Asgeirsson v. Abbott
| Decision Date | 28 September 2012 |
| Docket Number | No. 11–50441.,11–50441. |
| Citation | 696 F.3d 454 |
| Parties | 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, v. Texas Attorney General, Greg ABBOTT; State of Texas, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
OPINION TEXT STARTS HERE
William Michael McKamie, McKamie Krueger, L.L.P., San Antonio, TX, Dick W. DeGuerin, DeGuerin & Dickson, Houston, TX, Craig T. Enoch (argued), Enoch Kever, P.L.L.C., Austin, TX, for Plaintiffs–Appellants.
Sean Daniel Jordan, Deputy Sol. Gen. (argued), Bill L. Davis, Asst. Atty. Gen., Office of the Atty. Gen., Office of the Sol. Gen., Austin, TX, for Defendants–Appellees.
Scott N. Houston, Texas Municipal League, Austin, TX, for Amici Curiae Texas Municipal League, The South Dakota Municipal League, The National League of Cities, and The Intern. Municipal Lawyers Ass'n.
Daniel D. Domenico, Sol., Office of the Atty. Gen., Denver, CO, for Amici Curiae State of Colorado, State of Alaska, State of Arizona, State of Arkansas, State of Florida, State of Hawaii, State of Idaho, State of Illinois, State of Louisiana, State of Michigan, State of Mississippi, State of Nebraska, State of Nevada, State of New Mexico, and State of North Dakota.
Lucy Ann Dalglish, Reporters Committee for Freedom of the Press, Arlington, VA, for Amici Curiae Reporters Committee for Freedom of the Press, ABC, Inc., American Society of News Editors, Associated Press, Association of Capitol Reporters and Editors, Atlantic Media, Inc., Bay Area News Group, Daily News, L.P., E.W. Scripps Co., First Amendment Coalition, Hearst Corp., Lin Television Corp., McClatchy Co., National Press Photographers Ass'n, New York Times Co., Newsweek/Daily Beast Co., L.L.C., North Jersey Media Group, Inc., Radio Television Digital News Ass'n, Reuters America, L.L.C., Seattle Times Company, Society of Professional Journalists, Stephen Media, L.L.C., Time Inc., Tribune Co., USA Today, and Washington Post.
Joseph Robert Larsen, Sedgwick, L.L.P., Houston, TX, for Amicus Curiae Freedom of Information Foundation of Texas.
James C. Ho (argued), Ashley E. Johnson, Gibson, Dunn & Crutcher, L.L.P., Dallas, TX, for Amici Curiae Carlos Amaral, Stephen F. Austin, University Board of Regents, Elizabeth Anderson, Texas Dept. of Housing and Community Affairs (former chair), George Boehme, West University Place City Council, Malachi O. Boyuls, Texas Appraiser Licensing & Certification Board, Jose Cuevas, Texas Alcoholic Beverage Com'n, Nancy DeWitt, Alpine City Council (former member), Maurine Dickey, Dallas County Commissioners Court, Susan Fletcher, Collin County Health Care Foundation Advisory Bd., Melinda Fredricks, Texas Alcoholic Beverage Com'n; Texas Medical Bd. (former member), Vidal Gonzales, Texas Finance Commission (former member), Texas Dept. of Housing & Community Affairs Governing Bd. (former member), Allyson N. Ho, Texas Judicial Council, Joe Jaynes, Collin County Commissioners Court, Ashley E. Johnson, Texas Judicial Council, Bill Jones, Texas A&M University Systems Bd. of Regents (former chairman), Kathleen Krueger, New Braunfels City Council (former member and mayor pro tem.), Brian Loughmiller, McKinney City Council, Randy Mankin, Eldorado City Council (former member and mayor pro tem.), Tim McCallum, Rockwall City Council, Todd Meier, Addison City Council, Joe Meister, Texas Public Finance Authority, John L. Ratcliffe, Heath City Council, Ray Ricchi, McKinney City Council, Wayne Thorburn, State Banking Bd. (former member); Texas AppraiserLicensing & Certification Bd. (former member), Steve Weinberg, Texas Alcoholic Beverage Com'n, Austin–American Statesman, owned by Cox Enterprise, Inc., AH Belo Corp., Belo Corp., Daily Commercial Record, Daily Court Review, Louisiana Press Ass'n, Mississippi Press Ass'n, National Newspaper Ass'n, Texas Ass'n of Broadcasters, and Texas Press Ass'n.
Appeal from the United States District Court for the Western District of Texas.
Before SMITH, GARZA and SOUTHWICK, Circuit Judges.
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 constitutional 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 statute meets intermediate scrutiny; they argue that strict scrutiny applies instead.
TOMA requires the meetings of governmental bodies to be open to the public. It applies to most state and local governing bodies but excludes the Legislature, 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 violation 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 ... during which public business or public policy over which the governmental body has supervision or control is discussed ....” Tex. Gov't Code Ann. § 551.001. Incidental discussion of public business at ceremonial events, conventions, or social functions is then carved from the definition. Plaintiffs contend that that definition 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
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 unconstitutionality. 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 precedent. 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 language, this court has consistently held that vacated opinions are not precedent,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.
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 because the applicability of the regulation depends on the content of the speech. A statute that appearscontent-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 Theatres, Inc., 475 U.S. 41, 47–48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986).
In Playtime Theatres, the Court upheld a zoning ordinance that was facially 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”—such as crime and lowered property values—that tended to accompany such theaters. Id. at 48, 106 S.Ct. 925. The Court concluded that the “ordinance is completely consistent with [the] definition of ‘content-neutral’ speech regulations 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 of the law or regulation,6 and this court has consistently employed that test. 7
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, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987)). That formulation, however, does not accurately state the law.
First, it is dictum and...
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