Texas Meetings Rule Does Not Restrict Free Speech

     (CN)- The Texas Open Meetings Act does not restrict the free speech rights of elected officials and merely requires disclosure of speech, the 5th Circuit ruled Tuesday.
     Fifteen city council members from across Texas, including Mel Leblanc from Arlington and Henry Wilson from Hurst, sued the state in Midland Federal Court, arguing the law requiring public government meetings criminalizes political speech based on content, is unconstitutionally vague and overbroad.
     Members of governing bodies are banned from “knowingly participating in a closed meeting, to organize a closed meeting, or to close a meeting to the public,” with violations punishable by a fine of $100 to $500 and confinement in jail for one to six months.
     The plaintiffs argued the restrictions are content-based because they apply only to speech regarding “public policy over which the governmental body has supervision or control.”
     The three-judge panel was not persuaded, finding the act is a content-neutral time, place or manner restriction and that a law that “appears content-based on its face may still be deemed content-neutral if it is justified without regard to the content of the speech.”
     “Here, government is not made less transparent because of the message of private speech about public policy: Transparency is furthered by allowing the public to have access to government decision-making,” the opinion states. “This is true whether those decisions are made by cogent empirical arguments or coin-flips. The private speech itself makes the government less transparent regardless of its message. The statute is therefore content-neutral.”
     The court disagreed that the act is unconstitutionally overbroad, that it “criminalizes all private speech among a quorum of a governing body that is about public policy, and most of such speech does not lead to corruption,” according to the plaintiffs.
     “The plaintiffs’ argument fails, because it ignores the other purposes of TOMA, such as increasing transparency, fostering trust in government, and ensuring that all members of a governing body may take part in the discussion of public business,” the opinion states. “With respect to these other goals, TOMA is not overbroad.”
     The court also disagreed that the act is unconstitutionally vague, that it “is so unclear that public officials need an educational course to comply with it, and even lawyers that specialize in TOMA often cannot predict its interpretation,” according to the plaintiffs.
     “Neither of the issues plaintiffs point to implicates the underlying purpose of the vagueness doctrine: preventing government from chilling substantial amounts of speech and facilitating discriminatory and arbitrary enforcement,” the opinion states. “The concern underlying the vagueness doctrine is that citizens will not be able to predict which actions fall within the statute, leading to arbitrary and discriminatory enforcement.”
     The court noted the plaintiffs failed to point to any section of the act that is vague on its face, that their complaints have more to do with the act’s complexity rather than it’s supposed vagueness or lack of standards.

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