Open meeting laws may be unconstitutional

Elected officials have First Amendment rights to speak to each other in private. A federal appellate court decides that the Texas Open Meetings law must pass the strict scrutiny standard to be held constitutional, the Reporters Committee for Freedom of the Press reported. “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. Few laws are upheld as constitutional under this test which requires that the law is narrowly tailored to advance a substantial government interest. The determination must first be made by the federal trial court, RCFP reported.

In an opinion that could call into question the constitutionality of open meetings laws everywhere, a federal appellate court held Monday 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.

More here.

PDF of court opinion here.