Rangra v. Brown

REVISED April 27, 2009

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
April 24, 2009
No. 06-51587
Charles R. Fulbruge III
Clerk
AVINASH RANGRA; ANNA MONCLOVA

Plaintiffs-Appellants
v.

FRANK D. BROWN, District Attorney; GREGG ABBOTT, Texas Attorney
General

Defendants-Appellees

Appeal from the United States District Court
for the Western District of Texas

Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
The pivotal question presented by this appeal is whether speech of elected
state and local government officials made pursuant to their official duties, like
speech of non-elected public employees, is less protected by the First Amendment
than other speech. The district court held that the First Amendment affords
absolutely no protection to speech by elected officials made pursuant to their
official duties. We disagree. The First Amendment’s protection of elected
officials’ speech is full, robust, and analogous to that afforded citizens in general.
Furthermore, when a state seeks to restrict the speech of an elected official on
 No. 06-51587

the basis of its content, a federal court must apply strict scrutiny and declare
that limitation invalid unless the state carries its burden to prove both that the
regulation furthers a compelling state interest and that it is narrowly tailored
to serve that interest. In the present case, because the district court dismissed
the elected officials’ challenge to a state statute that regulates their speech on
the basis of its content without applying the required strict scrutiny analysis, we
reverse the district court’s judgment and remand the case for the performance
of that task.
I.
The plaintiffs, elected city council members, were indicted in state court
for violations of the criminal provisions of the Texas Open Meetings Act
(“TOMA”)1 by acting as a quorum in exchanging private emails discussing
whether to call a council meeting to consider a public contract matter. After
prosecuting the charges for several months, the district attorney dismissed them
without prejudice. The plaintiffs, alleging fear of future prosecutions and undue
restriction of their First Amendment speech rights, brought this § 1983 action
in federal district court for declaratory and injunctive relief against the state
attorney general and the district attorney, challenging as content-based speech
regulations the criminal provisions of TOMA. The district court dismissed the
plaintiffs’ claims, holding that under Garcetti v. Ceballos, 547 U.S. 410 (2006),
elected officials, like public employees, enjoy no First Amendment protection of
their speech made pursuant to their official duties. The plaintiffs appealed and
we now reverse and remand the case to the district court for further proceedings.

1
TEX. GOV’T CODE ANN. § 551.001 et seq. (Vernon 2007).

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II.
Defendants assert that this case is nonjusticiable because the plaintiffs
lack standing and their claims are moot. We agree with the district court that
the plaintiff Mr. Rangra has standing, and we conclude that the case is not
moot.2
To establish standing, the plaintiff must demonstrate injury, causation,
and redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
It is well established that a credible threat of present or future criminal
prosecution will confer standing. See, e.g., Virginia v. Am. Booksellers Ass’n,
Inc., 484 U.S. 383, 392-93 (1988) (holding that the injury-in-fact requirement
was met, in part, because “plaintiffs have alleged an actual and well-founded
fear that the law will be enforced against them”); Steffel v. Thompson, 415 U.S.
452, 459 (1974) (“[I]t is not necessary that [a party] first expose himself to actual
arrest or prosecution to be entitled to challenge a statute that he claims deters
the exercise of his constitutional rights.”); Doe v. Bolton, 410 U.S. 179, 188-89
(1973). This is because a credible threat of present or future prosecution is an
injury sufficient to confer standing, even if there is no history of past
enforcement, see Bolton, 410 U.S. at 188, and a speaker who fears prosecution
may engage in self-censorship, which is itself another injury, see Am.
Booksellers, 484 U.S. at 392 (“[T]he alleged danger of [the challenged] statute is,

2
The record reflects that Mr. Rangra is still a member of the city council, although Ms.
Monclova may not be. A case is not moot as long as a live controversy exists between at least
one plaintiff and one defendant. See Cutter v. Wilkinson, 544 U.S. 709, 712 n.1 (2005); 13B
CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE &
PROCEDURE § 3533.1 n.18 (3d ed. 2008). Consequently, we need not address standing with
respect to Ms. Monclova. To the extent the issue remains open, we leave its consideration and
determination to the district court on remand.

3
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in large measure, one of self-censorship.”); see also Ashcroft v. ACLU, 542 U.S.
656, 670-71 (2004) (“Where a prosecution is a likely possibility . . . speakers may
self-censor rather than risk the perils of trial. There is a potential for
extraordinary harm and a serious chill upon protected speech.”).
“The standard – encapsulated in the phrase ‘credible threat of prosecution’
– is quite forgiving.”3 “[W]hen dealing with . . . statutes that facially restrict
expressive activity by the class to which the plaintiff belongs, courts will assume
a credible threat of prosecution in the absence of compelling contrary evidence.”4
The district court held that the plaintiff established standing by
demonstrating injury in fact, causation, and redressability through self-
censorship out of fear of prosecution under TOMA.5 We agree. The plaintiff’s
affidavits and trial testimony show that he has self-censored his speech to avoid
prosecution under TOMA6 and thereby established injury.7 Moreover, the

3
N. H. Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 14 (1st Cir. 1996)
(citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 301 (1979)).
4
Gardner, 99 F.3d at 15 (citing Babbitt, 442 U.S. at 301-02; Bolton, 410 U.S. at 188;
Am. Booksellers, 484 U.S. at 392-93; Chamber of Commerce of U.S. v. FEC, 69 F.3d 600,
603-04 (D.C. Cir. 1995); Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir. 1987)).
5
See Rangra v. Brown, No. P-05-CV-075, 2006 WL 3327634, at *4 (W.D. Tex. Nov. 7,
2006); see also Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 659 (5th Cir. 2006).
6
For example, Rangra’s affidavit states the following:

I am still a member of the Alpine City Council. I still want to talk to and
discuss public matters with my fellow elected city council members. I would like
to communicate with city councilors, and the public, by email, regular mail,
telephone, and directly. Because of Mr. Brown’s prosecution of me and my
fellow councilors, I am afraid to do this. I am afraid to exercise my First
Amendment rights to communicate with my fellow councilors, and the public.
I am afraid that if I talk to anyone about public matters, except at a city council
meeting, I could be indicted and face a criminal prosecution. This threat to me
is ongoing and real. But for this threat, I would exercise my First Amendment

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plaintiff has alleged threats of prosecution that cannot be characterized as
“imaginary or speculative.” See Steffel, 415 U.S. at 459. He has been indicted
and prosecuted for his email discussion of setting up a city council meeting
pertaining to council business, and the Texas Attorney General has warned that
the speech the plaintiff claims is constitutionally protected and for which he has
been indicted, viz., communications, including emails, discussing public business
or public policy, is subject to future prosecution.8 The prosecution of the plaintiff
for his email communications is ample demonstration that his concern with
future indictment and prosecution is not “chimerical.” See id. (citing Poe v.
Ullman, 367 U.S. 497, 508 (1961)). In these circumstances, it is not necessary
that the plaintiff first expose himself to actual arrest, indictment, or prosecution
to be entitled to challenge a statute that he claims deters the exercise of his
constitutional rights. See id. (citing Epperson v. Arkansas, 393 U.S. 97 (1968)).
Because the reasons for the plaintiff’s standing continue to exist, we also
reject defendants’ argument that the case is moot.9

rights to communicate with the voters and public officials.
7
See, e.g, Am. Booksellers, 484 U.S. at 392; Ashcroft v. ACLU, 542 U.S. at 670-71.
8
See, e.g., Op. Tex. Att’y Gen. JC-0307 (2000).
9
To avoid mootness “[t]he requisite personal interest that must exist at the
commencement of the litigation [to give rise to standing] must continue throughout its
existence,” i.e., the controversy underlying the lawsuit must persist. Arizonans for Official
English v. Arizona, 520 U.S. 43, 68 n.22 (1997) (quoting U. S. Parole Comm’n v. Geraghty, 445
U.S. 388, 397 (1980)).

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III.
The plaintiffs challenge the criminal provisions of TOMA as state
regulations imposing an invalid content-based restriction of free speech.10 The
Supreme Court has held that the strict scrutiny test governs challenges for
assessing laws that regulate speech on the basis of its content.11
Strict scrutiny, a formula crafted by the Supreme Court for implementing
constitutional values, is one of the most important elements of modern
constitutional law.12 Strict scrutiny varies from ordinary scrutiny by imposing
three hurdles on the government. It shifts the burden of proof to the
government, requires the government to prove that its action or regulation
pursues a compelling state interest, and demands that the government prove

10
“As a matter of constitutional tradition, in the absence of evidence to the contrary,
we presume that governmental regulation of the content of speech is more likely to interfere
with the free exchange of ideas than to encourage it.” Reno v. ACLU, 521 U.S. 844, 885 (1997).
Accordingly, content-based speech restrictions are presumed invalid because “[a]ny restriction
on expressive activity because of its content would completely undercut the ‘profound national
commitment to the principle that debate on public issues should be uninhibited, robust, and
wide-open.’” Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96 (1972) (quoting New York Times
Co. v. Sullivan, 376 U.S. 254, 270 (1964)); see also Turner Broad. Sys. v. FCC, 512 U.S. 622,
641 (1994) (“At the heart of the First Amendment lies the principle that each person should
decide for himself or herself the ideas and beliefs deserving of expression, consideration, and
adherence. Our political system and cultural life rest upon this ideal. Government action that
stifles speech on account of its message . . . contravenes this essential right.” (citations
omitted)); Consol. Edison Co. of New York, Inc. v. Pub. Serv. Comm’n., 447 U.S. 530, 538
(1980) (“To allow a government the choice of permissible subjects for public debate would be
to allow that government control over the search for political truth.”).
11
See, e.g., Republican Party of Minn. v. White, 536 U.S. 765, 774-75 (2002); United
States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813-814 (2000); Simon & Schuster, Inc. v.
Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 118 (1991); Sable Commc’ns of Cal.,
Inc. v. FCC, 492 U.S. 115, 126 (1989)
12
See Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267, 1268-69
(2007); Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny,
48 AM. J. LEGAL HIST. 355, 355 (2006).

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that its action or regulation is “narrowly tailored” to further that compelling
interest.13
We agree with the plaintiffs that the criminal provisions of TOMA are
content-based regulations of speech that require the state to satisfy the strict-
scrutiny test in order to uphold them.14 A speech regulation is content-based if
it defines the regulated speech by reference to its content.15 For example, in

13
See Siegel, supra note 12, at 360 (citing ERWIN CHEMERINSKY, CONSTITUTIONAL LAW:
PRINCIPLES AND POLICIES 645, 767, 902-903 (2d ed. 2002)); Fallon, supra note 12, at 1273.
14
See, Ashcroft v. ACLU, 542 U.S. at 665 (“When plaintiffs challenge a content-based
speech restriction, the burden is on the Government to prove that the proposed alternatives
will not be as effective as the challenged statute.”); White, 536 U.S. at 774 (applying strict
scrutiny to a law prohibiting speech on the basis of its content); Playboy, 529 U.S. at 813 (“If
a statute regulates speech based on its content, it must be narrowly tailored to promote a
compelling Government interest”); Reno, 521 U.S. at 868 (applying “the most stringent review”
to a content-based restriction); Turner Broad., 512 U.S. at 642 (“Our precedents thus apply the
most exacting scrutiny to regulations that suppress, disadvantage, or impose differential
burdens upon speech because of its content”); Burson v. Freeman, 504 U.S. 191, 198 (1992)
(holding that “a facially content-based restriction on political speech . . . must be subjected to
exacting scrutiny: The State must show that the regulation is necessary to serve a compelling
state interest and that it is narrowly drawn to achieve that end” (internal quotation marks
omitted)); R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992) (“Content-based
regulations are presumptively invalid”); Simon & Schuster, 502 U.S. at 116 (“Regulations
which permit the Government to discriminate on the basis of the content of the message cannot
be tolerated under the First Amendment.” (internal quotation marks omitted)); Boos v. Barry,
485 U.S. 312, 321 (1988) (“Our cases indicate that as a content-based restriction on political
speech in a public forum, [the statute prohibiting negative picketing] must be subjected to the
most exacting scrutiny.”); Carey v. Brown, 447 U.S. 455, 461-62 (1980) (applying strict scrutiny
to a content-based restriction); Mosley, 408 U.S. at 95 (“[T]he First Amendment means that
government has no power to restrict expression because of its message, its ideas, its subject
matter, or its content”).
15
See Playboy, 529 U.S. at 811 (“[When] speech . . . is defined by its content . . . the
statute which seeks to restrict it is content based.”); see also White, 536 U.S. at 774 (holding
a statute burdening a category of speech, “speech about the qualifications of candidates for
public office,” to be content-based); Reno, 521 U.S. at 868 (holding that a law prohibiting
transmission of indecent material by means of a telecommunications device to a minor was a
content-based restriction); Burson, 504 U.S. at 197 (“Whether individuals may exercise their
free speech rights near polling places depends entirely on whether their speech is related to a

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Burson v. Freeman, 504 U.S. 191, 196 (1992), the Court found a statute
prohibiting display of political campaign materials within 100 feet of a polling
place to be a content-based speech restriction because “[w]hether individuals
may exercise their free speech rights near polling places depends entirely on
whether their speech is related to a political campaign. The statute does not
reach other categories of speech, such as commercial solicitation, distribution,
and display.” Id. at 197. TOMA § 551.144, which criminalizes the discussion of
public matters by a quorum of public officials when outside of an open meeting,
see Tex. Gov’t Code Ann. §§ 551.001, 551.144(a), is similarly content based
because whether a quorum of public officials may communicate with each other
outside of an open meeting depends on whether the content of their speech refers
to “public business or public policy over which the governmental body has
supervision or control.”16
Furthermore, because TOMA imposes a content-based regulation, we
conclude that the district court was required to apply the strict-scrutiny test and
to make the state carry its burden of proving that the statute pursues a
compelling interest which the law is narrowly tailored to further. The district
court did not perform that task because it mistakenly concluded that elected
officials’ speech made pursuant to their official duties is totally unprotected by
the First Amendment. For this reason, the district court dismissed the plaintiffs’

political campaign. The statute does not reach other categories of speech, such as commercial
solicitation, distribution, and display. This Court has held that the First Amendment’s hostility
to content-based regulation extends not only to a restriction on a particular viewpoint, but also
to a prohibition of public discussion of an entire topic”); Boos, 485 U.S. at 321 (holding that a
prohibition on picket signs critical of a foreign government was content based).
16
TEX. GOV’T CODE ANN. § 551.001 (Vernon 2007).

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claims as not actionable without ever undertaking the strict-scrutiny analysis.
Consequently, we must vacate the district court’s judgment and remand the case
to it for a proper application of the strict scrutiny test. Before doing so, however,
we will explain why the district court erred in assuming that the speech of
elected officials made pursuant to their official duties is entitled to no protection
under the First Amendment.

IV.
The Supreme Court, in Garcetti, held that the First Amendment does not
protect a government employee from discipline based on speech made pursuant
to the employee’s official duties.17 The district court assumed that there is no
meaningful distinction between the speech of elected officials and that of public
employees and held that, under Garcetti, the plaintiffs’ speech pursuant to their
official duties was not protected by the First Amendment.
The district court’s premise that the First Amendment’s protection of
elected officials’ speech is limited just as it is for the speech of public employees,
however, is incorrect. Job-related speech by public employees is clearly less
protected than other speech because the Court has held that government
employees’ speech rights must be balanced with the government’s need to
supervise and discipline subordinates for efficient operations.18 The First

17
See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
18
In Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968), the Court stated that its task
was to balance the free speech rights of government employees with the government’s “interest
. . . as an employer, in promoting the efficiency of the public services it performs through its
employees.” Id. “[T]he State has interests as an employer in regulating the speech of its
employees that differ significantly from those it possesses in connection with regulation of the
speech of the citizenry in general.” Id.

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Amendment does not protect government employees’ job-related speech unless
the speech is about a matter of public concern, “and even then, a government
employee may be fired or disciplined for her speech if the government employer
can show, on balance, that the efficient operation of the office justified the
action.”19 But when the state acts as a sovereign, rather than as an employer,
its power to limit First Amendment freedoms is much more attenuated.20 That
is because a state’s interest in regulating speech as sovereign is “relatively
subordinate . . . [as] [t]he government cannot restrict the speech of the public at
large just in the name of efficiency.”21 Garcetti itself, like the Court’s other
public employee speech cases, recognizes the state’s very limited power as

19
ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1110 (3d ed.
2006); see also Waters v. Churchill, 511 U.S. 661, 668 (1994) (plurality opinion); Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 284 (1977); Pickering, 391 U.S. at 568.
20
See Waters, 511 U.S. at 671-72 (“[T]he government as employer indeed has far
broader powers than does the government as sovereign.” (citing Connick v. Myers, 461 U.S.
138, 147 (1983); Civil Serv. Comm’n v. Letter Carriers, 413 U.S. 548, 564 (1973); Pickering, 391
U.S. at 568)); see also Garcetti, 547 U.S. at 418 (citing Waters, 511 U.S. at 671).
21
Waters, 511 U.S. at 675 (“The key to First Amendment analysis of government
employment decisions, then, is this: The government’s interest in achieving its goals as
effectively and efficiently as possible is elevated from a relatively subordinate interest when
it acts as sovereign to a significant one when it acts as employer. The government cannot
restrict the speech of the public at large just in the name of efficiency. But where the
government is employing someone for the very purpose of effectively achieving its goals, such
restrictions may well be appropriate.”); see also id. at 674-75 (“Rather, the extra power the
government has in this area comes from the nature of the government’s mission as employer.
Government agencies are charged by law with doing particular tasks. Agencies hire employees
to help do those tasks as effectively and efficiently as possible. When someone who is paid a
salary so that she will contribute to an agency’s effective operation begins to do or say things
that detract from the agency’s effective operation, the government employer must have some
power to restrain her. The reason the governor may, in the example given above, fire the
deputy is not that this dismissal would somehow be narrowly tailored to a compelling
government interest. It is that the governor and the governor’s staff have a job to do, and the
governor justifiably feels that a quieter subordinate would allow them to do this job more
effectively.”).

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sovereign to infringe on First Amendment freedoms.22 None of the Supreme
Court’s public employee speech decisions qualifies or limits the First
Amendment’s protection of elected government officials’ speech.23 Contrary to
the district court’s reasoning, there is a meaningful distinction between the First
Amendment’s protection of public employees’ speech and other speech, including
that of elected government officials.
Indeed, the Supreme Court’s decisions demonstrate that the First
Amendment’s protection of elected officials’ speech is robust and no less

22
See Garcetti, 547 U.S. at 418 (“[T]he government as employer indeed has far broader
powers than does the government as sovereign.” (quoting Waters, 511 U.S. at 671)); id. (“A
government entity has broader discretion to restrict speech when it acts in its role as employer,
but the restrictions it imposes must be directed at speech that has some potential to affect the
entity’s operations”); see also authorities cited supra note 19.
23
Garcetti did not expand the scope of the public employee speech limitations to include
elected officials; rather, Garcetti merely carved out a narrow exception to the Supreme Court’s
holdings that a government employer may not discipline or adversely affect public employees
for their speech involving matters of public concern unless the state can prove that the needs
of the government outweigh the speech rights of the employee. In Garcetti, Ceballos, a deputy
district attorney, alleged that he had been subjected to adverse employment actions in
retaliation for engaging in protected speech, viz., for writing an internal memo recommending
the dismissal of a criminal case on the basis of alleged governmental misconduct. See Garcetti,
547 U.S. at 414-15. The Supreme Court concluded that Ceballos’s speech was not protected,
holding that “when public employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employer discipline.” Id. at 421. Thus, the Court
reasoned that when Ceballos spoke pursuant to his official duty he was not speaking as a
citizen on a matter of public concern, and, therefore, his speech was not protected by the First
Amendment. See id. at 423; see also The Supreme Court, 2005 Term, 120 Harv. L. Rev. 273
(2006). As a result, Garcetti created an exception allowing that, where a public employee
speaks pursuant to official duty, the state may restrict this speech without proving that its
management needs outweigh the employee’s freedom of expression. See Garcetti, 547 U.S. at
423.
While Garcetti added a new qualification of public employees’ freedom of expression
recognized by the Court’s long line of cases concerning public employee speech rights, it did
nothing to diminish the First Amendment protection of speech restricted by the government
acting as a sovereign rather than as an employer and did nothing to impact the speech rights
of elected officials whose speech rights are not subject to employer supervision or discipline.

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strenuous than that afforded to the speech of citizens in general. For example,
in the 1960s the Court held in Bond v. Floyd, 385 U.S. 116, 133-35 (1966), that
state action excluding a state representative from membership in the legislature
because of his statements criticizing the policy of the federal government in
Vietnam and the operation of the selective service laws violated his right of free
expression under the First Amendment. In Wood v. Georgia, 370 U.S. 375, 392,
395 (1962), the Court held that out-of-court statements by a sheriff questioning
the advisability of a grand jury investigation into block voting by black citizens
did not present a clear and present danger to the administration of justice, and,
therefore, the use of the contempt power to punish the sheriff for the statements
abridged his right of free speech. The Court emphasized that “[t]he role that
elected officials play in our society makes it all the more imperative that they be
allowed freely to express themselves on matters of current public importance.”
Id. at 395.
Recently, in Republican Party of Minnesota v. White, 536 U.S. 765, 774-75
(2002), the Court held that a state supreme court’s canon of conduct, which
prohibited candidates for judicial election from announcing their views on
disputed legal or political issues, is a content-based regulation of speech; that the
proper test to be applied to determine the constitutionality of such a restriction
is the strict scrutiny test; that the strict scrutiny test requires that the party
defending the content-based restriction has the burden to prove that the
regulation is (1) narrowly tailored to serve (2) a compelling state interest; and
that in order for that party to show that the speech regulation is narrowly
tailored, that party must demonstrate that the regulation does not unnecessarily
circumscribe protected expression. See id. In White, based on the record

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compiled in the district court on cross motions for summary judgment and the
court of appeals’ decision, a majority of the Supreme Court agreed that the
parties defending the speech regulation had failed to carry their burden of
proving that it was narrowly tailored to serve a compelling state interest, and
that the state’s prohibition on judicial candidates’ announcing their legal views
was an unconstitutional abridgement of freedom of speech. See id. Further, the
Court reaffirmed that “‘[t]he role that elected officials play in our society makes
it all the more imperative that they be allowed freely to express themselves on
matters of current public importance.’” Id. at 781-82 (quoting Wood v. Georgia,
370 U.S. at 395).24
Most significantly, this court in Jenevein v. Willing, 493 F.3d 551 (5th Cir.
2007), held that White, 536 U.S. at 765, required us to apply the strict scrutiny
test to determine whether a state judiciary commission’s order censuring an
elected judge’s speech on the basis of its content violated his First Amendment
protected speech rights.25 See Jenevein, 493 F.3d at 557-58. The censure order,

24
Even before White, however, as evinced by the two principal decisions upon which it
relied, the Court had vigorously applied the First Amendment protections through the strict
scrutiny test on behalf of elected officials, candidates for elective offices, and political parties.
See Eu v. S. F. County Democratic Cent. Comm., 489 U.S. 214, 222 (1989); Brown v. Hartlage,
456 U.S. 45, 53-54, 58 (1982).
25
Jenevein’s application of strict scrutiny, in reliance on White, is consistent with the
Supreme Court’s use of that formula to protect the expressive activity of virtually all persons
from unnecessary content-based regulation of speech regarding public matters or governmental
affairs. See, e.g., Consol. Edison Co. of New York, Inc. v. Public Svc. Com’n, 447 U.S. 530,
534-35 (1980) (“This Court has emphasized that the First Amendment embraces at the least
the liberty to discuss publicly and truthfully all matters of public concern” (internal quotation
marks omitted)). In fact, the strict scrutiny test originated in the First Amendment cases of
the 1950s and 1960s before it was adopted in the equal protection cases regarding voting rights
and racial discrimination, with which it is most identified now. See generally Siegel, supra note
12, at 361-381. Throughout the standard’s history, the Court has applied the content-based
strict scrutiny test in service of the “practically universal agreement that a major purpose of

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which disciplined the judge for holding a press conference in which he addressed
alleged abuses of the judicial process by lawyers in a pending case, shut down
all communication between the elected judge and his constituents. See id. at
556-558. Applying the strict scrutiny test prescribed by White, we held that the
censure order, in substantial part, was an unconstitutional content-based
restriction of the elected official’s speech because the state had failed to prove
that it was narrowly tailored to further a compelling state interest. See
Jenevein, 493 F.3d at 559-560.26
In Jenevein, we expressly declined the parties’ invitation to draw upon the
“Pickering - Garcetti line of cases for sorting the free speech rights of employees

[the First] Amendment [is] to protect the free discussion of governmental affairs,” Mills v.
Alabama, 384 U.S. 214, 218 (1966), and “[t]he inherent worth of the speech in terms of its
capacity for informing the public does not depend upon the identity of its source, whether
corporation, association, union, or individual,” First Nat’l Bank of Boston v. Bellotti, 435 U.S.
765, 777 (1978), by protecting the speech by a wide variety of citizens seeking to speak on
matters of public concern. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989) (protecting
protesters wishing to burn the American flag); Boos, 485 U.S. at 321 (protecting individuals
wishing to carry signs critical of foreign governments); Consol. Edison, 447 U.S. at 530
(protecting a public utility company wishing to include in billing envelopes pamphlets
discussing controversial issues) . Thus, our application of strict scrutiny, in Jenevein and here,
to content-based restrictions on elected officials’ speech regarding matters of public business
and concerns fits squarely within the long-held principles of First Amendment jurisprudence.
26
In Jenevein, 493 F.3d at 557-58, we applied strict scrutiny to analyze restrictions on
an elected judge’s speech despite a prior circuit precedent, decided before White, 536 U.S. at
781-82, that analyzed similar restrictions on an elected justice of the peace’s speech under the
Pickering balancing test, see Scott v. Flowers, 910 F.2d 201, 211-12 (5th Cir. 1990). To the
extent that allegiance to the intervening Supreme Court decision in Republican Party causes
Jenevein to conflict with prior circuit precedent in Scott, we are bound to follow the Supreme
Court and apply Jenevein. See, e.g., United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999)
(“[T]his panel is bound by the precedent of previous panels absent an intervening Supreme
Court case explicitly or implicitly overruling that prior precedent.”). Further, Scott v. Flowers
may be read as anticipating White because it noted that the state’s interest in regulating
elected officials’ speech is “much weaker than in the typical public employee situation.” Scott,
910 F.2d at 211.

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elected to state office.”27 We noted that those cases’ “categorical divisions of
public and private speech fail to illuminate the state’s interest in constraining
speech by an elected public official, political speech at the core of the First
Amendment, and its necessity.”28 Further, we noted that an elected official’s
relationship with the state differs from that of an ordinary state employee,
observing “[o]ur ‘employee’ is an elected official, about whom the public is obliged
to inform itself, and the ‘employer’ is the public itself, at least in the practical
sense, with the power to hire and fire. It is true that [the elected official] was an
employee of the state. It is equally true that as an elected holder of state office,
his relationship with his employer differs from that of an ordinary state
employee.”29

Conclusion
Applying the foregoing precepts, we conclude that the district court
incorrectly assumed that the Pickering-Garcetti line of decisions, rather than the
strict scrutiny test as elaborated in White, governs the present case.
Accordingly, we reverse the district court’s judgment and remand the case to it
for the application of the strict scrutiny formula to Tex. Gov’t Code § 551.144.30

27
Jenevein, 493 F.3d at 558 (citing Pickering, 391 U.S. at 563; Garcetti, 547 U.S. at
410).
28
Id. at 557 (citing White, 536 U.S. at 765).
29
Id.; see also id at 558 (“If the State chooses to tap the energy and the legitimizing
power of the democratic process [in the election of judges], it must accord the participants in
that process . . . the First Amendment rights that attach to their roles.”) (quoting White, 536
U.S. at 788).
30
We note that the criminal provision in Tex. Gov’t Code § 551.144 is the only portion
of TOMA at issue in this case and that the district court’s strict scrutiny inquiry should be

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In doing so, we point out, however, that the Supreme Court has rejected “the
notion that strict scrutiny is ‘strict in theory, but fatal in fact.’”31 The fact that
strict scrutiny applies “‘says nothing about the ultimate validity of any
particular law; that determination is the job of the court applying’” that
standard.32

limited to this provision.
31
Adarand Constr’rs, Inc. v. Pena, 515 U.S. 200, 237 (1995) (quoting Fullilove v.
Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring)); see also Johnson v. California,
543 U.S. 499, 515 (2005) (“‘The fact that strict scrutiny applies says nothing about the ultimate
validity of any particular law . . . .’” (quoting Pena, 515 U.S. at 230)); Grutter v. Bollinger, 539
U.S. 306, 326 (2003) (“Strict scrutiny is not strict in theory, but fatal in fact.” (internal
quotation marks omitted)); United States v. Virginia, 518 U.S. 515, 533 n.6 (1996); Adam
Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the
Federal Courts, 59 VAND. L. REV. 793, 795-96 (2006) (finding, based on an empirical study of
“every strict scrutiny decision published by the district, circuit, and Supreme courts between
1990 and 2003,” that “[c]ourts routinely uphold laws when applying strict scrutiny, and they
do so in every major area of law in which they use the test. Overall, 30 percent of all
applications of strict scrutiny — nearly one in three — result in the challenged law being
upheld.”); Siegel, supra note 12, at 394, 401 (“[S]trict scrutiny is a tool to determine whether
there is a cost-benefit justification for governmental action that burdens interests for which
the Constitution demands unusually high protection”); id. (“Tracing strict scrutiny’s roots back
to First Amendment narrow tailoring cases in the 1940s and compelling interest cases in the
1950s and early 1960s, establishes strict scrutiny as part of a constitutional paradigm in
which, even for high-protectionist Justices, no constitutional right was ‘beyond limitation,’ and
none could prevail over an appropriate subordinating governmental interest.” (footnotes
omitted)); Fallon, supra note 12, at 1302-03 (asserting that the Supreme Court has arguably
adopted an interpretation of strict scrutiny as “a weighted balancing test, similar to European
proportionality inquiries, in which a court must ask whether a particular intrusion on
protected liberties, which may be greater or lesser, can be justified in light of its benefits.”
(footnotes omitted)).
32
See Winkler, supra note 31, at 794 (quoting Pena, 515 U.S. at 230).
We emphasize that we remand this matter for the district court to conduct a strict
scrutiny review in the first instance because that inquiry might well require development of
the record beyond its present state, as the state has not yet been afforded an opportunity to
prove that TOMA § 551.144 is narrowly tailored to further a compelling state interest. TOMA
§ 551.144 may indeed survive this strict scrutiny inquiry. Numerous states apparently employ
similarly tailored provisions in their open meetings acts. See ANN TAYLOR SCHWING, OPEN
MEETING LAWS 2d 275, 285 (2000). However, we simply lack the record necessary to make a

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For these reasons, the judgment of the district court is reversed and the
case is remanded to it for further proceedings consistent with this opinion.

strict scrutiny determination here; thus we remand the issue.

17