Texas Attorney General Abbott Files For Summary Judgment in Open Meetings Act Lawsuit (TOMA) Somervell County Salon-Glen Rose, Rainbow, Nemo, Glass....Texas

Smacking Down Secret Speech

Texas Attorney General Abbott Files For Summary Judgment in Open Meetings Act Lawsuit (TOMA)

14 July 2010 at 2:43:38 PM

Here's the question. Do you think that city or county elected officials should be able to talk about or discuss government business over emails with a quorum of officials or do you think that they should have to talk about government business in open meetings that the public knows about? Second, does it (wah) violate government officials free speech rights to HAVE to talk about government business openly? We

 A little background which you can read about in the comments here, about a case Alpine vs Wilson.   The context of this post on Somervell County Salon is about whether it was okay for a council person to email a quorum of other council members about city business. We contend that it is not proper, that it in fact is illegal and that there is no distinction between whether there was a comment or a back and forth discussion. 

Here's the link to the lawsuit. 

And more from the RCFP

Essentially the lawsuit is about whether local government's free speech rights are being violated because they can't talk about business with a quorum of city council people in email. What that argues as well is that it's okay to have secret meetings that the public, unless they want to do open records requests to get the email, won't know about and the issues won't be talked about in OPEN SESSION at a meeting. It's ridiculous, right? And yet the Texas Municipal League (TML) thinks this is all fine and dandy.

Greg Abbott, Texas AG, filed a motion for summary judgement yesterday.  Here is his brief   I'm going to paste parts of it in here because it's GREAT!!! (bolding is mine)

The First Amendment protects citizens against government oppression—not government
against citizen oversight.
Open government laws are based on the same premise: that public officials
work for the people

I have to repeat this because it seems quite often that this principle is not recognized by some in local government. Every time a meeting is to be held without proper notice or no minutes are taken or recording, or an agenda or someone gets to speak that is not on the agenda, government is NOT working for the people but putting their own interests first.

For these reasons, openness in government is a First Amendment virtue, not
a First Amendment violation.
The fundamental purpose of the First Amendment is to enable and empower people to engage
in free, robust discourse about their government, its officials, and the policies they adopt on their
behalf. Open meetings laws thus further, rather than frustrate, fundamental First Amendment values,
by educating the public about the conduct and content of public business.
Indeed, courts have
frequently invoked the First Amendment itself to require public access to certain government
proceedings. The Constitution does not forbid what in many contexts it actually requires.
Every State has enacted an open meetings law. And every court to have addressed the issue
has rejected First Amendment challenges to such laws—including this Court. See Rangra v. Brown,
2006 WL 3327634 (W.D. Tex. 2006), appeal dismissed as moot, 584 F.3d 206 (5th Cir. 2009).


This judicial consensus in support of openness and transparency is easy to understand. At
bottom, Plaintiffs’ constitutional attack is about protecting not free speech, but secret speech.

Like when you wonder about stuff that is being voted on but nobody discusses it, and you hear that it was talked about, inappropriately, in executive (closed) session.

What’s more, Plaintiffs demand the right to engage in secret, anonymous speech, despite the fact that
they are government officials, and despite the fact that the Texas Open Meetings Act provisions
challenged by Plaintiffs apply only when a quorum of public officials discusses public business There is, to be sure, a limited First Amendment right to engage in anonymous speech, where
necessary to protect private persons against unjust retaliation. But what Plaintiffs seek here is not
protection against unjust retaliation—but rather, immunity for government officials from political
accountability to their constituents.
Nothing in the First Amendment compels this counterintuitive
result. Accordingly, Defendants’ motion for summary judgment should be granted.

“[T]he Constitution . . . embraces political transparency.” Doe, 2010 WL 2518466, at *17
(Sotomayor, J., concurring). There is no “right to legislate without public disclosure”—to the
contrary, “the exercise of lawmaking power in the United States has traditionally been public.” Id.
at *21 (Scalia, J., concurring). In fact, “[t]he belief that the public is entitled to greater access to
meetings of government bodies has inspired all 50 states to pass statutes that require certain public
agencies to conduct all official meetings in sessions open to the public.” St. Cloud Newspapers, Inc.
v. Dist. 742 Cmty. Sch., 332 N.W.2d 1, 5 (Minn. 1983). See App. (survey of open meetings laws).
The Texas Open Meetings Act (TOMA) is well within the mainstream of this body of law.
Every open meetings law requires members of governmental bodies to discuss public business in the
open, typically only whenever a quorum of members has assembled (although some laws apply only
where deliberation is accompanied by an actual decision, other laws, like TOMA, apply to
discussions about public business even in the absence of a formal decision). Every open meetings
law requires advance notice to the public when such a discussion will take place (although the
specific nature of the required notice, such as the number of days and the manner of such notice, may
vary). Most open meetings laws impose penalties for individual violators—and although
jurisdictions vary with respect to the severity of the penalty, no jurisdiction imposes more than one year of jail time for knowing violations of the law. Texas law imposes no penalty absent knowing
conduct, while some states are more restrictive, imposing liability for negligence or even strict
liability. Finally, many open meetings laws, like TOMA, have been construed to apply to electronic
as well as physical, in-person discussions (while some have yet to be construed on this point). See
also TEX. GOV’T CODE § 551.128 (authorizing Internet broadcasts of open meetings).


This broad consensus in favor of open meetings laws is entirely understandable, because
requiring officials to conduct public business in public furthers, rather than frustrates, fundamental
First Amendment values. As the Supreme Court has repeatedly reminded us, the purpose of the First
Amendment is to empower citizens to engage in a free, open, and informed discussion about our
government, our elected officials, and the policies they put forth on our behalf.2


II. The Supreme Court Has Drawn A Sharp Distinction Between Laws That Restrict Free
Speech and Laws That Require Disclosure and Thus Restrict Only Secret Speech.
Plaintiffs claim that TOMA is unconstitutional because it “prevents public officials in Texas
from exercising their free speech rights.” Compl. ¶ 27. The conclusion is wrong, because the
premise is wrong: TOMA does not prohibit anyone from speaking. It merely provides that, when a quorum of public officials discusses public business under their supervision or control, they must do so openly, and not in secret.
There is a fundamental difference between a law that actually restricts speech, on the one
hand, and a law that merely requires that speech take place in the open. The former means less
expression—while the latter means more expression, by expanding the audience of listeners.


TOMA serves several important governmental interests. Most obviously, the Act empowers
citizens to hold their representatives and officials in government accountable by enabling them to
observe their conduct of public proceedings and discussions about public business


Likewise, in Doe the Court reaffirmed the importance of the public interest in “fostering
government transparency and accountability,” as well as in preserving the integrity of the electoral
process. 2010 WL 2518466, at *7. In fact, the interests served by open government laws are
“particularly strong with respect to efforts to root out fraud,”
because fraud “has a systemic effect”:
the absence of openness and transparency “drives honest citizens out of the democratic process and
breeds distrust of our government.” Id. (quotations omitted). The Court further noted that, although
the government can certainly undertake measures to monitor itself, “[p]ublic disclosure can help cure
the inadequacies” of the government’s own policing efforts.

We agree with this. This is why we, at Somervell County Salon, LOOK at open records that have to do with what we are paying with our tax money, whether it is okay to show others what bids will be, or avoid public bidding processes or even, whether it's okay for an Oakdale Park employee to go to Hooters on the taxpayer's dime.  You don't agree with looking at open records by the public? then you don't agree with Republican Attorney General Greg Abbott.

Id. at *8. In sum, “[p]ublic disclosure
. . . promotes transparency and accountability . . . to an extent other measures cannot.
” Id. Doe involved the application of open government laws specifically to certain aspects of the electoral
system in Washington State, but its principles apply with equal force to other government functions.4
In addition, open meetings laws serve not only the interests of the public, but also the
interests of public officials themselves. Officials may promise their constituents that they believe
in openness and transparency. But they may also want an opportunity to actually prove their fidelity
to their constituents. After all, without a robust open meetings law on the books, a skeptical citizen
may be unwilling to take the official at his or her word. A citizen may believe that the public
discussion is actually a sham, and that the decision has already been carefully—and

Such as when the officlals talk about items in executive sessions or at *retreats* without a well-defined agenda.

Only by enacting and enforcing open meetings laws like TOMA can a
public official begin to persuade the dubious citizen that what they see is indeed what they get.
Open meetings laws also protect public officials in yet another way. A public official may
want to ensure that he or she is not excluded from discussions about public business by a majority
of his or her colleagues meeting in secret. Without an enforceable open meetings requirement,
however, there may be little an official can do to prevent a majority cabal from discussing, and
deciding, public business at their exclusion. See, e.g., Rangra, 2006 WL 3327634, at *2 (describing
efforts to exclude city council member Nancy DeWitt from council deliberations).

IV. The First Amendment Protects the Right to Anonymous Speech—But Only When
There Is Substantial Evidence of Threats, Harassment, or Reprisals.
The public interest in transparency and disclosure is an important one. But it is not absolute,
to be sure. For example, a private individual has a First Amendment right to anonymous speech—provided that the person first demonstrate “a reasonable probability that the compelled
disclosure . . . will subject [him] to threats, harassment, or reprisals from either Government officials
or private parties.” Doe, 2010 WL 2518466, at *9 (quotations omitted). See also, e.g., id. at *17
(Sotomayor, J., concurring) (same); id. at *19 (Stevens, J., concurring) (same) (discussing McIntyre
v. Ohio Elections Comm’n, 514 U.S. 334 (1995)).
It is far from clear, however, that public officials, engaged in public business, enjoy any First
Amendment right to secrecy against their own constituents. As Justice Scalia noted in Doe,
“Plaintiffs point to no precedent from this Court holding that legislating is protected by the First
Amendment. Nor do they identify historical evidence demonstrating that ‘the freedom of speech’
the First Amendment codified encompassed a right to legislate without public disclosure. This
should come as no surprise; the exercise of lawmaking power in the United States has traditionally
been public.”
Id. at *21 (Scalia, J., concurring). Indeed, our system of democracy is based on the
very premise that public officials are subject to legitimate public protest and opprobrium—including
the denial of reelection or reappointment based on their conduct of public business

Again, only parts excerpted here. I for one, am thrilled to see Abbott putting forth this brief and I hope it gets acted on quickly. It's absurd otherwise, and should this lawsuit win, it would mean that the public should quit expecting to know what elected officials are doing.


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