Like Judge Holcomb (and Chief Justice Rehnquist, Justice Scalia, and Justice Thomas), I disagree with the Supreme Court's analysis in McIntyre. (1) And while McIntyre would nevertheless be determinative in this case if Texas's statute were sufficiently comparable to Ohio's, I believe that the differences in the two are such that McIntyre does not compel the conclusion that Gov't. Code Section 255.001 violates the Constitution.
The primary difference between the Ohio and Texas statutes is that the Ohio statute required disclosure of the name of the author of campaign literature and the Texas statute does not. Gov't Code Section 255.001 allows the author of political advertising to remain anonymous as long as the person contracting with the printer identifies himself.
In his concurring opinion in McIntyre, Justice Thomas eschewed the Court's analysis as being "largely unconnected to the Constitution's text or history." (2) He determined nevertheless that the phrase "freedom of speech, or of the press," as originally understood, protected anonymous political leafletting. (3) After reviewing the weight of the historical evidence, he concluded that, "the Framers understood the First Amendment to protect an author's right to express his thoughts on political candidates or issues in an anonymous fashion." (4) I agree with Justice Thomas's method, and I agree with his conclusion. For reasons other than those articulated by the Court, then, I would hold that Section 255.001 violates the Constitution.
I concur only in the judgment.
Delivered: May 14, 2003
1. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995).
2. Id. at p. 371 (Thomas, J. concurring).
3. Id. at p. 359 (Thomas, J. concurring).
4. Id. at p. 371 (Thomas, J. concurring).