Open meetings and closed mouths: elected officials' free speech rights after Garcetti v. Ceballos.

• Author: Diehl, Christopher J.

"Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion." (1)

CONTENTS INTRODUCTION I. OPEN MEETING LAWS A. Why Sunshine Is the Best Disinfectant B. But Too Much Disinfectant Can Be Toxic C. And What's Really in this "Best of Disinfectants"? II. FIRST AMENDMENT IMPLICATIONS A. Public Employee Free Speech B. The Test from Garcetti Is Not an Appropriate Tool to Analyze the Speech of Elected Officials C. Elected Official's Free Speech Rights 1. Interpreting the Speech or Debate Clause 2. The Extent of Elected Officials' First Amendment Rights III. OPEN MEETING LAWS AND THE FIRST AMENDMENT A. Determining the Burden on Elected Officials' Speech 1. Content-Neutral and Content-Based Restrictions 2. Subject-Matter Restrictions B. Determining the Appropriate Level of Scrutiny IV. ANALYZING OPEN MEETING LAWS A. Analysis of Texas' Open Meeting Law 1. TOMA Generally 2. First Amendment Analysis a) TOMA as a Subject-Matter Restriction b) The Context Surrounding TOMA Suggests Invalidation c) TOMA's Scope May be Narrow, but It Has a Potent Impact on the Level and Quality of Political Debate B. Analysis of Ohio's Open Meeting Law V. PROPOSED SOLUTIONS CONCLUSION INTRODUCTION

On October 21, 2004, Katie Elms-Lawrence e-mailed three of her fellow Alpine City Councilpersons to arrange a special meeting. Her email spoke of the City's ongoing search for an engineering firm and the fact that she had just discussed one of the candidates they had recently interviewed with Councilwoman Monclova. "[W]e both feel Mr. Tom Brown was the most impressive ... no need for interviewing another engineer at this time," (2) her email read. Three days later, Councilman Rangra responded to the e-mail and copied two other councilpersons, saying that he would arrange the meeting. Little did they know that this seemingly innocent exchange of emails would lead District Attorney Frank Brown to indict Rangra, Elms-Lawrence, Monclova, and another council member on criminal charges of violating the Texas Open Meetings Act (TOMA) several months later. (3)

The District Attorney ultimately dropped the criminal charges, but Rangra and Monclova filed a declaratory action under 42 U.S.C. [section] 1983, seeking a judgment that the criminal provisions of TOMA violated their First Amendment rights under the Free Speech Clause and were unconstitutional both on their face and as applied to their particular situation. (4) The United States District Court for the Western

District of Texas dismissed the suit, (5) reasoning that, because the council members spoke in their official capacity, the First Amendment had no application. (6) A panel of the United States Court of Appeals for the Fifth Circuit reversed, holding that TOMA acted as a content-based restriction on the councilmember's speech (a designation that makes the Act inherently suspect) and remanded the case with instructions for the district court to apply strict scrutiny. (7) The Fifth Circuit voted to rehear the matter en banc; (8) however, before the court heard arguments, it issued a one-line order dismissing the case for mootness. (9)

Although the entire Fifth Circuit declined to reach the merits of the appeal, the panel's decision raises some interesting--and, indeed, farreaching--questions regarding the free speech rights of elected officials and how open meeting laws may impinge upon these freedoms. Part I of this Note provides some background on the development of open meeting laws, including their pervasiveness and commonly perceived benefits and drawbacks. Part II then discusses the extent to which the Free Speech Clause of the Federal Constitution should apply to elected officials acting in their official capacity. While some courts have held that the recent Supreme Court decision in Garcetti v. Ceballos (10) limits the free speech rights of all government employees acting in their official capacity, this Note argues that courts should treat elected officials differently. Rather than having their rights hamstrung, elected officials should receive the full protection of the First Amendment, even when acting in their official capacities, because the nature of their relationship with their "employer" is different from that of other government employees. This Note argues that there are sufficient common-law justifications for extending elected officials the full protections of the First Amendment, and that Garcetti does nothing to alter this doctrine. Part III then looks at the various levels of First Amendment scrutiny employed by the courts. After giving a brief overview of the two most common forms of speech restriction (content-neutral and content-based burdens), this Note argues that open meeting laws actually regulate speech based upon subject matter. Subject-matter restrictions pose a particular conundrum for courts as they can perpetuate the same evils as either content-neutral or content-based burdens, depending upon the circumstances. As such, courts should adjust the level of scrutiny brought to bear on subject-matter restrictions in accordance with the underlying First Amendment dangers that the particular restriction poses. This requires a more nuanced analysis, rather than a mechanical application of strict scrutiny.

Part IV then uses this framework to analyze both TOMA and the Ohio open meeting law. It concludes that open meeting laws, which choke off all means of communication on the subject of political issues, pose a threat to free discussion and are contrary to basic First Amendment principles. Furthermore, open meeting laws that impose criminal penalties on individual violators are particularly insidious because of the significant chilling effect they create. Finally, Part V proposes several steps that states can take to reduce the burdens on their elected officials' First Amendment rights, including dispensing with criminal penalties and clearly defining "meeting" in their statutes. And, contrary to some critics' contentions, these remedies will enhance, rather than dilute, the level and quality of debate in public bodies.

1. OPEN MEETING LAWS

   Though many assume there is a constitutional "right" to attend meetings of the government, this assumption is incorrect; there is, in fact, no generally recognized common law or constitutional right for the public to attend governmental meetings. (11) However, every state currently has some form of open meeting law. (12) Though laws requiring open government are actually a relatively new creation, (13) the U.S. House of Representatives and the U.S. Senate have met in public for the vast majority of their existence. (14) Despite these early inklings of openness, had open meeting"aws been around in the Eighteenth Century, the United States as we know it today may never have come about--the Founders conducted the Constitutional Convention of 1787 in total secrecy. (15)

   Open meeting laws did not begin to crop up in a significant fashion until the middle of the Twentieth Century. Alabama is thought to have enacted the first "open meeting" law in 1915. And, as late as 1950, it remained the lone state with a "comprehensive" open meetings statute. (16) In the years immediately following Watergate, however, the states with open meeting laws rushed to expand them and those without hastily enacted their own. (17) Today, open meeting laws have become so important to the appearance of open government that over half the states make some mention of open government in their constitutions. (18)

   1. Why Sunshine Is the Best Disinfectant

      The need for open meeting laws grew out of the impression that a great deal of state and local decision making took place "behind closed doors." (19) Perhaps this perception is what led Justice Brandeis to remark: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." (20) But even this idea needed decades to find traction. It wasn't until the early 1960's that the public (or, more specifically, the media) sent the drive for open meeting laws into high gear by sounding the now familiar rallying cry of "[t]he people have a fight to know!" (21)

      This sentiment--the "right" to know--was one of the main ideas driving the enactment of open meeting laws. In short, the principle is that government officials should conduct the public's business in public. (22) This principle is rooted in the idea that "government is and should be the servant of the people." (23) Open meeting laws facilitate that service by "promot[ing] the free flow of information so that news media may report events accurately rather than relying on potentially biased or inaccurate leaks." (24) Thus, open meetings encourage confidence in elected officials and reduce corruption. (25) According to some scholars, this openness allows the public to become more involved in the decision-making process and affords them a better understanding of the nuances of modern government. (26)

      While several states go so far as to explicitly outline the rationale for open meetings in their constitutions, (27) others simply include these public policy justifications in their statutory schemes. (28) Whatever the form and wherever the locale, the underlying rationale is essentially the same: open access to governmental decisions and deliberations is an overriding public policy goal. (29)

   2. But Too Much Disinfectant Can Be Toxic

      Though originally touted (30)--and still heralded--by the media as the best tonic for flushing out corrupt practices in government, open meeting laws are not without their detractors. (31) Though most commentators generally agree that the ideals of open government and accountability are laudable, some take issue with the mechanism for attaining those goals.

      The most consistent criticism of open meeting laws is that they limit free debate and...