Free Speech and Open Meeting Laws
Are Americans turning First Amendment free speech into a fetish? The
reason I ask this question is because, after writing this sentence in <a href="http://www.cityethics.org/content/carrigan-free-speech-case-goes-suprem…; target="”_blank”">a
recent blog post</a> — "Saying that a local legislator [with a conflict of interest] has a free
speech right to vote is no different than
saying that a local legislator has a free assembly right to meet
secretly, despite open
meetings laws." — I came across a 2009 Fifth Circuit decision,<a href="http://www.ca5.uscourts.gov/opinions/pub/06/06-51587-CV0.wpd.pdf" target="”_blank”">
Rangra v. Brown,</a> 566 F.3d 515 (5th Cir, 2009) on the application of open meeting
laws to city council members that applied not the free assembly part of
the First Amendment, as any normal person would, but rather the free
speech part, saying that such open meeting restrictions demand strict scrutiny.<br>
<br>
Let me start with the Webster New Collegiate definition of "fetish": an
object believed among a primitive people to have magical power to
protect or aid its owner; broadly: a material object regarded
with superstitious or extravagant trust or reverence. An object
of irrational reverence or obsessive devotion.<br>
<br>
Free speech is not, of course, a material object, but I do think that
the value of protecting the free speech of citizens from being impinged
by their government has been replaced by a superstitious and
extravagant trust and reverence in free speech for its own sake,
separating it from its original purpose. This trust in and reverence for free speech has
led to a decision about council members meeting via e-mail that does
not even mention the freedom of assembly. Why? Because free assembly is
not a fetish. No one seems to care about it anymore. There aren't
institutes and websites obsessively devoted to it.<br>
<br>
For example, here's a list of the topics in the column on free assembly
on the <a href="http://www.firstamendmentcenter.org/topicssummary.aspx" target="”_blank”">First
Amendment Center website</a>:<ul>
<span class="chan7">• Curfews, loitering & freedom of association
</span><br>
<span class="chan7">
• Civil rights & First Amendment
</span><br>
<span class="chan7">
• Abortion protests & buffer zones
</span><br>
<span class="chan7">
• Assembly on private property
</span><br>
<span class="chan7">
• Funeral protests
</span></ul>
Note that open meeting restrictions are left off the list (you can find
them under freedom of the press). In contrast, there are dozens of
topics under freedom of speech.<br>
<br>
It was truly troubling to learn that something I thought outlandish —
making First Amendment defenses against open meeting laws — is not only
being argued, but is being accepted by federal appellate courts. It was
even more troubling to learn that the wrong part of the First Amendment
was being applied, as if a witch doctor rather than a judge were deciding
which charm is more powerful.<br>
<br>
When a school child knows that a meeting of council members is about assembly, not free speech, how else can you explain this?<br>
<br>
Until we deal with this religious use of the First Amendment, we are moving toward a strict scrutiny approach to open meeting laws,
one of the things that local legislators and board members despise the most (in fact, <a href="http://pflugervillepflag.com/2010/12/02/texas-open-meetings-act-lawsuit…; target="”_blank”">several Texas council members have filed another suit</a>, since <i>Rangra</i> was declared moot when its plaintiff left office). Free
speech is being used not to protect the public, but to harm the public by allowing secret assemblies of our representatives where the public cannot exercise <i>its</i> right to free speech.
Is this really what civil libertarians want? Is this what any of us wants?<br>
<br>
For a devoted First Amendment analysis of the <i>Rangra</i> decision, see <a href="http://findarticles.com/p/articles/mi_7755/is_201004/ai_n54367926/" target="”_blank”">Devon Helfmeyr, "Do Public Officials Leave Their Constitutional Rights at the Ballot Box? A Commentary on the Texas Open Meetings Act,"</a> Texas Journal on Civil Liberties and Civil Rights, Spring 2010.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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