Rangra v. Brown

• Decision Date: 24 April 2009
• Docket Number: No. 06-51587.,06-51587.
• Citation: 566 F.3d 515
• Parties: Avinash RANGRA; Anna Monclova, Plaintiffs-Appellants, v. Frank D. BROWN, District Attorney; Gregg Abbott, Texas Attorney General, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

566 F.3d 515

Avinash RANGRA; Anna Monclova, Plaintiffs-Appellants, v. Frank D. BROWN, District Attorney; Gregg Abbott, Texas Attorney General, Defendants-Appellees.

No. 06-51587.

United States Court of Appeals, Fifth Circuit.

April 24, 2009.

Arvel Rodolphus Ponton, III (argued), Law Office of Ron Ponton, Alpine, TX, Dick W. DeGuerin (argued), DeGuerin & Dickson, Houston, TX, for Plaintiffs-Appellants.

John Steven Houston (argued), Alpine, TX, for Brown.

Sean Jordan (argued), James C. Todd, Asst. Atty. Gen., Austin, TX, for Abbott.

Scott N. Houston, Texas Municipal League, Austin, TX, for Texas Municipal League and Texas City Attorneys Ass'n, Amici Curiae.

Joseph Robert Larsen, Ogden, Gibson, Broocks & Longoria, Houston, YTX, for Freedom of Information Found. of Texas, Inc., Amicus Curiae.

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 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, 126 S.Ct. 1951, 164 L.Ed.2d 689 (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.

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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 108 S.Ct. 636, 98 L.Ed.2d 782 (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, 94 S.Ct. 1209, 39 L.Ed.2d 505 (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, 93 S.Ct. 739, 35 L.Ed.2d 201 (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, 93 S.Ct. 739, and a speaker who fears prosecution may engage in self-censorship, which is itself another injury, see Am. Booksellers, 484 U.S. at 392, 108 S.Ct. 636 ("[T]he alleged danger of [the challenged] statute is, in large measure, one of self-censorship."); see also Ashcroft v. ACLU, 542 U.S. 656, 670-71, 124 S.Ct. 2783, 159 L.Ed.2d 690 (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 plaintiff has alleged threats of prosecution that cannot be characterized as "imaginary or speculative." See Steffel, 415 U.S. at 459, 94 S.Ct. 1209. 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, 81 S.Ct. 1752, 6 L.Ed.2d 989 (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, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968)).

Because the reasons for the plaintiff's standing continue to exist, we also reject defendants' argument that the case is moot.⁹

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 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 Burson v. Freeman, 504 U.S. 191, 196, 112 S.Ct. 1846, 119 L.Ed.2d 5 (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, 112 S.Ct. 1846. 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' claims as not actionable without ever undertaking the strict-scrutiny analysis. Consequently, we must...