5th Circuit: Garcetti doesn’t apply to elected officials’ speech
Is elected officials’ speech more like private citizens’ or other public employees’?
A federal appeals court recently answered this question when it decided a case that arose out of a challenge to Texas’ open-meetings law.
A three-judge panel of the 5th U.S. Circuit Court of Appeals determined in Rangra v. Brown that a lower court erred in finding that elected officials’ speech can be limited to the same degree as that of public employees under the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos.
The controversy began in 2004 when members of the Alpine City Council, including Avinash Rangra and Anna Monclova, e-mailed each other about whether to call a meeting to consider a public contract matter. Prosecutors charged Rangra and Monclova with violating the Texas Open Meetings Act. TOMA provides in part: “A member of a governmental body commits an offense if a closed meeting is not permitted under this chapter and the member knowingly: (1) calls or aids in calling or organizing the closed meeting, whether it is a special or called closed meeting.”
The district attorney later dismissed the charges, but Rangra and Monclova sued in federal court on First Amendment grounds. They sought a declaratory judgment that the criminal-law provisions in TOMA violated the First Amendment, contending those sections were unconstitutionally overbroad, vague and impermissible content-based restrictions on speech.
In November 2006, U.S. District Judge Robert Junell rejected the plaintiffs’ claims based on Garcetti v. Ceballos, in which the high court held that public officials have no First Amendment rights for claims arising out of their official, job-related speech. “For purposes of determining what constitutes protected speech under the First Amendment, there is no meaningful distinction among public employees, appointed public officials and elected public officials,” Junell wrote. He concluded that because Rangra and Monclova spoke as members of the council, they engaged in official job-duty speech and, thus, had no First Amendment protection.
Rangra and Monclova appealed to the 5th Circuit, which reversed Junell’s decision in its April 24 opinion. The appeals court, in an opinion by Judge James L. Dennis, determined that the district court “mistakenly concluded that elected officials’ speech made pursuant to their official duties is totally unprotected by the First Amendment.”
Dennis noted that decisions by the Supreme Court “demonstrate that the First Amendment’s protection of elected officials’ speech is robust and no less strenuous than that afforded to the speech of citizens in general.” He cited the Court’s decisions in Bond v. Floyd (1966), which upheld the right of then Georgia state Rep. Julian Bond’s right to make critical statements of U.S. foreign policy, and Republican Party of Minnesota v. White (2002), which refused to apply public-employee precedents to a regulation of Minnesota judicial candidates’ speech.
Instead, the 5th Circuit said that the lower court, on remand, must apply traditional First Amendment analysis to the criminal-law provisions of TOMA. The 5th Circuit reasoned that these provisions were content-based restrictions on speech that must pass strict scrutiny — the highest form of judicial review. In First Amendment jurisprudence, content-based laws — laws that define speech by reference to its content — are subject to strict scrutiny, while content-neutral laws are subject to intermediate scrutiny.
The 5th Circuit did note that just because strict scrutiny applies, it does not necessarily mean that TOMA’s criminal-law provisions are unconstitutional. That decision will have to wait for a full-fledged First Amendment analysis by the district court. What is clear is that the 5th Circuit prohibited the application of Garcetti to elected officials’ speech.