business. The state Attorney General pursued criminal charges, and the accused violators raised the First Amendment in response.
The trial court didn’t buy it. But the appeals panel ruled in April that a law requiring that public officials’ discussion of public business be conducted in the open is a restraint on the First Amendment rights of those speakers based on the subject matter they are speaking about. And once a regulation is classified as a “content-based” restriction on speech, it is unconstitutional unless it satisfies the most exacting level of judicial scrutiny. Almost no regulation does.
On Thursday, the SPLC signed onto a legal brief authored by the legal staff of the Reporters Committee for Freedom of the Press, urging the full 16-member (“en banc”) circuit court to overrule the errant three-judge panel’s decision. The circuit covers the states of Texas, Louisiana and Mississippi.
En banc consideration of cases is quite rare, and reversal of a panel’s decision even rarer, but this is a case in which a thundering national consensus supports it. State attorneys general of all political persuasions have weighed in to point out that the decision, if not corrected, will place every state’s open-meetings law under a constitutional cloud, despite overwhelming public support for “sunshine” laws, which exist in all 50 states.
As the amicus brief points out, restrictions on speech are disfavored and are subjected to rigorous constitutional scrutiny where they result in suppressing speech – that is, in preventing expression from being heard. An open-meetings law has the opposite purpose and effect. These laws, when properly enforced, ensure that more people hear what government officials are discussing.
When people voluntarily seek out influential government positions, they agree to subject themselves to all sorts of conditions that arguably afford them less liberty and privacy than a private citizen. For instance, federal and many state laws require officials attaining a certain rank to publicly disclose sources and amounts of income, to report (or refuse) certain types of gifts, and to refrain from engaging in certain types of outside employment (such as paid speaking appearances). Accepting a position of public trust means agreeing to operate within the constraints of the job, and one of those is that discussions of public issues must be held in the open, with adequate public notice, and recorded or transcribed. A government official has no more “constitutional right” to deliberate public business in private than he does to keep the bribe money he is paid by asserting a property right in his “earnings.”
It is hard to repress an eyebrow-arch when city council members assert a First Amendment right to speak freely about what they are working on. For decades, elected officials have been remorselessly disciplining or firing subordinates for what they say, and then going to court and claiming that public employees have no free-speech rights. And the argument has largely succeeded – the Supreme Court has gutted the First Amendment status of public employees’ speech, so that a government worker can be confident that she has the full benefits of citizenship only so long as she refrains from discussing anything relating to her job.
So, unless the full Fifth Circuit restores sanity, it may be the law that an elected official has a constitutionally protected right to gossip privately about business that the law requires be discussed in public, but a working stiff on the government payroll has no protected right to blow the whistle on wrongdoing that should be made public.