First Amendment

5th Circuit Upholds Criminal Penalties Under Texas Open Meeting Law


In a decision hailed as a victory by open government advocates, the 5th U.S. Circuit Court of Appeals has upheld Texas’ open meetings law and the use of criminal penalties for public officials if they conduct government business in secret.

A group of government officials from 15 Texas cities challenged the law in 2009, saying it criminalizes political speech, according to stories by the Associated Press and Houston Chronicle.

The officials worried that talking to a colleague about agenda matters could be considered criminal behavior. Violators of the law could be convicted of a misdemeanor, fined up to $500 and face up to a year in jail.

A federal judge rejected their claims in 2011 and the 5th Circuit upheld that ruling in a unanimous three-judge opinion (PDF).

In its opinion, the 5th Circuit said the 1967 Texas Open Meetings Act promotes disclosure of speech and increases transparency.

“Transparency is furthered by allowing the public to have access to government decision making,” the panel opined. “This is true whether those decisions are made by cogent empirical arguments or coin flips. The private speech itself makes the government less transparent regardless of its message.”

Texas Attorney General Greg Abbott is quoted by the Associated Press as calling the decision “a great victory for democracy and the First Amendment.”

Lawyers for the elected officials tell the Chronicle they plan to ask for a rehearing before the full 5th Circuit.

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