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I.
The plaintiffs, elected city council members, were indicted in state court

for violations of the criminal provisions of the Texas Open Meetings Act

(“TOMA”)1 by acting as a quorum in exchanging private emails discussing

whether to call a council meeting to consider a public contract matter. After

prosecuting the charges for several months, the district attorney dismissed them

without prejudice. The plaintiffs, alleging fear of future prosecutions and undue

restriction of their First Amendment speech rights, brought this § 1983 action

in federal district court for declaratory and injunctive relief against the state

attorney general and the district attorney, challenging as content-based speech

regulations the criminal provisions of TOMA. The district court dismissed the

plaintiffs’ claims, holding that under Garcetti v. Ceballos, 547 U.S. 410 (2006),

elected officials, like public employees, enjoy no First Amendment protection of

their speech made pursuant to their official duties. The plaintiffs appealed and

we now reverse and remand the case to the district court for further proceedings.

                                                                  No. 06-51587


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                                               II.
Defendants assert that this case is nonjusticiable because the plaintiffs

lack standing and their claims are moot. We agree with the district court that

the plaintiff Mr. Rangra has standing, and we conclude that the case is not

moot.<sup>2

2</sup>The record reflects that Mr. Rangra is still a member of the city council, although Ms.
Monclova may not be. A case is not moot as long as a live controversy exists between at least
one plaintiff and one defendant. See Cutter v. Wilkinson, 544 U.S. 709, 712 n.1 (2005); 13B
CHARLES A. WRIGHT, ARTHUR R. MILLER & EDWARD H . COOPER , FEDERAL PRACTICE &
PROCEDURE § 3533.1 n.18 (3d ed. 2008). Consequently, we need not address standing with
respect to Ms. Monclova. To the extent the issue remains open, we leave its consideration and
determination to the district court on remand.

To establish standing, the plaintiff must demonstrate injury, causation,

and redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

It is well established that a credible threat of present or future criminal

prosecution will confer standing. See, e.g., Virginia v. Am. Booksellers Ass’n,

Inc., 484 U.S. 383, 392-93 (1988) (holding that the injury-in-fact requirement

was met, in part, because “plaintiffs have alleged an actual and well-founded

fear that the law will be enforced against them”); Steffel v. Thompson, 415 U.S.

452, 459 (1974) (“[I]t is not necessary that [a party] first expose himself to actual

arrest or prosecution to be entitled to challenge a statute that he claims deters

the exercise of his constitutional rights.”); Doe v. Bolton, 410 U.S. 179, 188-89

(1973). This is because a credible threat of present or future prosecution is an

injury sufficient to confer standing, even if there is no history of past

enforcement, see Bolton, 410 U.S. at 188, and a speaker who fears prosecution

may engage in self-censorship, which is itself another injury, see Am.

Booksellers, 484 U.S. at 392 (“[T]he alleged danger of [the challenged] statute is,

in large measure, one of self-censorship.”); see also Ashcroft v. ACLU, 542 U.S.

656, 670-71 (2004) (“Where a prosecution is a likely possibility . . . speakers may

self-censor rather than risk the perils of trial. There is a potential for

extraordinary harm and a serious chill upon protected speech.”).

“The standard – encapsulated in the phrase ‘credible threat of prosecution’

– is quite forgiving.”³ “[W]hen dealing with . . . statutes that facially restrict

expressive activity by the class to which the plaintiff belongs, courts will assume

a credible threat of prosecution in the absence of compelling contrary evidence.”⁴

The district court held that the plaintiff established standing by demonstrating injury in fact, causation, and redressability through

selfcensorship out of fear of prosecution under TOMA.⁵ We agree. The plaintiff’s

affidavits and trial testimony show that he has self-censored his speech to avoid

prosecution under TOMA⁶ and thereby established injury.⁷ Moreover, the

³ N. H. Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 14 (1st Cir. 1996)
(citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 301 (1979)).

⁴ Gardner, 99 F.3d at 15 (citing Babbitt, 442 U.S. at 301-02; Bolton, 410 U.S. at 188;
Am. Booksellers, 484 U.S. at 392-93; Chamber of Commerce of U.S. v. FEC, 69 F.3d 600, 603-04
(D.C. Cir. 1995); Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir. 1987)).

⁵ See Rangra v. Brown, No. P-05-CV-075, 2006 WL 3327634, at *4 (W.D. Tex. Nov. 7,
2006); see also Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 659 (5th Cir. 2006).

⁶ For example, Rangra’s affidavit states the following:
I am still a member of the Alpine City Council. I still want to talk to and
discuss public matters with my fellow elected city council members. I would
like to communicate with city councilors, and the public, by email, regular mail,
telephone, and directly. Because of Mr. Brown’s prosecution of me and my
fellow councilors, I am afraid to do this. I am afraid to exercise my First
Amendment rights to communicate with my fellow councilors, and the public.
I am afraid that if I talk to anyone about public matters, except at a city council
meeting, I could be indicted and face a criminal prosecution. This threat to me
is ongoing and real. But for this threat, I would exercise my First Amendment
rights to communicate with the voters and public officials.

⁷ See, e.g, Am. Booksellers, 484 U.S. at 7 392; Ashcroft v. ACLU, 542 U.S. at 670-71.


plaintiff has alleged threats of prosecution that cannot be characterized as

“imaginary or speculative.” See Steffel, 415 U.S. at 459. He has been indicted

and prosecuted for his email discussion of setting up a city council meeting

pertaining to council business, and the Texas Attorney General has warned that

the speech the plaintiff claims is constitutionally protected and for which he has

been indicted, viz., communications, including emails, discussing public business

or public policy, is subject to future prosecution.⁸ The prosecution of the plaintiff

for his email communications is ample demonstration that his concern with

future indictment and prosecution is not “chimerical.” See id. (citing Poe v.

Ullman, 367 U.S. 497, 508 (1961)). In these circumstances, it is not necessary

that the plaintiff first expose himself to actual arrest, indictment, or prosecution

to be entitled to challenge a statute that he claims deters the exercise of his

constitutional rights. See id. (citing Epperson v. Arkansas, 393 U.S. 97 (1968)).

Because the reasons for the plaintiff’s standing continue to exist, we also

reject defendants’ argument that the case is moot.<sup>9

8</sup> See, e.g., Op. Tex. Att’y Gen. JC-0307 (2000).

⁹ To avoid mootness “[t]he requisite personal interest that must exist at the
commencement of the litigation [to give rise to standing] must continue throughout its
existence,” i.e., the controversy underlying the lawsuit must persist. Arizonans for Official
English v. Arizona, 520 U.S. 43, 68 n.22 (1997) (quoting U. S. Parole Comm’n v. Geraghty, 445
U.S. 388, 397 (1980)).

                                            III.

The plaintiffs challenge the criminal provisions of TOMA as state

regulations imposing an invalid content-based restriction of free speech.¹⁰ The

Supreme Court has held that the strict scrutiny test governs challenges for

assessing laws that regulate speech on the basis of its content.<sup>11

Strict scrutiny, a formula crafted by the Supreme Court for implementing

constitutional values, is one of the most important elements of modern

constitutional law.  12 Strict scrutiny varies from ordinary scrutiny by imposing

three hurdles on the government. It shifts the burden of proof to the

government, requires the government to prove that its action or regulation

pursues a compelling state interest, and demands that the government prove</sup>



that its action or regulation is “narrowly tailored” to further that compelling

interest.¹³

We agree with the plaintiffs that the criminal provisions of TOMA are

content-based regulations of speech that require the state to satisfy the strict scrutiny

test in order to uphold them.¹⁴ A speech regulation is content-based if

it defines the regulated speech by reference to its content.¹⁵ For example, in

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¹³ See Siegel, supra note 12, at 360 (citing ERWIN 13 CHEMERINSKY, CONSTITUTIONAL LAW:
PRINCIPLES AND POLICIES 645, 767, 902-903 (2d ed. 2002)); Fallon, supra note 12, at 1273.

¹⁴ See, Ashcroft v. ACLU, 542 U.S. at 665 (“When plaintiffs challenge a content-based
speech restriction, the burden is on the Government to prove that the proposed alternatives
will not be as effective as the challenged statute.”); White, 536 U.S. at 774 (applying strict
scrutiny to a law prohibiting speech on the basis of its content); Playboy, 529 U.S. at 813 (“If
a statute regulates speech based on its content, it must be narrowly tailored to promote a
compelling Government interest”); Reno, 521 U.S. at 868 (applying “the most stringent
review” to a content-based restriction); Turner Broad., 512 U.S. at 642 (“Our precedents thus
apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose
differential burdens upon speech because of its content”); Burson v. Freeman, 504 U.S. 191,
198 (1992) (holding that “a facially content-based restriction on political speech . . . must be
subjected to exacting scrutiny: The State must show that the regulation is necessary to serve
a compelling state interest and that it is narrowly drawn to achieve that end” (internal
quotation marks omitted)); R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1992)
(“Content-based regulations are presumptively invalid”); Simon & Schuster, 502 U.S. at 116
(“Regulations which permit the Government to discriminate on the basis of the content of the
message cannot be tolerated under the First Amendment.” (internal quotation marks
omitted)); Boos v. Barry, 485 U.S. 312, 321 (1988) (“Our cases indicate that as a content-based
restriction on political speech in a public forum, [the statute prohibiting negative picketing]
must be subjected to the most exacting scrutiny.”); Carey v. Brown, 447 U.S. 455, 461-62
(1980) (applying strict scrutiny to a content-based restriction); Mosley, 408 U.S. at 95 (“[T]he
First Amendment means that government has no power to restrict expression because of its
message, its ideas, its subject matter, or its content”).

^{1 5} See Playboy, 529 U.S. at 811 (“[When] speech . . . is defined by its content . . . the
statute which seeks to restrict it is content based.”); see also White, 536 U.S. at 774 (holding 
that a law prohibiting transmission of indecent material by means of a telecommunications device
to a minor was a content-based restriction); Burson, 504 U.S. at 197 (“Whether individuals may
exercise their free speech rights near polling places depends entirely on whether their speech is related to a
political campaign. The statute does not reach other categories of speech, such as commercial
solicitation, distribution, anddisplay. This Court has held that the First Amendment’s hostility
to content-based regulation extends not only to a restriction on a particular viewpoint, but also
to a prohibition of public discussion of an entire topic”); Boos, 485 U.S. at 321 (holding that a
prohibition on picket signs critical of a foreign government was content based).

Burson v. Freeman, 504 U.S. 191, 196 (1992), the Court found a statute

prohibiting display of political campaign materials within 100 feet of a polling

place to be a content-based speech restriction because “[w]hether individuals

may exercise their free speech rights near polling places depends entirely on

whether their speech is related to a political campaign. The statute does not

reach other categories of speech, such as commercial solicitation, distribution,

and display.” Id. at 197. TOMA § 551.144, which criminalizes the discussion of

public matters by a quorum of public officials when outside of an open meeting,

see Tex. Gov’t Code Ann. §§ 551.001, 551.144(a), is similarly content based

because whether a quorum of public officials may communicate with each other

outside of an open meeting depends on whether the content of their speech refers

to “public business or public policy over which the governmental body has

supervision or control.”¹⁶

Furthermore, because TOMA imposes a content-based regulation, we

conclude that the district court was required to apply the strict-scrutiny test and

to make the state carry its burden of proving that the statute pursues a

compelling interest which the law is narrowly tailored to further. The district

court did not perform that task because it mistakenly concluded that elected

officials’ speech made pursuant to their official duties is totally unprotected by

the First Amendment. For this reason, the district court dismissed the plaintiffs’

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16 TEX. GOV’T CODE ANN. § 551.001 (Vernon 2007).


claims as not actionable without ever undertaking the strict-scrutiny analysis.

Consequently, we must vacate the district court’s judgment and remand the case

to it for a proper application of the strict scrutiny test. Before doing so, however,

we will explain why the district court erred in assuming that the speech of

elected officials made pursuant to their official duties is entitled to no protection

under the First Amendment.
                                                       IV.

The Supreme Court, in Garcetti, held that the First Amendment does not

protect a government employee from discipline based on speech made pursuant

to the employee’s official duties.¹⁷ The district court assumed that there is no

meaningful distinction between the speech of elected officials and that of public

employees and held that, under Garcetti, the plaintiffs’ speech pursuant to their

official duties was not protected by the First Amendment.

The district court’s premise that the First Amendment’s protection of

elected officials’ speech is limited just as it is for the speech of public employees,

however, is incorrect. Job-related speech by public employees is clearly less

protected than other speech because the Court has held that government

employees’ speech rights must be balanced with the government’s need to

supervise and discipline subordinates for efficient operations.¹⁸ The First

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¹⁷ See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

¹⁸ In Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968), the Court stated that its task
was to balance the free speech rights of government employees with the government’s “interest
. . . as an employer, in promoting the efficiency of the public services it performs through its
employees.” Id. “[T]he State has interests as an employer in regulating the speech of its
employees that differ significantly from those it possesses in connection with regulation of the
speech of the citizenry in general.” Id.


Amendment does not protect government employees’ job-related speech unless

the speech is about a matter of public concern, “and even then, a government

employee may be fired or disciplined for her speech if the government employer

can show, on balance, that the efficient operation of the office justified the

action.”19 But when the state acts as a sovereign, rather than as an employer,

its power to limit First Amendment freedoms is much more attenuated.20 That

is because a state’s interest in regulating speech as sovereign is “relatively

subordinate . . . [as] [t]he government cannot restrict the speech of the public at

large just in the name of efficiency.”21 Garcetti itself, like the Court’s other

public employee speech cases, recognizes the state’s very limited power as

________________________________

¹⁹ ERWIN CHEMERINSKY,CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 1110 (3d ed.
2006); see also Waters v. Churchill, 511 U.S. 661, 668 (1994) (plurality opinion); Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 284 (1977); Pickering, 391 U.S. at 568.

²⁰ See Waters, 511 U.S. at 671-72 (“[T]he government as employer indeed has far
broader powers than does the government as sovereign.” (citing Connick v. Myers, 461 U.S.
138, 147 (1983); Civil Serv. Comm’n v. Letter Carriers, 413 U.S. 548, 564 (1973); Pickering, 391
U.S. at 568)); see also Garcetti, 547 U.S. at 418 (citing Waters, 511 U.S. at 671).

²¹ Waters, 511 U.S. at 675 (“The key to First Amendment analysis of government
employment decisions, then, is this: The government’s interest in achieving its goals as
effectively and efficiently as possible is elevated from a relatively subordinate interest when
it acts as sovereign to a significant one when it acts as employer. The government cannot
restrict the speech of the public at large just in the name of efficiency. But where the
government is employing someone for the very purpose of effectively achieving its goals, such
restrictions may well be appropriate.”); see also id. at 674-75 (“Rather, the extra power the
government has in this area comes from the nature of the government’s mission as employer.
Government agencies are charged by law with doing particular tasks. Agencies hire employees
to help do those tasks as effectively and efficiently as possible. When someone who is paid a
salary so that she will contribute to an agency’s effective operation begins to do or say things
that detract from the agency’s effective operation, the government employer must have some
power to restrain her. The reason the governor may, in the example given above, fire the
deputy is not that this dismissal would somehow be narrowly tailored to a compelling
government interest. It is that the governor and the governor’s staff have a job to do, and the
governor justifiably feels that a quieter subordinate would allow them to do this job more
effectively.”).

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                                                  No. 06-51587

sovereign to infringe on First Amendment freedoms.²² None of the Supreme

Court’s public employee speech decisions qualifies or limits the First

Amendment’s protection of elected government officials’ speech.²³ Contrary to

the district court’s reasoning, there is a meaningful distinction between the First

Amendment’s protection of public employees’ speech and other speech, including

that of elected government officials.

Indeed, the Supreme Court’s decisions demonstrate that the First

Amendment’s protection of elected officials’ speech is robust and no less

²² See Garcetti, 547 U.S. at 418 (“[T]he government as employer indeed has far broader
powers than does the government as sovereign.” (quoting Waters, 511 U.S. at 671)); id. (“A
government entity has broader discretion to restrict speech when it acts in its role as employer,
but the restrictions it imposes must be directed at speech that has some potential to affect the
entity’s operations”); see also authorities cited supra note 19.

²³ Garcetti did not expand the scope of the public employee speech limitations to include
elected officials; rather, Garcetti merely carved out a narrow exception to the Supreme Court’s
holdings that a government employer may not discipline or adversely affect public employees
for their speech involving matters of public concern unless the state can prove that the needs
of the government outweigh the speech rights of the employee. In Garcetti, Ceballos, a deputy
district attorney, alleged that he had been subjected to adverse employment actions in
retaliation for engaging in protected speech, viz., for writing an internal memo recommending
the dismissal of a criminal case on the basis of alleged governmental misconduct. See Garcetti,
547 U.S. at 414-15. The Supreme Court concluded that Ceballos’s speech was not protected,
holding that “when public employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employer discipline.” Id. at 421. Thus, the Court
reasoned that when Ceballos spoke pursuant to his official duty he was not speaking as a
citizen on a matter of public concern, and, therefore, his speech was not protected by the First
Amendment. See id. at 423; see also The Supreme Court, 2005 Term, 120 Harv. L. Rev. 273
(2006). As a result, Garcetti created an exception allowing that, where a public employee
speaks pursuant to official duty, the state may restrict this speech without proving that its
management needs outweigh the employee’s freedom of expression. See Garcetti, 547 U.S. at
423.
While Garcetti added a new qualification of public employees’ freedom of expression
recognized by the Court’s long line of cases concerning public employee speech rights, it did
nothing to diminish the First Amendment protection of speech restricted by the government
acting as a sovereign rather than as an employer and did nothing to impact the speech rights
of elected officials whose speech rights are not subject to employer supervision or discipline.

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                                                            No. 06-51587
                                                                   12

strenuous than that afforded to the speech of citizens in general. For example,

in the 1960s the Court held in Bond v. Floyd, 385 U.S. 116, 133-35 (1966), that

state action excluding a state representative from membership in the legislature

because of his statements criticizing the policy of the federal government in

Vietnam and the operation of the selective service laws violated his right of free

expression under the First Amendment. In Wood v. Georgia, 370 U.S. 375, 392,

395 (1962), the Court held that out-of-court statements by a sheriff questioning

the advisability of a grand jury investigation into block voting by black citizens

did not present a clear and present danger to the administration of justice, and,

therefore, the use of the contempt power to punish the sheriff for the statements

abridged his right of free speech. The Court emphasized that “[t]he role that

elected officials play in our society makes it all the more imperative that they be

allowed freely to express themselves on matters of current public importance.”

Id. at 395.

Recently, in Republican Party of Minnesota v. White, 536 U.S. 765, 774-75

(2002), the Court held that a state supreme court’s canon of conduct, which

prohibited candidates for judicial election from announcing their views on

disputed legal or political issues, is a content-based regulation of speech; that the

proper test to be applied to determine the constitutionality of such a restriction

is the strict scrutiny test; that the strict scrutiny test requires that the party

defending the content-based restriction has the burden to prove that the

regulation is (1) narrowly tailored to serve (2) a compelling state interest; and

that in order for that party to show that the speech regulation is narrowly

tailored, that party must demonstrate that the regulation does not unnecessarily

circumscribe protected expression. See id. In White, based on the record

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                                                   No. 06-51587
                                                            13

compiled in the district court on cross motions for summary judgment and the

court of appeals’ decision, a majority of the Supreme Court agreed that the

parties defending the speech regulation had failed to carry their burden of

proving that it was narrowly tailored to serve a compelling state interest, and

that the state’s prohibition on judicial candidates’ announcing their legal views

was an unconstitutional abridgement of freedom of speech. See id. Further, the

Court reaffirmed that “‘[t]he role that elected officials play in our society makes

it all the more imperative that they be allowed freely to express themselves on

matters of current public importance.’” Id. at 781-82 (quoting Wood v. Georgia,

370 U.S. at 395).<sup>24

Most significantly, this court in Jenevein v. Willing, 493 F.3d 551 (5th Cir.

2007), held that White, 536 U.S. at 765, required us to apply the strict scrutiny

test to determine whether a state judiciary commission’s order censuring an

elected judge’s speech on the basis of its content violated his First Amendment

protected speech rights.</sup>25  ^{See Jenevein, 493 F.3d at 557-58. The censure order,}

                                                 No. 06-51587

_________________________________
²⁴ Even before White, however, as evinced by the two principal decisions upon which it
relied, the Court had vigorously applied the First Amendment protections through the strict
scrutiny test on behalf of elected officials, candidates for elective offices, and political parties.
See Eu v. S. F. County Democratic Cent. Comm., 489 U.S. 214, 222 (1989); Brown v. Hartlage,
456 U.S. 45, 53-54, 58 (1982).

²⁵ Jenevein’s application of strict scrutiny, in reliance on White, is consistent with the
Supreme Court’s use of that formula to protect the expressive activity of virtually all persons
from unnecessary content-based regulation of speech regarding public matters or governmental
affairs. See, e.g., Consol. Edison Co. of New York, Inc. v. Public Svc. Com’n, 447 U.S. 530,
534-35 (1980) (“This Court has emphasized that the First Amendment embraces at the least
the liberty to discuss publicly and truthfully all matters of public concern” (internal quotation
marks omitted)). In fact, the strict scrutiny test originated in the First Amendment cases of
the 1950s and 1960s before it was adopted in the equal protection cases regarding voting rights
and racial discrimination, with which it is most identified now. See generally Siegel, supra note
12, at 361-381. Throughout the standard’s history, the Court has applied the content-based
strict scrutiny test in service of the “practically universal agreement that a major purpose of

                                                                13

                                                     No. 06-51587

which disciplined the judge for holding a press conference in which he addressed

alleged abuses of the judicial process by lawyers in a pending case, shut down

all communication between the elected judge and his constituents. See id. at

556-558. Applying the strict scrutiny test prescribed by White, we held that the

censure order, in substantial part, was an unconstitutional content-based

restriction of the elected official’s speech because the state had failed to prove

that it was narrowly tailored to further a compelling state interest. See

Jenevein, 493 F.3d at 559-560.<sup>26

In Jenevein, we expressly declined the parties’ invitation to draw upon the

“Pickering - Garcetti line of cases for sorting the free speech rights of employees</sup>

                                          
___________________________________

[the First] Amendment [is] to protect the free discussion of governmental affairs,” Mills v.
Alabama, 384 U.S. 214, 218 (1966), and “[t]he inherent worth of the speech in terms of its
capacity for informing the public does not depend upon the identity of its source, whether
corporation, association, union, or individual,” First Nat’l Bank of Boston v. Bellotti, 435 U.S.
765, 777 (1978), by protecting the speech by a wide variety of citizens seeking to speak on
matters of public concern. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989) (protecting
protesters wishing to burn the American flag); Boos, 485 U.S. at 321 (protecting individuals
wishing to carry signs critical of foreign governments); Consol. Edison, 447 U.S. at 530
(protecting a public utility company wishing to include in billing envelopes pamphlets
discussing controversial issues) . Thus, our application of strict scrutiny, in Jenevein and here,
to content-based restrictions on elected officials’ speech regarding matters of public business
and concerns fits squarely within the long-held principles of First Amendment jurisprudence.

²⁶ In Jenevein, 493 F.3d at 557-58, we applied strict scrutiny to analyze restrictions on
an elected judge’s speech despite a prior circuit precedent, decided before White, 536 U.S. at
781-82, that analyzed similar restrictions on an elected justice of the peace’s speech under the
Pickering balancing test, see Scott v. Flowers, 910 F.2d 201, 211-12 (5th Cir. 1990). To the
extent that allegiance to the intervening Supreme Court decision in Republican Party causes
Jenevein to conflict with prior circuit precedent in Scott, we are bound to follow the Supreme
Court and apply Jenevein. See, e.g., United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999)
(“[T]his panel is bound by the precedent of previous panels absent an intervening Supreme
Court case explicitly or implicitly overruling that prior precedent.”). Further, Scott v. Flowers
may be read as anticipating White because it noted that the state’s interest in regulating
elected officials’ speech is “much weaker than in the typical public employee situation.” Scott,
910 F.2d at 211.
                                                                          14

No. 06-51587

elected to state office.”²⁷ We noted that those cases’ “categorical divisions of

public and private speech fail to illuminate the state’s interest in constraining

speech by an elected public official, political speech at the core of the First

Amendment, and its necessity.”²⁸ Further, we noted that an elected official’s

relationship with the state differs from that of an ordinary state employee,

observing “[o]ur ‘employee’ is an elected official, aboutwhomthe public is obliged

to inform itself, and the ‘employer’ is the public itself, at least in the practical

sense, with the power to hire and fire. It is true that [the elected official] was an

employee of the state. It is equally true that as an elected holder of state office,

his relationship with his employer differs from that of an ordinary state

employee.”<sup>29

                                               Conclusion

Applying the foregoing precepts, we conclude that the district court

incorrectly assumed that the Pickering-Garcetti line of decisions, rather than the

strict scrutiny test as elaborated in White, governs the present case.

Accordingly, we reverse the district court’s judgment and remand the case to it

for the application of the strict scrutiny formula to Tex. Gov’t Code § 551.144.30</sup>

______________________________________

²⁷ Jenevein, 493 F.3d at 558 (citing Pickering, 391 U.S. at 563; Garcetti, 547 U.S. at
410).

²⁸ Id. at 557 (citing White, 536 U.S. at 765).

²⁹ Id.; see also id at 558 (“If the State chooses to tap the energy and the legitimizing
power of the democratic process [in the election of judges], it must accord the participants in
that process . . . the First Amendment rights that attach to their roles.”) (quoting White, 536
U.S. at 788).

³⁰ We note that the criminal provision in Tex. Gov’t Code § 551.144 is the only portion
of TOMA at issue in this case and that the district court’s strict scrutiny inquiry should be

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                                                              No. 06-51587

In doing so, we point out, however, that the Supreme Court has rejected “the

notion that strict scrutiny is ‘strict in theory, but fatal in fact.’”³¹ The fact that

strict scrutiny applies “‘says nothing about the ultimate validity of any

particular law; that determination is the job of the court applying’” that

standard.³²

___________________________________

limited to this provision.

³¹ Adarand Constr’rs, Inc. v. Pena, 515 U.S. 200, 237 (1995) (quoting Fullilove v.
Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring)); see also Johnson v. California,
543 U.S. 499, 515 (2005) (“‘The fact that strict scrutiny applies says nothing about the ultimate
validity of any particular law . . . .’” (quoting Pena, 515 U.S. at 230)); Grutter v. Bollinger, 539
U.S. 306, 326 (2003) (“Strict scrutiny is not strict in theory, but fatal in fact.” (internal
quotation marks omitted)); United States v. Virginia, 518 U.S. 515, 533 n.6 (1996); Adam
Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the
Federal Courts, 59 VAND. L. REV. 793, 795-96 (2006) (finding, based on an empirical study of
“every strict scrutiny decision published by the district, circuit, and Supreme courts between
1990 and 2003,” that “[c]ourts routinely uphold laws when applying strict scrutiny, and they
do so in every major area of law in which they use the test. Overall, 30 percent of all
applications of strict scrutiny — nearly one in three — result in the challenged law being
upheld.”); Siegel, supra note 12, at 394, 401 (“[S]trict scrutiny is a tool to determine whether
there is a cost-benefit justification for governmental action that burdens interests for which
the Constitution demands unusually high protection”); id. (“Tracing strict scrutiny’s roots back
to First Amendment narrow tailoring cases in the 1940s and compelling interest cases in the
1950s and early 1960s, establishes strict scrutiny as part of a constitutional paradigm in
which, even for high-protectionist Justices, no constitutional right was ‘beyond limitation,’ and
none could prevail over an appropriate subordinating governmental interest.” (footnotes
omitted)); Fallon, supra note 12, at 1302-03 (asserting that the Supreme Court has arguably
adopted an interpretation of strict scrutiny as “a weighted balancing test, similar to European
proportionality inquiries, in which a court must ask whether a particular intrusion on
protected liberties, which may be greater or lesser, can be justified in light of its benefits.”
(footnotes omitted)).

³² See Winkler, supra note 31, at 794 (quoting Pena, 515 U.S. at 230).
We emphasize that we remand this matter for the district court to conduct a strict
scrutiny review in the first instance because that inquiry might well require development of
the record beyond its present state, as the state has not yet been afforded an opportunity to
prove that TOMA § 551.144 is narrowly tailored to further a compelling state interest. TOMA
§ 551.144 may indeed survive this strict scrutiny inquiry. Numerous states apparently employ
similarly tailored provisions in their open meetings acts. See ANN TAYLOR SCHWING, OPEN
MEETING LAWS 2d 275, 285 (2000). However, we simply lack the record necessary to make a

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                                                                      No. 06-51587

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For these reasons, the judgment of the district court is reversed and the

case is remanded to it for further proceedings consistent with this opinion.














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strict scrutiny determination here; thus we remand the issue.