104 Iowa L. Rev. 2055 (2019)

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Abstract 

The right to free expression is not diminished after a person takes the oath of office and becomes an elected official. Yet a close examination of Iowa’s open meetings law (Chapter 21 of the Iowa Code) reveals that the law suffers serious First Amendment deficiencies. Because the law limits the manner in which various officials may communicate with their colleagues, it likely constitutes a content-based restriction on speech. Even under a more lenient content-neutral analysis, the open meetings law fails to provide ample alternative channels of communication for officials to carry on general discussions of policy with their colleagues. Policy problems compound the law’s constitutional flaws, including its potential to prevent agencies from working effectively, its tendency to discourage, rather than encourage, participation in local government, and its uneven application across agencies within state government. Proposed legislative improvements include defining “deliberation” in the law, opening more channels of communication between elected officials, and eliminating fines for unintentional violations of the law. Judicial improvements include adopting a more flexible approach for assessing violations of the law.