This entry comes to us courtesy of Sim Israeloff.

Many elected officials in Texas, including most who are elected to city councils and school boards, serve as citizen volunteers without pay.  Newly elected officials are sometimes surprised to find that their actions and speech are now restricted by statutes such as the Texas Open Meetings Act (TOMA). The Fifth Circuit Court of Appeals has now weighed in on whether elected officials carrying out their official duties retain the same First Amendment protections on speech as private citizens.

The Texas Open Meetings Act (TOMA) generally requires that deliberations concerning an issue within the jurisdiction of governmental body must take place in an open meeting after public notice. TEX. GOV’T CODE ANN. § 551.001 et seq. (Vernon 2007).  Private discussions and e-mail exchanges occurring among a quorum of the members of a governmental body may violate TOMA if they involve deliberations about public business or issues that are within the jurisdiction of the governmental body.  Id.

In Rangra v. Brown, No. 06-51587, two city council members from Alpine, Texas, challenged their indictments for criminal violations of TOMA.  The plaintiffs were accused of participating in an exchange of e-mails among four council members (a quorum of the council) discussing whether to call a council meeting to consider a public contract matter.  The council members sued the local district attorney and Texas Attorney General Greg Abbott contending that TOMA’s criminal provisions unconstitutionally impaired their rights of free speech under the First Amendment.

The district court held that elected officials did not have First Amendment protections when speaking pursuant to their official duties, citing the Supreme Court’s 2006 ruling in Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).  In Garcetti the Court held that non-elected government employees are not protected by the First Amendment against discipline based on speech made in connection with their official duties.

The Fifth Circuit disagreed, and held that elected officials have the same rights of free speech as private citizens. The panel of Justices Wiener, Barksdale and Dennis found that Garcetti was not controlling because it dealt with job-related speech by public employees where the state, acting as an employer, disciplined a subordinate and showed that the action was justified by the need for efficient operation of the office.

The Fifth Circuit remanded the case back to the district court to determine the constitutionality of the Act under the "strict scrutiny" test applicable where the First Amendment is involved.  The test provides that a statute that restricts protected speech is not presumed valid.  Instead, the government bears the burden to prove a "compelling state interest" is involved and that the regulation is "narrowly tailored" to further that compelling state interest.

It is anyone’s guess whether the district court, after applying this very strict standard, will ultimately hold parts of TOMA unconstitutional or will find that they meet the test.  But elected officials can take heart with the holding that their public service does not by itself strip them of all First Amendment rights.

Sim Israeloff is chair of Cowles & Thompson‘s Business Litigation Section and serves as Mayor of the Town of Fairview, Texas.