Is the United States of America an exceptional nation? I believe so for a number of critically important reasons. When I heard a recent immigrant from England asked this question, I listened with curious anticipation for his answer. After an extended pause, a deep breath, and with apparent passion and conviction in his voice, he responded, “Absolutely! Although, it is at risk.” He continued, “For a start, it is the only country in the world in which you have an untrammeled right to free speech that is unprecedented in history and unmatched.” He went on to mention other liberties we enjoy by saying “There really is not another place where you can become of that country, and nobody will question you.” The totality of this response inspired me, but the specific mention of the “untrammeled right of free speech” caught my attention.
The Bill of Rights of the United States Constitution was ratified effective December 15, 1791. Amendment I states the following.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.
What do we do when competing values are in conflict? We absolutely value this “untrammeled right to speak freely.” We cannot imagine any governmental authority acting to stifle that right, prohibiting us speaking in public settings or enjoying private conversations with friends, family members, professional colleagues, or even casual acquaintances.
We also value transparent government in which we the people may observe our elected and appointed representatives as they conduct the business of government at all levels. How else can we hold them accountable? How else can we know they are acting in the best interest of their constituents? Furthermore, we most certainly value justice, the consistent application of the laws of the land.
Suppose you are at a dinner table in a restaurant with another person or even several others. It might be a social occasion and not an official meeting of any kind. Suppose you are with fellow members of a board of directors, a city council, a county commission, or some other officially recognized governing body. In the state of Florida, as well as in many other states, you would be in violation of the law and subject to severe penalties if you discussed certain issues, concerns, or topics. This would be true whether you are alone with that person in a private setting or part of a larger group in a public place such as a restaurant. People have been prosecuted for violating this law. The legal consequences are serious. Ironically, if you are a member of the state legislature, you would be exempt from this limitation of your right to speak freely and privately to other members of the legislature. How can this be?
Of course, I’m talking about the Florida Sunshine Law. The law was established many years ago to guarantee open and transparent government. It is comprehensive and well tested by numerous cases. Every year various public boards, commissions, and local units of government are reminded of this law which serves as a guide to their deliberations and operations.
According to the Sunshine Law, if two or more members of a public body are together, except during an official meeting conducted in the public after due notification, they are prohibited from discussing anything that might possibly come before that body for action or any consideration in the foreseeable future. The purpose of this provision is obvious, and most people are sympathetic to the justification of the legislature in responding to the concerns of citizens that special deals were being worked out in the proverbial smoked-filled rooms. The law intends to bring all public deliberations under a very bright light, the sunshine, so that the actions of these governing boards remain open to review and accountability. In the state of Florida, thousands of governing boards fall under the Sunshine Law. You can read about this law at MyFlSunshine.com.
The Florida Legislatures that created and perpetuated the Sunshine Law weighed the matter and decided that transparent government trumps freedom of speech, except for themselves. Why the exemption? They realized it would be very difficult, if not impossible, to conduct the business of the legislature if they were prohibited from privately discussing the important issues coming before them. Of course, any board, commission, or council could make the same argument. Apparently, the Florida Legislature decided that these local bodies are not to be trusted. Ironically, local governing boards are closer to the people who hold them accountable for their actions. In truth, local units of government are more directly accountable to their constituents than the state legislature and no less likely to violate the public’s trust.
Over the years, I’ve participated in and observed many public governing boards struggling with important decisions. Occasionally, it seemed painfully obvious that private conversations might have improved the possibility of wise decisions. Members of these boards, acting in good faith and with honest intentions, could sometimes benefit from frank deliberations in private settings. Unfortunately, throughout history such private sessions too often resulted in abuses of power, back room deals, politics before public interest, personal intimidation, and a myriad of other wrongs.
The Sunshine Law limits the rights of certain individuals in order to protect the interests of the greater community, but bad or poorly considered decisions can be an unintended consequence. The individuals making these decisions are not free to speak to each other in private. They may not know or appreciate information or the interests of the other members of the governing body. They may be reluctant to share their own preliminary thinking in a public setting for fear of being misunderstood.
So, it turns out that the untrammeled right of free speech is not so untrammeled after all. In my opinion, the Florida Sunshine Law is wrong to limit freedom of speech. Numerous checks and balances exist that prevent members of boards from acting irresponsibly and without accountability. The United States Constitution should trump the Florida Sunshine Law. Better government results from transparency and freedom of speech, not from just one or the other.