Sunshine’s Chill: Overboard American Open Meetings Laws and the Limits of Disclosure

Source: Steven J. Mulroy, University of Memphis Legal Studies Research Paper No. 147, March 10, 2015

From the abstract:
In this Article, Prof. Mulroy examines “sunshine laws,” laws which require that meetings of legislative bodies be open to the public. All 50 U.S. States require that physical meetings, or even informal communications, among a quorum of a legislative body must be done pursuant to a publicly noticed meeting. Drawing a line at communication among a quorum is appropriate, because such private communications can effectively decide a question, rendering any subsequent public meetings a sham. But in 8 States, sunshine laws apply even to communications among only 2 or 3 legislators, far short of a quorum. These stricter laws impermissibly chill the free speech of legislators, hamper compromise, transfer power from elected officials to unelected staff and lobbyists, and cause other problems. In contrast, the open meetings laws of many Western countries are too lenient, applying only to formal meetings of legislators and not reaching communications among a quorum.

Evaluating the constitutional, free speech implications of the overstrict U.S. sunshine laws raises a doctrinal question of whether such laws are content-based speech regulations triggering “strict scrutiny” constitutional review, or content-neutral regulations triggering only the more relaxed “intermediate scrutiny.” Thanks to a line of cases classifying otherwise content-based regulations as content-neutral if motivated by the “secondary effects” of speech, there is currently confusion in the U.S. legal system about whether one looks to the plain language of a speech restriction, or its underlying justifications, to make the content-based/content-neutral determination.

Synthesizing recent U.S. Supreme Court case law, Prof. Mulroy proposes a restatement of the current law on making this content-based/content-neutral distinction, one which relies on the plain language of the speech restriction in all but a very narrow class of cases allowing a very limited “secondary effects” approach. More broadly, Prof. Mulroy proposes that the Supreme Court eliminate the “secondary effects” doctrine entirely, and adopt going forward a “purely facial” approach. A case currently pending before the Supreme Court raises this very question, and provides the Court such an opportunity for adopting such an approach.