UPDATE: 5th Circ. Upholds Texas Open Meetings Act Sanctions

(Photo credit: wallyg)

In Diana Asgeirsson, Alpine Council Member, et al. v. Texas Attorney General (Case No. 11-50441), a three-member panel of the United States Court of Appeals for the Fifth Circuit this week unanimously upheld a provision of the Texas Open Meetings Act ("TOMA") [Tex. Govt. Code Sec. 551.001(3)] that subjects violators to misdemeanor penalties of up to a year in jail and a maximum $500 fine, the Houston Chronicle reported.

Local government officials in  15 communities, including  Wichita Falls and Sugar Land, have been fighting the measure for more than six years on First Amendment grounds, and are weighing an appeal before the entire 17-judge Fifth Circuit. (See "TUOL" posts 7/29/10 & 12/15/09.)

Discussing public business behind close doors, the appellate court wrote, "would decrease government transparency, and the state has determined that the benefits of making these discussions public outweigh any harm done by the disclosure of information."  TOMA does not apply to the governor, executive-level policymakers or the state legislature, the Chronicle article noted.

Ecdysiast/Journalist Sues Daily for Stripping Her of Her Job

(Photo credit: Wikipedia)Short-time society reporter and part-time exotic dancer Sarah Tressler has filed a gender discrimination complaint with the Equal Employment Opportunity Commission against The Houston Chronicle, which she claims terminated her after learning about her second job.

According to accounts by The New York Daily News and Associated Press, Tressler, a New York University journalism graduate who is represented by attorney to the stars Gloria Allred, worked for the Chronicle, for whom she previously freelanced, from January until March of this year as a society reporter.  She alleges that after a weekly newspaper reported that she worked as a stripper, the Chronicle dismissed her.

According to the news articles, Tressler said she did not include her dancing experience on her resume or Chronicle job application because it was never a full-time job. Tressler maintains a Facebook page titled "Diary of an Angry Stripper," and has both a "DAS" app and a book in the works.

Attorney Allred was quick to note that her 30-year-old client was not engaged in any unlawful activity and that her clothes shedding to music did not interfere with her duties as a journalist. It remains to be seen whether the EEOC will reconcile Tressler writing about polls as a journalist and writhing around poles as a stripper.

Fifth Circuit Holds Press Entitled Access to Sentencing Hearings

Image via WikipediaThe United States Court of Appeals for the Fifth Circuit this week in Oziel Cardenas-Guillen v. Hearst Newspapers LLC (Case No. 10-40221) held that the press and public have a First Amendment right to attend criminal sentencing hearings.

Former Mexican drug cartel head Oziel Cardenas-Guillen was arrested by Mexican police in 2003 and U.S. authorities took custody of him in 2007. Security concerns prompted a change of venue from the U.S. District Court for the Southern District of Texas in Brownsville, near the Mexican border, to federal court in Houston. (See "TUOL" post 12/13/10.)

The defendant pleaded guilty to drug, conspiracy and threat charges in February 2010, and was sentenced to 25 years in prison and forfeiture of $50 million. Citing public safety issues, the prosecution successfully moved to close the sentencing hearing to the press and public, with the presiding judge sealing both the government's petition for closure and his order granting the motion.

The Houston Chronicle, by its owner, Hearst Newspapers, LLC, appealed to the U.S. Court of Appeals for the Fifth Circuit, specifically, the trial court's  post-hearing rulings that the news organization's challenge of the closure of the courtroom during the sentencing hearing and its request to be heard on the issue before the closure were moot and its denial of the newspaper's request for public notice of all future hearings and a chance to be heard if the court decided to exclude the press and public from further hearings.

The appellate court reiterated its support of the collateral order doctrine that permits the news media to intervene, though not parties to a litigation, and seek appellate review when confidentiality or closure orders are involved. The court cited the U.S. Supreme Court decision in Press-Enterprise v. Superior Court, 478 U.S. 1, 8-9 (1986) that articulated the two-pronged test for whether the First Amendment mandated access to a particular criminal proceeding: 1)whether such proceedings historically have been open to the press and public; and 2)whether public access to the proceeding in question plays a significant positive role in the functioning of that proceeding. The standard is often referred to as the "experience & logic test" because of the High Court's reference to the institutional value of an open criminal trial being recognized in both experience and logic.

The 5th Circuit decision stated: "We also conclude that the press and the public, including the Chronicle, have a First Amendment right of access to sentencing proceedings,..[and] the district court deprived the Chronicle of its First Amendment right of access, without due process, in refusing to give the press and  public notice and an opportunity to be heard before sealing the sentencing proceeding."

Although the Supreme Court has yet to weigh in on the issue of press access to sentencing hearings, by its ruling in this case, the 5th Circuit joins the 2d, 4th, 7th and 9th Circuits in recognizing such a right.

5th Circuit Weighs Closed Sentencing Hearing Challenge by Hearst Daily

Image via WikipediaThe U.S. Circuit Court of Appeals for the Fifth Circuit, in an appeal filed by Hearst Newspapers, LLC concerning a criminal proceeding,  U.S. v. Cardenas-Guillen (Case No. 10-40221),  is deciding whether authorities violated the First Amendment when they conducted a criminal sentencing hearing behind closed doors without giving notice to the public.

Hearst Newspapers, LLC-owned Houston Chronicle was shot down by the district court when it requested a hearing on the court's decision to close the sentencing hearing involving Oziel Cardenas-Guillen, who in February 2010, was sentenced to 25 years in prison and ordered to forfeit $50 million to the government based on terms of a plea agreement involving drug, conspiracy and threat charges, according to a report on the Web site of the Reporters Committee for Freedom of the Press (www.rcfp.org).

The court cited security concerns in its decision to lock the public out of the hearing. The newspaper argued it was entitled to notice of the closure and an opportunity to be heard on whether the court was exceeding its discretion at the expense of the First Amendment.