NNA joins media groups to protect FOI

May 2, 2012

NEW ORLEANS—The National Newspaper Association and the Texas, Louisiana and Mississippi Press Associations joined other media organizations in April before the U.S. Court of Appeals in the Fifth Circuit to help protect openness in government.

The law is under challenge by a coalition of public officials from Texas and 17 other states, which argues that open meetings violate the First Amendment rights of elected officials.

Defending the act was the Texas Attorney General and the media group, represented by James Ho, former state solicitor general and now an attorney with Gibson Dunn and Crutcher in Texas.

The case arose from a 2005 criminal indictment of two Alpine, TX, city council members who used electronic mail to discuss a public matter with four of the five city council members. The case was taken to federal court to determine whether the criminal sanctions in the Texas law violated the First Amendment. A federal district court ruled it did not, but a panel of the Fifth Circuit reversed the decision. But because the two challengers had left office, the court then dismissed the case as moot.

Another group of council members from various cities then took up the proceeding, lost yet another appeal and then took the case to the three-judge panel now considering the question.

Texas is unusual in applying criminal penalties for violations of the open meetings act. The city officials argue that the sanctions suppress speech and inhibit open discussion.

But Ho said open discussion is part of the officials’ duty and that the penalties ensure compliance. He pointed out that one effect of the openness requirement is to prohibit officials from excluding from official discussions those colleagues with whom they disagree.

“The Open Meetings Act benefits public officials as well as the people they represent,” he argued. “There are First Amendment interests on both sides. But one side happens to be weak and the other happens to be a strong interest. The plaintiffs here are claiming an interest in secret speech.”

NNA President Reed Anfinson said NNA joined the case and urged the state associations in the Fifth Circuit to also become part of it to help protect openness in government.

“The notion that elected officials have a constitutional right to secrecy offends the very core of the First Amendment, which functions to keep government open and honest. Newspaper journalists across the country understand that if secret discussions are permitted, the people’s business will disappear behind a screen of partisan scheming. We hope the Fifth Circuit sees the dangers of the Alpine public officials’ self-serving and flawed claims.”