Q: Is there an equivalent of a Brown Act for Texas? I was at a Congressional town hall meeting, and a member of the Congresswoman’s staff told me I was not allowed to video record the meeting. Is that legal?
A: Texas has an Open Meetings Act, which provides, “Every regular, special, or called meeting of a governmental body shall be open to the public, except as provided by this chapter.” Tex. Gov’t Code § 551.002. A “governmental body” is defined as:
(A) a board, commission, department, committee, or agency within the executive or legislative branch of state government that is directed by one or more elected or appointed members;
(B) a county commissioners court in the state;
(C) a municipal governing body in the state;
(D) a deliberative body that has rulemaking or quasi-judicial power and that is classified as a department, agency, or political subdivision of a county or municipality;
(E) a school district board of trustees;
(F) a county board of school trustees;
(G) a county board of education;
(H) the governing board of a special district created by law;
(I) a local workforce development board created under Section 2308.253;
(J) a nonprofit corporation that is eligible to receive funds under the federal community services block grant program and that is authorized by this state to serve a geographic area of the state; and
(K) a nonprofit corporation organized under Chapter 67, Water Code, that provides a water supply or wastewater service, or both, and is exempt from ad valorem taxation under Section 11.30, Tax Code.
Tex. Gov’t Code § 551.001.
As you can see, it appears that the Open Meetings Law applies to state and local government, and therefore, the provision that pertains to the recording of a meeting:
“A person in attendance may record all or any part of an open meeting of a governmental body by means of a tape recorder, video camera, or other means of aural or visual reproduction,” Tex. Gov’t Code § 551.023
However, it may not apply to the meeting that you describe, which sounds like it was organized by a local congresswoman.
Even if the meeting is not subject to the Open Meetings Act, it may be subject to constitutional principles if it was held in a location considered a “public forum.”
Spaces such as sidewalks and parks have traditionally been used for conduct protected by the First Amendment, and are considered “public forums,” and therefore conduct in these forums is protected by the First Amendment and can only be restricted if a high standard is met.
The other end of the spectrum is the “non-public forum,” or places not traditionally open to the public for speech or petition-related activities.
Restrictions in non-public forums need only be reasonable and are generally upheld. In between these two extremes are “limited public forums” or “designated public forums,” which are areas that traditionally have not been made open to the public, but have become public forums for at least some purposes because the government body that regulates a particular area has made it available for use by the public.
The same high standard that applies to public forums also applies to limited public forums where the conduct fits within the time or purpose for which the place has been made open. See Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).
If the meeting you describe was open to the public, it may very well qualify as a “limited public forum.” See Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 759 (5th Cir. Tex. 2010) (school board meeting is a designated, limited public forum).
In order to restrict speech in a public forum or limited public forum, reasonable time, place and manner regulations are permissible, but restrictions must be “content neutral” (as opposed to “content based”) and narrowly tailored to serve a significant government interest, and must allow ample alternative channels of communication. See, e.g., Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 175-76 (2002).
Restrictions on speech in a public forum must be justified without reference to the protected speech’s content. Id. Content neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter.
See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988) (“content-neutral” speech restrictions are those that are justified without reference to the content of the regulated speech). If the town hall meeting qualifies as a “public forum” or “limited public forum,” a fairly high standard must be met before regulations may be imposed pertaining to attendance or taping.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.