Wilson’s Foreboding Forecast for Sunshine Laws: Partly Cloudy, With a Chance of Unconstitutionality

Abstract

During the 2021-22 term, the Supreme Court will hear oral arguments in an under-the-radar First Amendment case with great potential for spillover effect on the enforceability of laws entitling the public to attend government meetings. Houston Community College System v. Wilson is ostensibly a case about whether an elected government board can freely sanction one of its own maverick members for disloyal speech, without implicating the speaker’s First Amendment rights. But the case, if broadly decided, could unsettle four decades’ worth of caselaw finding no First Amendment problem with compelling members of elected public bodies to hold their official-business discussions in duly noticed public meetings only. Open-meeting laws (often called “sunshine” laws) are a venerated feature of contemporary political life. Enacted largely around the time of the Watergate scandal, these laws aim to create both substantively better government decisions (by giving the public an opportunity for input before decisions solidify) as well as an appearance of trustworthiness (by reassuring the public that decisions are not being made corruptly in smoke-filled backrooms). But elected officials who find the strictures of transparency discomforting have, from time-to-time, challenged these statutes as an infringement on their own right to discuss issues of public concern with their colleagues. So far, no court has accepted the invitation to invalidate an open meeting statute entirely. But if college trustee David B. Wilson secures a broad victory in his Supreme Court case, challenging a sanction resolution imposed by the college board on which he served, the movement to invalidate open meeting laws could be reenergized. Courts have disposed of the first generation of constitutional challenges rather summarily, without grappling with the tough question of whether (and to what extent) elected officials surrender First Amendment protections when they assume office. A win for Wilson could force a reckoning on those questions. The authors urge the Court to consider how a decision placing the First Amendment rights of elected officials on a plane comparable to that of all other citizens might adversely affect the enforceability of laws that require public business to be deliberated in public.