Open meetings law threat or guard to free speech rights?

from the Austin American-Statesman:

Seventeen elected officials and four Texas cities, including Pflugerville, have asked a federal judge to scrap the state's Open Meetings Act, arguing that their free speech rights trump the law that requires most government business to be conducted in public.

The officials say the Texas law stifles "uninhibited, robust and wide-open" debate on public issues — the opposite effect intended by the U.S. Constitution's free-speech protection. They say they should not have to forfeit their First Amendment freedoms when taking public office.

But in a case that raises concern in other states with open-government laws, defenders of the Open Meetings Act say the case should be thrown out because the officials are seeking to protect secret speech, not free speech.

"The First Amendment protects citizens against government oppression — not government against citizen oversight," Texas Solicitor General James Ho wrote in legal briefs. "Openness in government is a First Amendment virtue, not a First Amendment violation."

Read the rest here.

Proposed Federal Legislation to Protect Petition and Free Speech

Rep. Steve Cohen (D-TN) has introduced the Citizen Participation Act of 2009, H.R. 4364, which encourages civic engagement and protects against meritless lawsuits brought against those who petition the government or speak out on a public issue. If someone is sued without merit for exercising his or her First Amendment rights, the bill would allow the defendant to have the lawsuit dismissed and recover attorney's fees.

Get more information about the bill here and a link to the bill here.

Court decides to rehear Texas open meetings law case

The U.S. Court of Appeals in New Orleans will hear a case on the constitutionality of the Texas Open Meetings Act that was previously decided by a three-judge court panel, The Reporters Committee for Freedom of the Press reported. The ruling in Rangra v. Brown essentially said that the open meetings law was in conflict with elected officials' freedom of speech because the law made it a crime for a quorum of them to discuss government business outside of public meetings. Several friend-of-the-court briefs have been filed on behalf of the Texas Attorney General's office, which asked for the reconsideration.

A federal appellate court rightly decided this week to re-hear a case on the constitutionality of the Texas Open Meetings Act.

The U.S. Court of Appeals in New Orleans (5th Cir.) took the unusual and laudable step of granting a petition for en banc review, meaning the full court will now consider a case that a three-judge panel of the court previously decided.

The Texas Attorney General’s office asked the court to reconsider its previous ruling in Rangra v. Brown, which said the Open Meetings Act infringed on elected officials' free speech rights by making it a crime for a quorum of them to discuss government business outside of a public meeting.

More here.

ACLU seeks data on border laptop searches

The American Civil Liberties Union has filed a FOIA request for records on laptops searched by border officials, PC Magazine reported. ACLU says these searching practices raise questions concerning First and Fourth Amendment rights because "they involve highly intrusive governmental probing into a traveler's most private information." Department of Homeland Security Secretary Janet Napolitano is expected to release updated guidelines regarding these border laptop searches in the next few months.

How many laptops have border officials searched at U.S. borders? The American Civil Liberties Union (ACLU) wants to know.

The group filed a freedom of information (FOIA) request with U.S. Customs and Border Protection and the Homeland Security Department requesting any and all records dating back to January 1, 2007.

"Disclosure of the requested information ... will further public understanding of the government's expansive exercise of search authority over all travelers, including U.S. citizens, passing through the country's international borders," the letter reads.

More here.

Dissecting Sotomayor's media law record

The Reporters Committee for Freedom of the Press posted an analysis of how Judge Sonia Sotomayor, President Obama's Supreme Court nominee, handled three cases related to media law. In U.S. v. Quattrone, she wrote the majority opinion that struck down a gag order on the press related to the retrial of a former Credit Suisse First Boston executive. In Aequitron Medical Inc. v. CBS, she wrote the opinion that allowed the infant monitor manufacturer to sue CBS News for various business claims but dismissed the defamation and trade libel claims based on procedural grounds. Although Sotomayor has favored withholding records rather than releasing them under federal FOIA, she ordered the release of the suicide note of former deputy White House counsel Vince Foster.

We're compiling a full report on the record of Judge Sonia Sotomayor, President Obama's Supreme Court nominee, in the areas of First Amendment and media law, and expect to post our findings here tomorrow. In the meantime, though, Sotomayor's input on three cases seemed particularly noteworthy:

In high-stakes prosecution, Sotomayor rejected prior restraints on the press.

A 2005 opinion regarding the high-profile prosecution of a bank executive suggests that Sotomayor, in her time as a judge on the U.S. Court of Appeals in Manhattan (2nd. Cir), understood well the value of a transparent judiciary and a free press.

More here.

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.