Sunlight’s Glare: How Overbroad Open Government Laws Chill Free Speech and Hamper Effective Democracy

Abstract

In this Article, Prof. Mulroy argues that the broadest of state “open meetings laws” violate the free speech rights of covered government officials. The Article focuses on those laws which ban substantive discussion of government business by any two or three legislators outside of a publicly noticed official meeting (far less than a quorum), and those laws which admit no exceptions for matters involving individual privacy, personnel matters, consultation with counsel, ongoing financial negotiations, or other sensitive topics where confidentiality is warranted. They are likely overbroad under the strict scrutiny standard applicable to content-based speech restrictions, or even under the intermediate standard applicable to content-neutral laws. The Article also discusses equal protection issues arising when state legislatures exempt themselves from such strict requirements imposed on local legislators. As a policy matter, such overstrict laws chill needed deliberation and collegiality, prevent compromise, transfer power to unelected staff and lobbyists, encourage the violation of individual privacy, and, ultimately, force conscientious local legislators to become casual lawbreakers. The Article concludes by calling for reform of these laws, and provides a model open meetings act as a guide for such reform legislation.