HOUSTON (CN) - The 5th Circuit on Thursday heard a challenge to part of the Texas Open Meetings Act that makes it a misdemeanor punishable by up to 6 months in jail and a $500 fine for government officials to knowingly participate in closed meetings.
The case stemmed from the 2005 criminal indictment of two Alpine, Texas City Council members, Avinash Rangra and Katie Elms-Lawrence.
The indictment was based on an email exchange between Rangra, Elms-Lawrence and two other Alpine City Council members.
Rangra and Elms-Lawrence denied wrongdoing, and sought the state's interpretation of the Texas Open Meetings Act (TOMA) under the First Amendment.
Before the state court could interpret TOMA in the criminal case, a district attorney dismissed the indictment against Rangra and Elms-Lawrence without prejudice.
Rangra and another Alpine City Council member involved in the e-mail exchange, Anna Monclova, then sued Texas Attorney General Greg Abbott in Federal Court, claiming the criminal penalties of the law violated their free speech rights.
U.S. District Judge Robert Junell concluded in November 2006 that the law did not violate Rangra and Monclova's First Amendment rights, because open meetings were required as part of their official duties on the Alpine City Council.
But in April 2009 a 5th Circuit panel reversed and remanded, finding that strict scrutiny applies to the law's criminal penalties.
In July 2009 the 5th Circuit granted a hearing en banc, then vacated the 5th Circuit panel's April 2009 decision.
The 5th Circuit en banc dismissed the appeal as moot because Rangra and Monclova were no longer serving on the City Council by the time the case was set for oral argument.
A new group of council members from several cities, none of whom had been charged with violating TOMA, then took up the case.
Judge Junell ruled against them in 2011, leading to another appeal and setting the stage for Thursday's oral arguments before a three-judge 5th Circuit panel in Houston.
Plaintiffs' attorney Craig Enoch, a former Texas Supreme Court judge, came out firing, calling the criminal provisions of TOMA a "suppression of speech" that conflict with the government's goal of a "robust conversation" on political issues.
Enoch said that under the law, "If I talk to a person about my position on the issue, they could talk to another person, they could talk to another and I could be in trouble simply for assisting in the conversation."
Enoch added: "When you have a criminal sanction you commit the grave harm of self-censorship. The criminal sanction is really a prior restraint of the words being spoken. ...
"If it's not on the agenda the state's position is the official should just stay silent," Enoch told the panel.
Enoch said there many other avenues Texas could explore short of criminal sanctions.
"You could have a statute that requires the body to write a statement about why it voted the way it did," Enoch said.
Fifth Circuit Judge Jerry Smith said the concern is that officials "would gather in a smoke-filled room," discuss the issues, then come out to the public meeting and vote without discussing the matters in public.
The state's attorney defended the criminal penalties for violating the law.
"Why should the fact that there is a criminal penalty make the law unconstitutional?" he asked. "If all they had to do was redo when they were caught breaking the law, the law would lose its teeth."
He said that every state and the federal government have open meeting laws similar to Texas's, not necessarily including criminal penalties for breaking them, and that "every First Amendment challenge to these laws has been defeated."
Former Texas Solicitor General James Ho, who represented the state against the initial lawsuit and filed a friend of the court brief arguing for keeping the law as is, also spoke on Texas' behalf.
Ho said a separate, unique and distinct First Amendment issue in the case is that public officials often are excluded from meetings among their colleagues.
"The Open Meetings Act benefits public officials as well as the people they represent," Ho said.
Ho described the plaintiffs' arguments against the law as "a perverse way to interpret First Amendment rights."
"If a law doesn't violate First Amendment rights courts shouldn't be able to strike it down just because it includes criminal penalties," Ho said.
San Antonio attorney William McKamie and Houston attorney Dick DeGuerin are assisting the plaintiffs' challenge in the case. They did not speak at Thursday's hearing.