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Public Officials Sue for Right to Be Secret

I make no bones about my ferocity in support of open government. I believe religiously in the time-honored words spoken in 1933 by Supreme Court Justice Louis D. Brandeis, "Sunlight is the greatest disinfectant." I write about open meetings and public records issues at my Media Law blog and lobby around them on behalf of my state's newspaper association.

Thus, it should surprise no one that I consider it outrageous that a coalition of Texas municipalities and elected officials have filed a federal lawsuit claiming they have a First Amendment right to conduct the public's business in secret. The lawsuit, filed Monday in federal court in Pecos, by four Texas cities and 15 elected officials, alleges that the Texas Open Meetings Act violates officials' free speech rights by preventing them from speaking in private on issues facing the public.

Law West of the Pecos No, I'm not making this up. And, in fairness, neither are the plaintiffs. Instead, blame it on the 5th U.S. Circuit Court of Appeals. Last April, a three-judge panel reinstated a lawsuit filed by city council members in Alpine, Texas, challenging the open meetings law on First Amendment grounds. In July, the 5th Circuit agreed to rehear the case en banc. But then, in September, the circuit court dismissed the case as moot, leaving the question unresolved.

"We're here to reaffirm the First Amendment," said Dick DeGuerin, the Houston lawyer who represents the plaintiffs in this latest lawsuit. "It chills the ability of an elected official to speak out for fear of prosecution." But courts have consistently interpreted the First Amendment to swing the other way, as Jerry Strickland, a spokesman for Texas Attorney General Greg Abbott, pointed out. "Open-meeting laws have been upheld under the First Amendment by every court in the country that has ever considered the issue," he said.

The officials who filed this lawsuit are in need of a civics lesson, says an editorial in the Austin American-Statesman:

We elect people to enact laws and ordinances. They do so, using our money to enforce those laws and ordinances and to pay for necessary infrastructure.

And that, friends, kind of sums up how our democracy works. It's as clever as it is simple. Undergirding it all is the notion that we, the electors, have an inalienable right to watch as they, the elected, make our laws and spend our money.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, put it best when she said of the lawsuit: "If you don't like the notion of conducting the public's business in public, you shouldn't run for office." Even Judge Roy Bean, the notorious 19th-century Texan who dispensed both law and whiskey from his saloon-turned-courtroom, might have considered this to be the most misguided case west of the Pecos.

Posted by Robert J. Ambrogi on December 16, 2009 at 12:55 PM | Permalink | Comments (0)


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