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 recent blog post — "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, Rangra v. Brown, 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.

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.

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but I do think that the value of protecting the free speech of citizens from being impinged by their government has been replaced by a superstitious and extravagant trust and reverence in free speech for its own sake, separating it from its original purpose.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.

For example, here's a list of the topics in the column on free assembly on the First Amendment Center website:

• Curfews, loitering & freedom of association
• Civil rights & First Amendment
• Abortion protests & buffer zones
• Assembly on private property
• Funeral protests

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.

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.

When a school child knows that a meeting of council members is about assembly, not free speech, how else can you explain this?

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, several Texas council members have filed another suit, since Rangra 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 its right to free speech. Is this really what civil libertarians want? Is this what any of us wants?

For a devoted First Amendment analysis of the Rangra decision, see Devon Helfmeyr, "Do Public Officials Leave Their Constitutional Rights at the Ballot Box? A Commentary on the Texas Open Meetings Act," Texas Journal on Civil Liberties and Civil Rights, Spring 2010.

Robert Wechsler
Director of Research-Retired, City Ethics

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