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A&A: City Denies Critics Access To Information?

Q: I was very concerned about the Dallas Morning News article from May 19, 2010: “JUDGE ORDERS CITY CRITIC TO AVOID OFFICIALS.”  Did the ruling affect any person requesting records? Because elected officials are the stewards of our tax money, I feel their actions should be available to the public. This situation truly concerns me and I would appreciate any help you could give me.

A: My understanding is that the court order in question applied only to a particular individual, so it is not clear how it would impact others seeking records. If the order prohibited an entire class of individuals from requesting certain public records, that would likely be far more problematic than an order restricting the contact that a single individual could have. As discussed below, however, even an order that applies only to a particular individual can run afoul of the First Amendment.

With respect to whether a court can prohibit a particular individual from interacting with public officials, there are a few cases that you might find interesting.

First, the Court of Appeals of Minnesota considered the validity of a restraining order that prohibited an individual from contacting various state agencies except in writing. Chase v. Graham, 1998 Minn. App. LEXIS 1227 (Minn. Ct. App. Nov. 10, 1998) (the case is unpublished, which generally means it cannot be cited as binding legal precedent). In that case, the court decided that the restraining order was permissible because it allowed the individual to contact the agencies in writing (or in person at the invitation of a government employee). The court, which had noted that the individual had repeatedly caused disturbances at the offices of various government agencies, said:

In analyzing [the individual’s] constitutional argument, we note, first, that the district court imposed the restraining order to regulate the manner of [her] contact with the state and its employees. The purpose and the specific provisions of the injunction are content-neutral. Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 762-64, 114 S. Ct. 2516, 2523-24, 129 L. Ed. 2d 593 (1994). In evaluating the constitutionality of a content-neutral restraining order, we determine only whether the order burdens more speech than is necessary to serve a significant government interest. Id. at 765; 114 S. Ct. at 2525. Given [the individual’s] pattern of repeated harassment, the order does not burden more speech than is necessary to serve the important government interest of providing safe areas for public access and providing safety and security for public employees in their workplace.

Id. at *6-7. It is not clear, however, that prohibiting an individual from any contact with the entire local government would satisfy constitutional requirements. Or to put it in the language of the Chase decision, such a broad restraining order might be said to burden more speech than is necessary to serve the interest of protecting your ex-husband.

Along the same lines, a court in Washington recently considered a permanent domestic violence order prohibiting an individual from “contacting any agency regarding [his ex-wife’s] immigration status, including but not limited to the Department of Homeland Security …, the Executive Office of Immigration Review (the immigration court system), or the Department of State. Any contact that [the restrained individual] believes to be necessary must first be approved by this court through the undersigned judge/department.”

In re Marriage of Meredith, 148 Wn. App. 887, 896 (Wash. Ct. App. 2009). Even though the restrained individual had demonstrated an appalling propensity to abuse and manipulate, including having tried to get his then-pregnant wife deported, the court found that the order violated the husband’s right to free speech and right to petition the government. Id. at 896-902. As the court said, “the First Amendment’s petition clause prohibits courts from denying a citizen access to the government based on speculation that the citizen will use such access in order to harass or commit libel.” Id. at 901-02.

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