IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. 254-02

 

JOHN DOE, Appellant

v.


THE STATE OF TEXAS



ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY

Johnson, J., delivered the opinion of the Court in which Meyers, Price, Keasler, Hervey, and Cochran, J.J., joined. Keller, P.J., filed a concurring opinion. Holcomb, J., filed a dissenting opinion. Womack, J., dissented.
 

O P I N I O N


We granted the state's Petition for Discretionary Review in this case to determine whether 255.001 of the Texas Election Code (1) passes constitutional muster. We hold that it does not.

During a campaign for Dallas municipal offices, appellant created and circulated a political flyer that described an incumbent candidate for the Dallas City Council as "Pinocchio." The flyer was published anonymously and distributed by a publishing company through a bulk mailing. After the election, the Dallas County District Attorney's office received a complaint pointing out that the flier, contrary to the requirements of 255.001, did not contain the name and address of the person contracting for its publication. Ultimately, appellant was indicted for violating 255.001. In response to the indictment, appellant filed a motion to set it aside, contending that 255.001 was unconstitutional because it sought to regulate core political speech and was not narrowly tailored to serve an overriding state interest.

Appellant is correct. We hold that 255.001, on its face, violates the First Amendment to the United States Constitution and affirm the court of appeals' opinion upholding the trial court's dismissal of the charges against appellant. (2)

The United States Supreme Court has long held that the distribution of political leaflets that advocate controversial viewpoints is the essence of First Amendment expression. See e.g. International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992); Lovell v. City of Griffin, 303 U.S. 444 (1938). In 1995, the Supreme Court held that no form of speech is entitled to greater constitutional protection than political speech and, when a law burdens core political speech, "exacting scrutiny" must be applied and the statute may be upheld only if it is narrowly tailored to serve an overriding state interest. McIntyre v. Ohio Elections Com'n, 514 U.S. 334, 347 (1995). (3)

The Supreme Court also held that compelled identification of the author against that person's will is particularly intrusive, as it reveals unmistakably the content of his or her thoughts on a controversial issue. Id. at 355.

The Texas Legislature has adopted laws requiring disclosure to be made in political advertisements. Under 255.001, any person who enters into a contract or other agreement for the printing, publication, or broadcasting of a political advertisement must identify, within the advertisement, the person who made the contract or the person he represents. Political advertising includes any communication supporting or opposing a candidate for public office or an office of a political party. Tex. Elec. Code 251.001(16) (2001). The disclosure requirement applies to all political advertisements whether published in the print media, broadcast by radio or television, or appearing in a pamphlet, circular, flier, or other similar form of written communication. Id.

Although the language of 255.001 speaks in terms of "contracts or other agreements," the substance of the statute, by requiring the author of an advertisement to identify himself, regulates political advertising and, therefore, the content of core political speech. See McIntyre, 514 U.S. at 347. Statutes that regulate the mechanics of the electoral process are subject to a lower level of scrutiny than statutes that regulate constitutionally protected speech because they regulate only the election process, not the content of political speech. McIntyre at 345. It is the substance of the statement being published that determines whether the statute applies, and it is the content of the statement that must be augmented with the name and address of the speaker.

The state argues that 255.001 should be analyzed under a lower level of scrutiny because it does not directly forbid speech, but merely prohibits commercial agreements to create and broadcast anonymous political advertising. However, a statute that regulates political speech does not have to ban speech to be subject to exacting scrutiny.

Freedom of speech includes the right to engage in the dissemination of ideas without being publicly identified. Talley v. California, 362 U.S. 60, 65 (1960). To comply with 255.001, however, a person must add personal information to the text of his statement. A law mandating that additions be made to the text of a statement curtails the author's freedom to omit any information he chooses and violates the First Amendment. Talley, 362 U.S. at 64. Anonymity allows individuals to discuss matters of public importance without fear of reprisal. Buckley v. Am. Constitutional Law Foundation, 525 U.S. 182, 198-99 (1999). The ability of an author or other sponsoring party to remain anonymous while engaging in political speech is a right that may be burdened only in the face of the most compelling state interest. McIntyre, 514 U.S. at 341-42.

Because it burdens core political speech, 255.001 is subject to exacting scrutiny and can be upheld only if it is narrowly tailored to serve an overriding state interest. Id. at 347. Further, the state must do more than simply assert that it has an interest; it must also demonstrate that there are actual problems that arise when persons enter into agreements to print, publish or broadcast political advertising without identifying themselves. United States v. National Treasury Employees Union, 513 U.S. 454, 475 (1995); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 664 (1994) ("When the Government defends a regulation on speech . . . it must do more than simply 'posit the existence of the disease to be cured.'. . . It must demonstrate that the recited harms are real, . . . and that the regulation will in fact alleviate these harms in a direct and material way.")

Here, the state has identified three interests by which it seeks to justify the requirements imposed by 255.001: 1) deterring and punishing political corruption; 2) notifying the public of any allegiance a particular candidate might have toward the publisher of the communication; and 3) providing a method of detecting those expenditures that appear to be from an individual, but really come from political action committees or corporations.

It has been consistently recognized that there must be substantial regulation of elections if they are to be fair, honest, and orderly. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997); Storer v. Brown, 415 U.S. 724, 730 (1974). The government's interest in preventing and detecting corruption in campaign finances may be of sufficient importance to outweigh possible infringement on constitutional rights. Buckley v. Valeo, 424 U.S. 1, 66-7 (1976). The state's interests in this case, therefore, are compelling, but this is only half of the analysis. The burden placed on the right to freedom of speech under 255.001 must also be sufficiently narrow and must impose as few restrictions as possible to meet the state's goals.

In McIntyre v. Ohio Elections Commissions, the Supreme Court addressed an Ohio law mandating that any published statement designed to influence voters in an election with respect to a candidate or issue must contain the name and address of the person or organization responsible for its issuance. McIntyre, 514 U.S. at 357. The Court held the statute unconstitutional because the state's interest in providing voters with additional relevant information did not justify the requirement that a writer make statements or disclosures he would have otherwise omitted. Id. The Court also held that Ohio's prohibition against anonymous political statements was not its principal weapon against fraud, but was merely a deterrent and aid to enforcement. Id. at 350-51. The ancillary benefits to the state did not justify the broad reach of the statute. Id. at 350.

Here, the court of appeals was correct in holding that the Supreme Court's analysis in McIntyre applies with equal force to 255.001. (4) The state contends that 255.001 serves a compelling interest in deterring and punishing political corruption, but it did not specify in the court of appeals, nor does it specify here what types of overriding political corruption 255.001 is intended to address. Nothing in 255.001 limits its application to wrongful actions such as the publications of statements that are false, misleading, fraudulent, or libelous. The statute applies with equal force to all political advertisements regardless of their accuracy or veracity. Further, extant state laws deter false and fraudulent statements through recognized tort claims. See e.g. Tex. Civ. Prac. & Rem. Code 73.001 (2002); Tex. Torts & Rem. 52.03 (2002). Section 255.001 merely provides a deterrent and an aid to law enforcement and, therefore, cannot justify such a sweeping prohibition on anonymous political speech. McIntyre, at 350.

To the extent that 255.001 is aimed at abuse or corruption in campaign financing, the state's interests are already addressed by the Election Code's numerous restrictions on contributions and expenditures and its extensive campaign financing reporting requirements. See e.g. Tex. Elec. Code chs. 253-54 (2001). Campaign finance laws already require accountability and serve to inhibit campaign finance abuse or corruption. Although the identification of a person responsible for a political advertisement may help to ensure that contributions and expenditures are accurately reported, this ancillary benefit cannot justify 255.001's sweeping infringement on protected political speech.

Finally, the state's interest in ensuring that political advertising is attributed to its originating and actual source is already considered. Texas Election Code 255.004 provides that it is an offense to agree to publish a political advertisement that "purports to emanate from a source other than its true source." Tex. Elec. Code 255.004 (2001). The Code also prohibits contributions or expenditures in another's name unless the person discloses in writing to the recipient or beneficiary the name and address of the person actually making the contribution. Tex. Elec. Code 253.001 (2001).

The second interest urged by the state is notifying the public of a candidate's possible allegiances or quid pro quo agreements. While we agree that this is a compelling state interest, 255.001 does little to enhance protections already available under the Election Code. See e.g. Tex. Elec. Code chs. 253-54 (2001). Campaign finance reports are required by the state, are preserved for two years, and are open to public inspection. Id.; Tex. Elec. Code 254.040-0401. These reports directly inform the public of a candidate's possible allegiances while employing a disclosure requirement less burdensome on individual rights. Buckley v. Valeo 424 U.S. 1, 66-68 (1976); McIntyre, 514 U.S. at 355.

Finally, the state argues that 255.001 provides a method of detecting expenditures that are disguised and/or unreported or that appear to be made by individuals when, in fact, they are made by political committees or corporations. Again, there are alternative, more effective ways of monitoring this issue. Political committees are required to report their expenditures. Tex. Elec. Code 254.121-163. Corporations are prohibited from making contributions to, or expenditures on behalf of, a specific candidate. Id. Thus, the statutory reporting requirements and prohibitions on expenditures are the principal weapon against misleading activities, not 255.001. The state asserts that 255.001 prevents candidates from exceeding contribution limits by spending funds on anonymous political advertising. Once again, this is simply an aid to the enforcement of other statues and cannot not preserve the constitutionality of 255.001. McIntyre at 350.

Lastly, the state urges this Court to hold that 255.001 is more narrowly tailored than the statute in McIntyre because it regulates only agreements between two or more people. The state claims that this narrowing makes the holding of McIntyre inapplicable. While the requirements of 255.001 arguably may be avoided by self-publication of a political advertisement, requiring such avoidance severely limits the opportunity to engage meaningfully in the anonymous and constitutionally protected dissemination of political ideas to a numerically insignificant portion of the electorate.

Moreover, should a person choose to distribute his political advertisement personally, he will likely disclose his connection to the advertisement in the process. At best, the statute prevents all but the most resourceful individuals from engaging in publication of political advertising without revealing their identity. Further, limiting anonymity to individuals acting alone also prevents groups who espouse political viewpoints from publishing their message. This flies in the face of the Supreme Court's holding in Talley, 362 U.S. at 64.

We conclude that 255.001 is not sufficiently narrowly tailored to serve an overriding state interest without placing an undue burden on constitutionally protected political free speech. The statute's broad proscription on anonymous political speech reaches well beyond the conduct asserted by the state to be the target of the statute . To the extent that 255.001 has an impact on the targeted conduct, it is only as a deterrent and aid to the enforcement of other statutes; this is simply not permitted under the First Amendment. A state cannot significantly infringe upon an individual's freedom of speech to obtain the ancillary benefit of detecting violations of other laws. Therefore, we hold that 255.001 is unconstitutional on its face.

We affirm the judgment of the court of appeals.

Johnson, J.



Date Delivered: May 14, 2003

En banc

Publish

 

 



1. 255.001 states:

(a) A person may not knowingly enter into a contract or other agreement to print, publish, or broadcast political advertising that does not indicate in the advertising:

(1) that it is political advertising;

(2) the full name of either the individual who personally entered into the contract or agreement with the printer, publisher, or broadcaster or the person that individual represents; and

(3) in the case of advertising that is printed or published, the address of either the (cont.) individual who personally entered into the agreement with the printer or publisher or the person that individual represents.

(b) This section does not apply to tickets or invitations to political fund-raising events or to campaign buttons, pins, hats, or similar campaign materials.

(c) A person who violates this section commits an offense. An offense under this section is a Class A misdemeanor.

2. We find the court of appeals opinion to be well written and well reasoned. We have adopted much of the lower court's opinion, written by Justice Morris.

3. In McIntyre, the Court found an Ohio statute almost identical to the one at issue here unconstitutional because the state failed to show that its interest in preventing the misuse of anonymous election-related speech justified a prohibition of all uses of that speech.

4. In fact, Justice Scalia's dissent in McIntyre noted that the majority opinion affected similar laws in twenty-four states including Texas Election Code 255.001.