AUSTIN – Texas Attorney General Greg Abbott fought to protect transparency and openness in government Monday when he filed a brief defending the constitutionality of the Texas Open Meetings Act (TOMA). A number of Texas cities and local officials are working to avoid compliance with the law by challenging its constitutionality in federal court.
As Attorney General Abbott’s brief explains, TOMA promotes the fundamental principle of democratic government by requiring that members of governmental boards and commissions conduct the taxpayers’ business in a manner that is open and accessible to the public. Thus, when a quorum of officials on a local city council or county commission want to meet and discuss public business, they must post public notice first and hold their meetings in open sessions that members of the public are free to attend. Though TOMA has exceptions that allow closed sessions in special circumstances, such as when officials need to discuss confidential personnel matters, it is otherwise a criminal offense for a quorum of governmental officials to discuss official business outside the setting of an open meeting.
The plaintiffs in City of Alpine, et al. v. Greg Abbott and the State of Texas, et al. are asking the federal district court in Pecos to overturn TOMA because they claim the Act’s criminal provisions violate the First Amendment. The same arguments were presented by the plaintiffs in Rangra v. Brown, but were rejected by the federal district court. Later, Attorney General Abbott defeated their legal attack on procedural grounds after successfully convincing a 16-1 majority of the U.S. Court of Appeals for the Fifth Circuit that the plaintiffs’ case was moot. Solicitor General James Ho, who authored the brief asking the Court to dismiss the City of Alpine complaint, is serving as the State’s lead counsel in this case, as in Rangra.
The State’s legal brief explains that the plaintiffs’ constitutional attack on open government turns the First Amendment on its head. “The First Amendment protects citizens against government oppression – not government against citizen oversight,” the brief explains. “Open government laws are based on the same premise: that public officials work for the people.”
“Openness in government is a First Amendment virtue, not a First Amendment violation,” the brief states. “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 brief observes that every state has enacted an open meetings law and that every court to have confronted a First Amendment challenge to such laws has rejected the challenge and upheld the law – including the same federal district court that will hear the City of Alpine case.
In addition, the U.S. Supreme Court has repeatedly upheld disclosure requirements against First Amendment attack, including two rulings issued just this year. Invoking those rulings, the brief concludes that the “Plaintiffs’ constitutional attack is about protecting not free speech, but secret speech.” As the brief observes, “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.”