The First Amendment of the U.S. Constitution explicitly itemizes the rights of individuals to speak freely, to peacefully assemble, and to petition the government in support or opposition of government action. The ability and opportunity for individuals to speak up and engage with each other and with public officials around issues that matter to them, therefore, is critical to civic engagement.
Yet, in the U.S., low turnout at meetings of governmental bodies – a place where individuals and groups are invited to speak directly regarding government action – is common, except when controversial issues are on the agenda. A 2013 publication by the National Civic League suggests that governments tend to offer limited ways for the public to feel that they can effectively engage with their elected officials and participate in public decision-making.
Survey data indicate that both in Harris County and nationwide, a relatively small percentage of respondents contact officials to express their opinion on an issue or simply to bring a specific problem, such as a pothole, to their attention. In 2016, just over one in 20 residents in Greater Houston contacted a public official at least once every year. Nationwide, about twice as many (one in ten) residents reported doing so (Lappie 2018).
Exploratory conversations with Harris County community leaders indicated that they perceive that some community members try to impact local politics. While not all of these stakeholders were able to estimate a percentage of community members who had contacted an elected official or attended a government meeting, those who did reported that fewer than half of community members had done so. One prominent exception to this: stakeholders described community members reaching out to elected officials or attending community meetings in order to communicate with FEMA in the aftermath of Hurricane Harvey.
Whenever a quorum of any state or municipal governmental body meets to consider public business, the meeting must be open to the public. A “walking quorum” – when members of a government body intentionally consider public business without a physical quorum in one single place – violates this law.
This applies for both regular and special meetings, unless otherwise outlined by state law, of government bodies including, but not limited to: state, city, and county governing bodies; school district boards; other municipal governing bodies; and any executive and legislative boards, commissions, agencies, departments, and committees, whether led by an elected or appointed member.
Governing bodies are not permitted to consider any matter unless it has been listed on a publicly-available agenda. If anyone present – whether a member of the governing body or the public – raises a topic not on the agenda, only factual information can be provided in response; deliberations are prohibited.
Texas policy sources: Tex. Govt. §551.001-.002, §551.042, §551.127-.128 (Texas Open Meetings Act); Tex. Office of the Attorney General, 2018 Open Meetings Handbook
All votes by a state or municipal governing body must take place in an open meeting. Minutes from open meetings are public records. Audience members may record any or all of an open meeting, and open meetings are permitted to be broadcast on the internet.
State law allows open meetings to be held by videoconference. To do so, a quorum must be physically present in a single location, and the videoconference must be publicly visible and audible at that location.
If the governing body includes 3 or more counties, a quorum does not have to be at one single location, but the individual presiding over the meeting must be physically present in a meeting location that is open to the public.
The physical location must be specified in all meeting notices, and a recording of the meeting must be made available to the public.Texas policy sources: Tex. Govt. §551.021-.023, §551.102; §551.127 (Texas Open Meetings Act)
Written notice of all meetings of a governmental body must be provided to the public. Typically, this notice must be provided at least 72 hours in advance, “in a place readily accessible to the general public.”
Statewide agencies must provide notice at least 7 days in advance. The state House of Representatives and Senate may set their own requirements for public notice of legislative committee meetings.
In the case of a catastrophic emergency, only 2 hours advance notice is required; this notice must be provided to all news media outlets that have requested to be notified about emergency meetings.
In an emergency, state law permits open and closed meetings to be held by telephone; but advance notice requirements must be followed.
Texas policy sources: Tex. Govt. §551.041-.056, §551.125-.127 (Texas Open Meetings Act)
Governmental bodies may permit the public to speak at meetings via public comment, but state law does not require them to do so.
If a governing body permits public comment, it may adopt its own rules that limit how many people may speak, how often, and for how long. In doing so, a governing body “must act reasonably and may not discriminate” based on the specific views being expressed.
If a public comment session is permitted, governing bodies must provide notice of the session. Advance notice must be provided for specific topics if the body is reasonably aware that these specific topic(s) will be raised during public comment.
Members of the public may provide public comment on any subject, but members of the governing body are permitted only to discuss or consider subjects for which advance notice has been provided.
Texas policy sources: Tex. Govt. §551.001; Texas Attorney General Opinion LO96-111 (1996); Texas Attorney General Opinion JC-0169 (2000)
Unless expressly prohibited within state law, the public, regardless of whether they are Texas citizens, is guaranteed access in any form (including electronic) to state and municipal government records and documents. This includes non-confidential records created by or on behalf of government bodies while engaged in official business.
Each governing body determines how long its information will be preserved for public access, within any guidelines set by the state.
Requests for information generally must be responded to within 10 business days, unless the governing body has set a reasonable alternative deadline. Exceptions to these public information laws are expressly stipulated for requests from individuals who are incarcerated.
Texas policy sources: Tex. Govt. §552.001-.004; §552.028-.029; §552.221 (Texas Public Information Act)
National groups devoted to expanding public participation in government processes have noted that many of the nation’s state and municipal laws that guide public participation are outdated; these laws predate modern internet communication and recent innovations in participatory processes. Elsewhere in Texas, one approach that has been used to expand government transparency and increase public participation in decision-making is “open government.” The City of Austin has joined the Open Government Partnership, an international effort seeking to increase government transparency and responsiveness. Through this process, Austin engaged in an extensive evaluation process and is currently drafting recommendations to increase both the efficiency and access to city meetings.
While state law does address some aspects of modern technology as regards public participation, e.g., videoconferencing, other aspects of today’s technology are not addressed. For example, while prior court rulings and Texas Attorney General opinions make it clear that a “walking quorum” violates Texas law1, legislation has not yet explicitly addressed how this applies to discussion and deliberation via social media.
Within Harris County, meetings of municipal bodies in Harris County vary widely in how they structure public participation and public comment; several examples are highlighted below.
Houston City Council meets twice a week: once (on Tuesday afternoons) for public comment, limited to 3 minutes per person, and once (on Wednesday mornings) for deliberations. Public comment speakers must sign up ahead of time, either by calling or appearing at the Office of the City Secretary.
The Pasadena City Council, representing the second largest city in Harris County, meets once a week (on Monday evenings). Public comment speakers submit request cards at the meeting to speak for up to 3 minutes each. Public comment for issues not on the agenda is limited to 20 minutes at the beginning of each meeting, with additional non-agenda comment permitted at the end of the meeting. For issues on the agenda, public comment is permitted during the public hearing section of each meeting.
The Harris County Commissioners Court meets twice a month (on Tuesday mornings). Public comment is held at the end of the meeting. For issues on the agenda, individuals may speak for up to three minutes. For issues not on the agenda, individuals who have not recently spoken before the court on the issue may speak for up to three minutes; if they have spoken about this issue during one of the past three Court meetings, they may speak for up to one minute.
Houston ISD meets once per month (on Thursday, early evening). For issues not on the agenda, individuals may speak for up to one minute. For issues on the agenda, individuals may speak for up to two minutes; a maximum of 30 minutes of public comment is permitted per agenda item. Advance registration prior to 9:30 a.m. on the day of the meeting is required for any member of the public who wishes to speak.
References
1) Weyandt, R. 2017. “Independent Reporting Mechanism (IRM): Austin Progress Report 2017.” Open Government Partnership. Retrieved from https://www.opengovpartnership.org/sites/default/files/Austin_Final-Report_2017_for-public-commments.pdf
2) The Office of the Attorney General of Texas: 2018. “Open Meetings Handbook 2018.” Retrieved from https://www.texasattorneygeneral.gov/sites/default/files/2018-06/OMA_handbook_2018.pdf
3) Office of HISD Board Services. “Registering to Speak at the Regular HISD Board Meeting.” Houston Independent School District. Retrieved from https://www.houstonisd.org/cms/lib2/TX01001591/Centricity/Domain/7936/SpeakerRegistForm05-18%20Rev.pdf.
4) Houston City Council. 2018. “City of Houston.” Retrieved from http://www.houstontx.gov/council/meetingsinfo.html
5) Leighninger, M. October 2013. “Making Public Participation Legal.” Working Group on Legal Frameworks for Public Participation. Retrieved from http://ncdd.org/main/wp-content/uploads/MakingP2Legal.pdf
6) Resolution No: 9376. 2014. “City of Pasadena.” Retrieved from https://www.cityofpasadena.net/wp-content/uploads/sites/21/City-Council-Meeting-Policy.pdf
Rights to free speech and assembly are guaranteed; over time, courts have permitted certain specific limitations to these rights. While free speech is generally protected in public venues, private property owners may restrict speech on their property.
Federal policy source: U.S. Constitution, 1st Amendment
Individuals’ rights to speak, write, and publish their opinions are protected, regardless of the subject. Individuals may peaceably assemble as a group to pursue the common good, including in response to actions of the government.
Texas policy source: Texas Constitution, Article I, Sections 8, 27
Public employees are prohibited from organizing together to stop work or strike against a state or municipal entity. Those who do will lose all rights, benefits, and privileges associated with public employment.
Texas policy source: Tex. Govt, §617.003
An employer or supervisor may not restrict or threaten a worker who misses work to attend a precinct-level political convention or to serve as a delegate at a county, district, or state convention. Such attendance is job-protected leave, but the time off does not need to be paid.
Texas policy source: Tex. Elec. §161.007
When 50 or more individuals come together as a group in common purpose, in a non-regularly organized activity, it is considered a “special event.” Prior written permission from the county precinct’s Park Superintendent is required for any special event in county-owned parks. Specific liability insurance coverage and security provision are required for all special events.
Harris County policy source: Rules and Regulations for County Parks in Harris County, Texas
Permits and a processing fee are required when more than 75 people assemble in a city-owned park. The city may deny permits for a variety of reasons, including that the space is already reserved, plans do not sufficiently provide for security or traffic control, safety, health, or sanitation services, or “the size or nature of the special event is inappropriate for the area requested.” If the denial is due to a space mismatch, the city is expected to suggest alternative areas if possible. Insurance coverage must be maintained by the event organizer, unless expressly waived by the City.
Houston policy sources: Houston Code of Ordinances Sec. 25.1-8, 14; Houston Code of Ordinances Sec. 32.60
Any procession where people walk together to express a specific view(s) is considered a “parade.” Permits are required for parades on city streets that involve more than 250 individuals, over 12 vehicles, or exceed one mile in distance.
Parades held downtown must be completed within three hours or less on a weekend or holiday, and on a weekday between 9 am – 11 am, 1 pm – 4 pm, 7 pm – 10 pm. Parades held outside of downtown must be completed within three hours or less; parades held on non-weekend or holiday days must be no longer than one hour and must start at 10 am, 2 pm, or 7 pm.
The City may deny permits for a variety of reasons, including the organizer’s inability to meet the ordinance’s terms.
Houston policy source: Houston Code of Ordinances Sec. 25.102-114
Houston bans possession of a stick, rod, plank, pipe, club, or other similar object while participating in a public assembly, even when the object is part of a sign. Some exceptions are outlined for small wood objects.
Houston policy source: Houston Code of Ordinances Sec. 28.33
While the U.S. Constitution specifically supports individuals’ right to assemble together in support or opposition to government action, courts have permitted governments to place certain restrictions on this right. As the ACLU of Texas notes in its “Free Speech and the Right to Protest” fact sheet, governments are limited in their ability to institute restrictions based on the specific ideas or views people express, but they can place restrictions on, when, where, and how speech is expressed. This means that states and municipalities can place their own, varying restrictions on public assembly.
Such restrictions emerged as an issue in Houston in 2006. The City of Houston rejected requests by the Service Employees International Union (SEIU) to hold parades, marches, and rallies as part of a janitors’ strike. SEIU sued the City; four years later, a federal circuit court ruled that several of the city’s limitations on public assembly were unconstitutional – including certain noise requirements, specific limitations on when parades could be held, and the lack of clear definition for defining the “public gatherings” for which permits were required.
Since this ruling, the City of Houston has changed several ordinances related to public assembly, including allowing parades to occur on any weekday and instituting a minimum of 75 people before requiring a permit for a group to assemble in a City park.
On a state level, while recent years have seen teachers and other government employees go on strike in other states, Texas explicitly forbids public employee strikes. In 39 states, public employees are either forbidden from organizing together to strike, with penalties varying widely, or no right to strike is recognized.2
References
1) Free Speech and the Right to Protest. 2018. American Civil Liberties Union of Texas. Retrieved from https://www.aclutx.org/en/know-your-rights/freedom-of-speech-right-to-protest
2) Service Employees, Local 5 v. City of Houston, 595 F. 3d 588 (5th Cir. 2010). 5 February 2010. Court Listener. Retrieved from https://www.courtlistener.com/opinion/70845/service-employees-local-5-v-city-of-houston/
3) Ortiz, A. 21 January 2016. “City of Houston Will Require Permits for Events at Parks with 75 Participants or More.” Houston Public Media. Retrieved from https://www.houstonpublicmedia.org/articles/news/2016/01/21/134863/city-of-houston-will-require-permits-for-events-at-parks-with-75-participants-or-more/
4) Harris County. n.d. Rules and Regulations for County Parks in Harris County, Texas. (n.d.). Retrieved from https://www.hcp4.net/portals/1/Launch/Community/Parks/Parks%20Regulations/Park%20Rules%20Book%200815.pdf
5) League of Minnesota Cities. 1 December 2017. Information Memo: First Amendment Concepts for Protests in Cities. League of Minnesota Cities. Retrieved from https://www.lmc.org/media/document/1/firstamendmentconceptsforprotestsincities.pdf?inline=true
6) Samuels, A. 5 April 2018. “Teachers are striking in other states. Texas teachers can’t do that.” The Texas Tribune. Retrieved from https://www.texastribune.org/2018/04/05/texas-public-school-teachers-strike-union-oklahoma/
7) Bass, K. 2014. “Overview: How different states respond to public sector labor unrest. OnLabor. Retrieved from https://onlabor.org/overview-how-different-states-respond-to-public-sector-labor-unrest/
8) Sanes, M. & Schmitt, J. 2014. Regulation of public sector collective bargaining in the states. Center for Economic and Policy Research. Retrieved from http://cepr.net/documents/state-public-cb-2014-03.pdf
Texas permits municipalities to regulate “hawkers; peddlers; and pawnbrokers.” In Houston, registration is required for any individuals or nonprofit organizations who solicit charitable funds. Individuals soliciting on behalf of a political group or organization are explicitly excluded from these requirements.
State policy source: Tex Loc. Govt. §215.031
Local policy source: Houston Code of Ordinances Sec. 36.71-36.85
Political canvassing refers to going door-to-door for a candidate or political issue and/or distributing materials on behalf of a candidate or issue. In multiple cases, the U.S. Supreme Court has ruled against government-imposed laws that limit canvassing for non-commercial purposes (including political canvassing), allowing such canvassing without permits or advance notice between 9 a.m. – 9 p.m.
While an individual property owner may limit canvassers, municipal laws imposing restrictions on political canvassing, such as permitting requirements or licensing fees, have often faced court challenges. Commonly, when municipalities or ordinances impose bans or restrictions on solicitation, these usually refer to sales activities, not to political activities.
The Texas Municipal League offers an example municipal ordinance on solicitation that includes restrictions on where canvassers can leave flyers and the hours when they may visit properties without an invitation. While some Texas municipalities have adopted such restrictions, there is no indication that Harris County or the City Houston have done so. In fact, the City of Houston explicitly excludes political canvassing from its definition of soliciting and associated restrictions.
References
1) Republican Party of Texas. n.d. “Grassroots Guide: Texas Laws Every Grassroots Worker Should Know.” Retrieved from https://www.texasgop.org/wp-content/uploads/2018/04/Grassroots-Guide_-Texas-Laws-for-Grassroots-Workers.pdf
2) Justia US Law. n.d. “Speech Plus- The Constitutional Law of Leafleting, Picketing, and Demonstrating.” Retrieved from https://law.justia.com/constitution/us/amendment-01/17-speech-plus.html#tc-1563
3) American Civil Liberties Union of Texas. 14 March 2013. “Municipal Restrictions on Door-to-Door Canvassing Violate First Amendment.” Retrieved from https://www.aclu.org/news/municipal-restrictions-door-door-canvassing-violate-first-amendment
4) American Civil Liberties Union of Pennsylvania. n.d. The Right to Canvass: Frequently Asked Questions. Retrieved from https://www.aclupa.org/files/6715/3728/3487/Canvassing_FAQ.pdf
5) Texas Municipal League. 2007. “An Ordinance Regulating Peddlers…” Retrieved from https://www.tml.org/legal_pdf/2007-Peddler.pdf
6) Mueller, L. 2007. “Legal Q&A.” Texas Municipal League. Retrieved from https://www.tml.org/legal-qna/2007July-LM.pdf