Case: 11-50441 Document: 00511998304 Page: 1 Date Filed: 09/25/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 25, 2012
No. 11-50441
Lyle W. Cayce
Clerk
DIANA ASGEIRSSON, Alpine Council Member;
ANGIE BERMUDEZ, Alpine Council Member;
JAMES FITZGERALD, Alpine Council Member;
JIM GINNINGS, Wichita Falls Council Member;
VICTOR GONZALEZ, Pflugerville Council Member;
RUSSELL C. JONES, Sugar Land Council Member;
LORNE LIECHTY, Heath Texas Council Member;
MEL LEBLANC, Arlington Texas Council Member;
A.J. MATHIEU, Joshua Texas Council Member;
JOHANNA NELSON, Alpine Texas Council Member;
TODD PEARSON, Mayor of Rockport Texas;
ARTHUR REYNA, Leon Valley Council Member;
CHARLES WHITECOTTON, Alderman, Whiteboro Texas;
HENRY WILSON, Hurst Texas Council Member;
KEVIN WILSON, Bellmead Texas Council Member,
Plaintiffs-Appellants
versus
TEXAS ATTORNEY GENERAL, GREG ABBOTT; STATE OF TEXAS,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
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No. 11-50441
Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Plaintiffs, who are local government officials, sued seeking a declaration
that a provision of the Texas Open Meetings Act (“TOMA”) violates the First
Amendment. Specifically, they contend that Texas Government Code § 551.144
is a content-based restriction on political speech, is unconstitutionally vague,
and is overbroad. They seek declaratory and injunctive relief, pursuant to
42 U.S.C. § 1983, that Section 551.144 may not be enforced.
After a bench trial, the district court held that Section 551.144 is constitu-
tional because it is not vague or overbroad, it does not restrict speech based on
its content, it requires disclosure rather than restricts speech, and it satisfies the
intermediate-scrutiny standard. Asgeirsson v. Abbott, 773 F. Supp. 2d 684 (W.D.
Tex. 2011). The court held in the alternative that the statute survives strict
scrutiny. Plaintiffs appeal each of those rulings except the ruling that the stat-
ute meets intermediate scrutiny; they argue that strict scrutiny applies instead.
I.
TOMA requires the meetings of governmental bodies to be open to the pub-
lic. It applies to most state and local governing bodies but excludes the Legis-
lature, the Governor, mayors, and other executive policymakers. As part of the
mechanism to enforce the open-meetings requirement, Section 551.144 prohibits
members of covered governing bodies from knowingly participating in a closed
meeting, to organize a closed meeting, or to close a meeting to the public. A vio-
lation is a misdemeanor punishable by a fine of $100-500, confinement in jail for
one to six months, or both.
Most significant for First Amendment purposes is that TOMA defines a
“meeting” as “a deliberation between a quorum of a governmental body . . . dur-
2
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ing which public business or public policy over which the governmental body has
supervision or control is discussed . . . .” TEX. GOV’T CODE ANN. § 551.001. Inci-
dental discussion of public business at ceremonial events, conventions, or social
functions is then carved from the definition. Plaintiffs contend that that defini-
tion has the effect of criminalizing political speech based on content. We agree
with the district court, however, that TOMA is a content-neutral time, place, or
manner restriction, so we affirm.1
II.
Plaintiffs argue that the issue of whether strict scrutiny applies to TOMA
was foreclosed by a 2009 Fifth Circuit opinion that concludes that the statute is
a content-based restriction on speech and must be subjected to strict scrutiny.
In 2006, two members of the Alpine City Council sued, alleging TOMA’s uncon-
stitutionality. The district court upheld the statute, but a panel of this court
reversed, concluding that strict scrutiny applied. We granted rehearing en banc,
vacating the panel opinion, then dismissed the appeal as moot.2 The district
court a quo concluded that the panel opinion in Rangra is not controlling prece-
dent. Plaintiffs maintain, however, that it is still controlling, because the
en banc court never reached the merits. They claim that the grant of rehearing
en banc merely stays the mandate.
Fifth Circuit Rule 41.3 states, “Unless otherwise expressly provided, the
granting of a rehearing en banc vacates the panel opinion and judgment of the
court and stays the mandate.” Although we need not go beyond that plain
1
Because the issues are questions of law, we review them de novo. See Ctr. for Individ-
ual Freedom v. Carmouche, 449 F.3d 655, 662 (5th Cir. 2006).
2
Rangra v. Brown, 566 F.3d 515, 526-27 (5th Cir.), vacated by 576 F.3d 531 (5th Cir.)
(per curiam) (granting rehearing en banc), appeal dismissed as moot, 584 F.3d 206 (5th Cir.
2009) (en banc) (per curiam).
3
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language, this court has consistently held that vacated opinions are not prece-
dent,3 and it has done so even where the court granting en banc review later
loses its quorum.4 Thus, Rangra is not binding precedent.
III.
Plaintiffs claim that Section 551.144 is content-based because it applies
only to speech regarding “public policy over which the governmental body has
supervision or control.”5 A regulation is not content-based, however, merely
3
See Asociacion Nacional de Pescadores a Pequena Escala o Artesanales v. Dow
Quimica de Colombia S.A., 988 F.2d 559, 565 (5th Cir. 1993) (stating that a particular panel
opinion “was vacated for rehearing en banc and then settled [and] [a]ccordingly . . . is not
precedent”).
4
See Comer v. Murphy Oil USA, 607 F.3d 1049, 1055 (5th Cir. 2010) (en banc) (per cur-
iam), petition for writ of mandamus denied sub nom. In re Comer, 131 S. Ct. 902 (2011); see
also United States ex rel. Marcy v. Rowan Cos., 520 F.3d 384, 389 (5th Cir. 2008) (stating that
Fifth Circuit Rule 41.3 operates “automatically [to] vacate[]” panel opinions and render them
non-precedential); Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 864 n.12 (5th Cir.
2004) (“[T]he panel opinion was vacated by the grant of en banc rehearing and is not
precedential.”).
5
The alleged content-based portion of the statute is in the definition of “meeting,”
which Section 551.001 defines as
(A) a deliberation between a quorum of a governmental body, or between a
quorum of a governmental body and another person, during which public busi-
ness or public policy over which the governmental body has supervision or con-
trol is discussed or considered or during which the governmental body takes for-
mal action; or
(B) except as otherwise provided by this subdivision, a gathering:
(i) that is conducted by the governmental body or for which the
governmental body is responsible;
(ii) at which a quorum of members of the governmental body is
present;
(iii) that has been called by the governmental body;
(continued...)
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because the applicability of the regulation depends on the content of the speech.
A statute that appears content-based on its face may still be deemed content-
neutral if it is justified without regard to the content of the speech. See Renton
v. Playtime Theaters, Inc., 475 U.S. 41, 47-78 (1986).
A.
In Playtime Theaters, the Court upheld a zoning ordinance that was faci-
ally content-based because it applied only to theaters showing sexually-explicit
material. The Court reasoned that the regulation was content-neutral because
it was not aimed at suppressing the erotic message of the speech but instead at
the “secondary effects”SSsuch as crime and lowered property valuesSSthat tended
to accompany such theaters. Id. at 48. The Court concluded that the “ordinance
is completely consistent with [the] definition of ‘content-neutral’ speech regula-
tions as those that ‘are justified without reference to the content of the regulated
speech.’” Id. Content-neutrality has continued to be defined by the justification
(...continued)
and
(iv) at which the members receive information from, give infor-
mation to, ask questions of, or receive questions from any third
person, including an employee of the governmental body, about
the public business or public policy over which the governmental
body has supervision or control.
The term does not include the gathering of a quorum of a governmental body at
a social function unrelated to the public business that is conducted by the body,
or the attendance by a quorum of a governmental body at a regional, state, or
national convention or workshop, ceremonial event, or press conference, if for-
mal action is not taken and any discussion of public business is incidental to the
social function, convention, workshop, ceremonial event, or press conference.
The term includes a session of a governmental body.
5
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of the law or regulation,8 and this court has consistently employed that test.9
Plaintiffs propose a different test: “A regulatory scheme that requires the
government to ‘examine the content of the message that is conveyed’ is content-
based regardless of its motivating purpose.” Serv. Employees Int’l Union, Local 5
v. City of Hous., 595 F.3d 588, 596 (5th Cir. 2010) (quoting Ark. Writers’ Project,
Inc. v. Ragland, 481 U.S. 221, 230 (1987)). That formulation, however, does not
accurately state the law.
First, it is dictum and conflicts with the analysis the panel ultimately
used. The panel went on to determine content-neutrality according to the pur-
pose of the regulations in question, ultimately finding them to be content-neu-
tral. Id. at 600, 602. Second, the opinion cites no authority supporting the last
clause of the test, “regardless of its motivating purpose.” Arkansas Writers’ Pro-
ject, the case cited at the end of the test, does not hold that motivating purpose
is irrelevant to content-neutrality; that case is cited because it contains the
language in the quotation, “examine the content of the message that is con-
veyed.” Finally, the test contradicts Supreme Court precedent and other Fifth
Circuit opinions that determine content-neutrality according to the purpose of
the regulation, as described above.
8
See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (stating that “[t]he
principal inquiry in determining content neutrality, in speech cases generally and in time,
place, or manner cases in particular, is whether the government has adopted a regulation of
speech because of disagreement with the message it conveys . . . . The government’s purpose
is the controlling consideration.”); Colorado v. Hill, 530 U.S. 703, 719 (2000); Simon & Schus-
ter, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 122 (1991).
9
See, e.g., Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 510 (5th Cir. 2009);
Pruett v. Harris Cnty. Bail Bond Bd., 499 F.3d 403, 409 n.5 (5th Cir. 2007); Illusions-Dall. Pri-
vate Club, Inc. v. Steen, 482 F.3d 299, 308 (5th Cir. 2007); Fantasy Ranch Inc. v. City of Arling-
ton, Tex., 459 F.3d 546, 554-56 (5th Cir. 2006); Brazos Valley Coal. for Life, Inc. v. City of
Bryan, Tex., 421 F.3d 314, 326-27 (5th Cir. 2005); de la O v. Hous. Auth. of City of El Paso,
Tex., 417 F.3d 495, 503 (5th Cir. 2005); N.W. Enters. Inc. v. City of Hous., 352 F.3d 162, 174
(5th Cir. 2003); Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288, 292 (5th Cir. 2003);
Horton v. City of Hous., 179 F.3d 188, 193 (5th Cir. 1999).
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The best support plaintiffs offer for their contention that content-
neutrality is determined without examining the purpose of the regulation is
Burson v. Freeman, 504 U.S. 191 (1992), which upheld a statute that prohibited
the solicitation of votes within one hundred feet of a polling place. The plurality
sustained the statute after finding that it satisfied strict scrutiny, but it so
decided without discussing the purpose of the speech; the plurality merely stated
that the regulation was facially content-based.10 Because the plurality ulti-
mately found that the statute satisfied strict scrutiny, however, it may have con-
sidered an in-depth purpose analysis to be unnecessary.
Moreover, part of the reason the Court applied exacting scrutiny in Free-
man is that the statute’s prohibition applied to speech in a public, not private,
forum.11 The prohibition in TOMA is applicable only to private forums and is
designed to encourage public discussion, whereas the prohibition in the statute
in Freeman operated to discourage public discussion. Therefore, Freeman does
not stand for the proposition that the regulation’s justification is not the controll-
ing factor in determining content-neutrality.
B.
Regarding content-neutral justification, the district court found that Sec-
tion 551.144’s purpose is to control the secondary effects of closed meetings. The
court opined that closed meetings (1) prevent transparency; (2) encourage fraud
10
Freeman, 504 U.S. at 197 (“The Tennessee restriction under consideration, however,
is not a facially content-neutral time, place, or manner restriction. Whether individuals may
exercise their free speech rights near polling places depends entirely on whether their speech
is related to a political campaign.”).
11
See id. (“[T]he 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.” (emphasis added); id. at 198 (“As a facially content-based restriction on politi-
cal speech in a public forum, [the state statute] must be subjected to exacting scrutiny[.]”)
(emphasis added).
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and corruption; and (3) foster mistrust in government. Those justifications are
unrelated to the messages or ideas that are likely to be expressed in closed meet-
ings. The allegedly content-based requirementSSthat the speech concern public
policySSis relevant, because only that speech would have the effects listed above.
If a quorum of a governing body were to meet in secret and discuss knitting or
other topics unrelated to their powers as a governing body, no harm would occur.
This situation is analogous to Playtime Theaters, in which only adult movie the-
aters attracted crime and lowered property valuesSSbut not because the ideas
or messages expressed in adult movies caused crime.
The instant case is unlike Boos v. Berry, 485 U.S. 312 (1988), in which the
Court struck down an ordinance that restricted criticism of foreign governments
near their embassies. The government argued that the ordinance was justified
by the need to protect the dignity of foreign diplomatic personnel. Id. at 321
(plurality opinion). Justice O’Connor distinguished the case from Playtime Thea-
ters because the “secondary effect” was a direct result of the message or idea in
the speech. Id. Foreign diplomats were offended because of the criticism’s mes-
sage.
Here, government is not made less transparent because of the message of
private speech about public policy: Transparency is furthered by allowing the
public to have access to government decisionmaking. 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.
The statute is therefore content-neutral.
Plaintiffs cite Brown v. Entertainment Merchants Association, 131 S. Ct.
2729 (2011), to support their argument that TOMA is too underinclusive to be
content-neutral because it does not cover the Legislature, Governor, mayors, or
other executive policymakers. The Court rejected the state’s arguments that a
statute restricting the sale of violent video games to minors was justified by a
8
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content-neutral purpose. In doing so, the Court used the statute’s underinclu-
siveness to reject the state’s asserted content-neutral justification for the law.
Id. at 2740. Thus, the underinclusiveness was merely evidence of the justifica-
tion rather than an independent cause of unconstitutionality. Here, there is lit-
tle reason to think the state is suppressing private speech for any reason other
than the content-neutral goals listed above. Accordingly, Entertainment Mer-
chants does not counsel in favor of unconstitutionality.
Plaintiffs also argue that TOMA is content-based because it is identity-
basedSSit applies only to speakers who are members of governmental bodies.
This contention is based on a misreading of Citizens United v. Federal Election
Commission, 130 S. Ct. 876 (2010), in which the Court struck down a statute
restricting the political donations of corporations and labor unions. The Court
found that the statute’s restriction to particular speakers was meant to disfavor
the views of those speakers, evidencing a content-based purpose. Id. at 888-89.
Here, the statute does not apply to government officials because of any hostility
to their views. Rather, only private speech by government officials lessens gov-
ernment transparency, facilitates corruption, and reduces confidence in govern-
ment. Therefore, the identity-based application of the statute is not evidence of
a content-based purpose.
A separate harm arising from the use of identity concerned the Court in
Citizens United:
By taking the right to speak from some and giving it to others, the
Government deprives the disadvantaged person or class of the right
to use speech to strive to establish worth, standing, and respect for
the speaker’s voice. The Government may not by these means
deprive the public of the right and privilege to determine for itself
what speech and speakers are worthy of consideration.
Id. at 899. This is a concern about public attitudes toward particular ideas and
speakers. It is aimed at regulations that keep speech from reaching the mar-
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ketplace of ideas, and it is therefore inapplicable to statutes that restrict only
private speech. Thus, TOMA’s application to only members of public bodies does
not raise either of the concerns expressed in Citizens United.
Accordingly, TOMA is a content-neutral time, place, or manner restriction,
and as such, it should be subjected to intermediate scrutiny. Turner Broad. Sys.,
Inc. v. F.C.C., 512 U.S. 622, 642 (1994). Plaintiffs do not challenge the district
court’s conclusion that TOMA meets intermediate scrutiny, so we do not reach
that issue. See United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000).
IV.
The district court concluded that TOMA, like the disclosure statute upheld
in Citizens United, requires disclosure of speech but does not suppress it. To
reach the conclusion that the statute does not suppress speech, the court con-
strued TOMA to allow violations to be cured by later disclosure. It appears that
the court misconstrued the statute and that a violation of Section 551.144 could
result in criminal penalties even if the speech were later disclosed. Neverthe-
less, the court’s ultimate conclusion was correct: TOMA is a disclosure statute
and should be upheld in accordance with Citizens United.
For First Amendment purposes, the requirement to make information pub-
lic is treated more leniently than are other speech regulations. The Court has
often upheld disclosure provisions even where it has struck down other regula-
tions of speech in the same statutes. See, e.g., Citizens United, 130 S. Ct. at 914;
Buckley v. Valeo, 424 U.S. 1, 68 (1976). And the Court has generally upheld dis-
closure requirements that are unlikely to subject the speaker to harassment or
persecution. See e.g., United States v. Harriss, 347 U.S. 612, 625 (1954); Doe #1
v. Reed, 130 S. Ct. 2811, 2818-21 (2010). The justification is that disclosure
requirements are less effective in suppressing the underlying ideas of the speech
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that is burdened.12
In Citizens United, the Court upheld the portions of the Bipartisan Cam-
paign Reform Act (“BCRA”) that required political advertisements to contain dis-
claimers indicating who paid for them. Id. Because the Court classified the stat-
ute as a disclosure requirement, it subjected it to exacting rather than strict
scrutiny. Id. The Court reasoned that disclosure requirements do not prevent
individuals from speaking even if they burden the ability to speak. Id. As with
the BCRA, TOMA burdens the ability to speak by requiring disclosure. TOMA’s
disclosure requirement burdens private political speech among a quorum of a
governing body, but it does so in the same way that the BCRA’s disclosure
requirement burdened anonymous political speech in political advertisements.
Neither statute aims to suppress the underlying ideas or messages, and they
arguably magnify the ideas and messages by requiring their disclosure.
Plaintiffs contend that because TOMA punishes private speech, it does not
merely require disclosure. That is a distinction without a difference: To enforce
a disclosure requirement of certain speech, the government must have the ability
to punish its nondisclosure. If there were no punishment for nondisclosure, the
speaker would have no incentive to disclose until the enforcer of the statute pro-
secuted him or obtained an injunction. That would render any disclosure
requirement so arduous to enforce that it would be ineffective.
The district court did not address this issue, because it construed Section
551.144 to allow public officials to avoid punishment by later disclosing their pri-
vate speech. To support that construction, the court cited Burks v. Yarbrough,
157 S.W. 3d 876, 883 (Tex. App.SSHouston [14th Dist.] 2005, no pet.), but that
case dealt not with Section 551.144 but with Section 551.141, which makes acts
12
See Citizens United, 130 S. Ct. at 914 (“[D]isclosure requirements may burden the
ability to speak, but they . . . do not prevent anyone from speaking.”) (internal quotation marks
and citations omitted).
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of governmental bodies voidable when they violate TOMA. Furthermore, the
justification for allowing public officials to cure voidable acts does not apply to
criminal sanctions. If government officials were not able to cure voidable acts
by later disclosure, the body could never again make the same decision once hav-
ing taken that action in private. Because this problem does not arise with crim-
inal sanctions, there is no reason to think the “redo” exception applies to crim-
inal sanctions.
The absence of such a “redo” exception, however, does not prevent TOMA
from being upheld under Citizens United and Buckley. The statute upheld in
Citizens United was violated as soon as a political advertisement was televised
without the required disclaimer. See Citizens United, 130 S. Ct. at 914. In
Buckley, there is no indication that violations of the disclosure requirements
were curable by later disclosure. Furthermore, violations of that disclosure stat-
ute were punishable by a fine of up to $1,000, a year in prison, or bothSStwice
the maximum prison term and fine as in Section 551.144. See Buckley, 424 U.S.
at 64. Therefore, the fact that TOMA is enforced with penalties other than
requiring disclosure does not prevent it from being treated as a disclosure
requirement for First Amendment purposes.
Finally, the plaintiffs contend that, even if Section 551.144 is treated as
a disclosure requirement, it is unconstitutional because it subjects them to har-
assment and persecution by the authorities in the form of criminal prosecution.
“[T]hose resisting disclosure can prevail under the First Amendment if they can
show ‘a reasonable probability that the compelled disclosure will subject them
to threats, harassment, or reprisals from either Government officials or private
parties.’” Doe #1, 130 S. Ct. at 2821 (quoting Buckley, 424 U.S. at 74). Plaintiffs’
argument fails, however, because the harassment they are alleging is the
enforcement of the statute itself. If the enforcement of a disclosure statute
constituted harassment, then all disclosure requirements enforced by penalties
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would be unconstitutional. As noted above, the Court has upheld disclosure
requirements that are enforced by penalties more severe than TOMA’s. See, e.g.,
Buckley, 424 U.S. at 64.
Because Section 551.144 punishes private speech in order to enforce a dis-
closure requirement, it is no less a disclosure requirement than are the statutes
upheld in Citizens United and Buckley. If it were not a content-neutral time,
place, or manner restriction, it would be subject to exacting scrutiny.13 Because
it is content-neutral, however, intermediate scrutiny is the appropriate stan-
dard. Turner Broad., 512 U.S. at 642.
V.
Plaintiffs contend that Section 551.144 is overbroad because it criminalizes
all private speech among a quorum of a governing body that is about public pol-
icy, and most of such speech does not lead to corruption. The plaintiffs’ argu-
ment fails, because it ignores the other purposes of TOMA, such as increasing
transparency, fostering trust in government, and ensuring that all members of
a governing body may take part in the discussion of public business. With
respect to these other goals, TOMA is not overbroad.
For a statute to be overbroad, it must “reach[] a substantial amount of
constitutionally protected conduct.” Vill. of Hoffman Estates v. The Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). “The overbreadth of a statute
must not only be real, but substantial as well, judged in relation to the statute’s
plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). It
is not evident that Section 551.144 is reaching “a substantial amount of constitu-
13
Citizens United, 130 S. Ct. at 914, defines exacting scrutiny as requiring “a substan-
tial relation between the disclosure requirement and a sufficiently important government
interest.” To withstand such scrutiny, “the strength of the governmental interest must reflect
the seriousness of the actual burden on First Amendment rights.” Doe #1, 130 S. Ct. 2811
(2010) (citing Davis v. Fed. Election Comm’n, 554 U.S. 724, 128 S. Ct. 2759, 2775 (2008)).
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tionally protected speech,” because plaintiffs offer no support for the proposition
that government officials have a constitutional right to discuss public policy
among a quorum of their governing body in private. Furthermore, the speech
the statute does reach is within its “plainly legitimate sweep” in fostering gov-
ernment transparency, trust in government, and participation by all elected
officials.
Because Section 551.144 reaches only private discussion of public business
among a quorum of a governing body, plaintiffsSSto show overbreadthSSmust
demonstrate that they have a constitutional right to such speech. They offer no
support for that proposition, and there is reason to think that the First Amend-
ment does not protect the right of government officials to deliberate in private,
given that it sometimes requires them to open their proceedings to the public.
The public’s right of access extends at least to criminal proceedings.14 The
justification for this right of access, however, extends to government affairs gen-
erally: “[A] major purpose of [the First] Amendment was to protect the free dis-
cussion of governmental affairs” and “to ensure that the individual citizen can
effectively participate in and contribute to our republican system of self-govern-
ment.” Globe, 457 U.S. at 604 (quotations omitted). It makes little sense for the
First Amendment to require states to open their criminal proceedings while pro-
hibiting them from doing so with their policymaking proceedings. Therefore,
Section 551.144 does not prohibit constitutionally protected speech.
Even if the plaintiffs were able to show that TOMA reaches a substantial
amount of protected speech, they have not established that its overbreadth is
“substantial as well, judged in relation to the statute’s plainly legitimate sweep.”
14
See Press-Enter. Co. v. Superior Court, 464 U.S. 501, 509-11 (1984); Globe Newspaper
Co. v. Superior Court, 457 U.S. 596, 604-05 (1982); Richmond Newspapers, Inc. v. Virginia, 448
U.S. 555, 580-81 (1980).
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Broadrick, 413 U.S. at 615. They offer only one example15 of a situation in which
local government officials have a legitimate reason to discuss public business pri-
vately: when the City of Hurst was considering the prohibition of a then-legal
drug and did not want to disclose where it was being sold. The plaintiffs point
out that this speech does not lead to corruption, and they conclude that it is thus
outside TOMA’s legitimate sweep.
That notion fails, because it ignores TOMA’s other goals apart from reduc-
ing corruption. Having that discussion privately would decrease government
transparency, and the state has determined that the benefits of making these
discussions public outweigh any harm done by the disclosure of information.
Thus, the plaintiffs have not shown that TOMA reaches outside its plainly legiti-
mate sweep.
15
In its brief as amicus curiae, the Texas Municipal League offers other situations in
which TOMA arguably could prohibit constitutionally-protected speech. For example, amicus
mentions a situation in which a city council member is prohibited from attending a civic event
at which a fellow member who is running for re-election will be speaking about public-policy
issues. Amicus argues that that is prohibited, because it is a quorum discussing government
policy at an event not open to the general public.
The potential situations listed, however, are not from actual cases but are only exam-
ples of advice attorneys have given to local government officials. Furthermore, such broad
interpretations of the law are suspect, given that TOMA appears to exclude such gatherings
from its definition of “meeting”:
[“Meeting”] does not include the gathering of a quorum of a governmental body
at a social function unrelated to the public business that is conducted by the
body, or the attendance by a quorum of a governmental body at a regional,
state, or national convention or workshop, ceremonial event, or press confer-
ence, if formal action is not taken and any discussion of public business is inci-
dental to the social function, convention, workshop, ceremonial event, or press
conference.
TEX. GOV’T CODE § 551.001. Furthermore, narrower constructions of statutes are preferable
in overbreadth cases, because speech burdened by broader interpretations can be protected
by as-applied challenges. See New York v. Ferber, 458 U.S. 747, 773-74 (1982).
15
Case: 11-50441 Document: 00511998304 Page: 16 Date Filed: 09/25/2012
No. 11-50441
VI.
Plaintiffs claim that TOMA is unconstitutionally vague because it is so
unclear that public officials need an educational course to comply with it, and
even lawyers that specialize in TOMA often cannot predict its interpretation.
Vagueness is necessarily a matter of degree, and plaintiffs have not shown that
TOMA is as vague as the statutes that have been found unconstitutional. Fur-
thermore, neither of the issues plaintiffs point to implicates the underlying pur-
pose of the vagueness doctrine: preventing government from chilling substantial
amounts of speech and facilitating discriminatory and arbitrary enforcement.
The concern underlying the vagueness doctrine is that citizens will not be
able to predict which actions fall within the statute, leading to arbitrary and dis-
criminatory enforcement. See Kolender v. Lawson, 461 U.S. 352, 357-58 (1983).
Where there are few guidelines for the application of a statute, a “standardless
sweep” could allow “policemen, prosecutors, and juries to pursue their personal
predilections.” Id. The speech-restricting laws that the Court has found uncon-
stitutionally vague are indeed standardless.16
In contrast, plaintiffs point to no section of TOMA that is vague on its face.
Plaintiffs’ complaints arise from TOMA’s complexity rather than its vagueness
or lack of standards. A great deal of training may be required to predict the
interpretation of the tax code, for example, but that is not because it is standard-
less or arbitrary. In fact, the vast body of law that causes TOMA to be so com-
plex arguably makes it less vague by providing the necessary standards. Plain-
tiffs do not argue that any of the cases interpreting TOMA conflicts or add ambi-
16
See, e.g., Smith v. Goguen, 415 U.S. 566 (1974) (striking down a statute that prohib-
ited treating the flag “contemptuously”); Baggett v. Bullitt, 377 U.S. 360 (1964) (striking down
a statute that prohibited employment by the state of any “subversive person”); City of Hous.,
Tex. v. Hill, 482 U.S. 451 (1987) (striking down a statute that made it unlawful to “interrupt
any policeman in the execution of his duty”).
16
Case: 11-50441 Document: 00511998304 Page: 17 Date Filed: 09/25/2012
No. 11-50441
guity.17 The fact that plaintiffs point to TOMA as a whole rather than to a par-
ticular ambiguous portion distinguishes their argument from reasoning
expressed by the Supreme Court when striking down statutes for vagueness.
Some ambiguity is unavoidable, and “perfect clarity and precise guidance have
never been required even of regulations that restrict expressive activity.” Holder
v. Humanitarian Law Project, 130 S. Ct. 2705, 2719 (2010) (citation and internal
quotation marks omitted). TOMA is not unconstitutionally vague.
VII.
In summary, TOMA is content-neutral and is not unconstitutionally over-
broad or vague. It is also a disclosure statute, though that does not change the
level of scrutiny, because the statute is content-neutral. The district court prop-
erly applied intermediate scrutiny, and the judgment is AFFIRMED.
17
There are seventy-four sections of TOMA and countless cases interpreting it.
17