Turning the First Amendment on its head

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By Dan Kennedy

Robert Ambrogi has posted a 36-page section of the report ordered up by the Boston City Council as part of its crusade to get out of having to comply with the state’s open-meeting law. Ambrogi’s comments are on the mark, especially with respect to the councilors’ argument that the law impinges upon their own First Amendment rights:

How does that saying go about the devil reading the Bible to his own ends? That was all I could think of as I read a report arguing that the First Amendment gives Boston city councilors the right to conduct the people’s business behind closed doors….

The … premise is that this “prohibition” on private speech between public officials violates their free-speech rights. That is the most extreme contortion of the First Amendment I’ve ever heard or read.

Ambrogi concludes with a hope that councilors will send the report “straight to the circular file.” But that’s only going to happen if the press and the public pressures them to do so.

The original Boston Herald story made it pretty clear that some influential members, including president Maureen Feeney and former president Michael Flaherty, think weakening the public’s right to know is a neat idea.

The council, having been found in violation of the state’s open-meeting law earlier this year, came up with an all-too-typical response. Feeney told the Herald that the law presents “challenges” and is “confusing.”

Before I go any further, you should know that the law does nothing more than require governmental bodies such as the city council to conduct the public’s business in public, and to provide adequate notice of when its meetings will take place.

Flaherty was quoted as saying that the law creates a “chilling effect,” claiming, “You can’t even have a conversation with colleagues in the hallway or in a session.” That’s an interesting observation. The law says that a quorum — that is, a majority — of members cannot discuss official business outside the context of a legal, publicly announced meeting.

If Flaherty had said, You can’t even have a conversation in the hallway with six or more colleagues about city business, that would be accurate. It would also underscore the absurdity of his complaint.

The law doesn’t even require public meetings when there is a good reason for them to be held behind closed doors. Various exceptions are allowed, most typically to discuss contract negotiations and lawsuits.

Any journalist, community activist or public watchdog who’s spent any time dealing with municipal government will tell you that the open-meeting law ought to be strengthened, especially with regard to punishing violators.

The law is a burden only to public officials who think the public is a burden.

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