Unconventional Supreme Court case could turn First Amendment protection AGAINST government overreaching into protection FOR government overreaching

The Supreme Court will hear arguments April 27 in a First Amendment case with exceedingly high stakes for the legality of open-government statutes across the country.

If the Court agrees with the reasoning of the Nevada Supreme Court in the case of Commission on Ethics of the State of Nevada v. Carrigan, then every open meetings law in the country is under a constitutional cloud.

In Carrigan, a 5-1 majority of the Nevada Supreme Court threw out a state-issued reprimand of a city council member who was rebuked under a statute that requires elected officials to refrain from voting if there is an appearance of conflict of interest. The Nevada court agreed with the councilman that his act of voting on a zoning petition was protected First Amendment expression, so any ethics law burdening his ability to vote had to pass the most exacting constitutional scrutiny possible.

As I explain in this article for the American Constitution Society, the logic of the Carrigan case could equally support a city councilman who claims that state open-meetings laws are unconstitutional because he has a right to discuss government business anonymously. That is exactly the argument that was raised by elected officials in Texas — and rejected by a U.S. District Court — in the 2009 case of Rangra v. Brown. But if the Carrigan ruling is not overturned, more Rangra-type challenges are inevitable:

If Carrigan is correctly decided, then it does not appear possible to affirm the constitutionality of open-meetings statutes against the Rangra argument. The public’s interest in open government is scarcely more compelling than the public’s interest in honest government, and regulating the discussion leading up to a vote must necessarily limit First Amendment speech if regulating the vote itself does.

Carrigan is that rare case in which journalists’ absolutism about the First Amendment must yield to a higher good, and in this case, an expansive First Amendment ruling would turn out very badly not just for journalists but for anyone who cares about ethics and accountability in government.