Untitled Texas Attorney General Opinion

OFFICE OP THE ATTORNE” GENERAL. STATE OF TEXAS
JOHN CORNYN
June 29,200O
The Honorable Debra Danburg Opinion No. JC-0243
Chair, House Committee on Elections
Texas House of Representatives Re: Constitutionality of section 255.001(a), Texas
P. 0. Box 2910 Election Code, in light oftheunited States Supreme
Austin, Texas 78768-2910 Court’s decision in McIntyre v. Ohio Elections
Commission, 514 US. 334 (1995) (RQ-0181-JC)
Dear Representative Danburg:
You have asked the opinion of this office as to the constitutionality of section 255.001(a) of
the Election Code in light of the decision of the United States Supreme Court in McIntyre v. Ohio
Elections Commission, 514 U.S. 334 (1995), that a similar Ohio statute prohibiting anonymous
campaign literature violated the First Amendment. Because McZntyre itself is in certain respects
ambiguous, because lower courts have differed in their approach to these ambiguities, and because
neither the United States Supreme Court, the Texas Supreme Court or Court of Criminal Appeals,
nor the United States Court of Appeals for the Fifth Circuit have spoken on these issues, our advice
must be limited to a review ofthe relevant arguments on these unsettledmatters. However, it is clear
on the basis ofMcZnfyre that to the extent that section 255.001(a) attempts to prevent an individual
from creating and distributing anonymous printed material from his own resources advocating a
position on a particular issue - rather than the choice of a particular candidate - in an election, it
violates the First Amendment and is void. Because Mclntyre may be read narrowly, and in
accordance with the Texas Supreme Court’s declaration that “we should, if possible, interpret
statutes in a manner to avoid constitutional infirmities,” Osterberg v. Pecu, 12 S.W.3d. 3 1,5 1 (Tex.
2000), as well as the directive of section 3 11.021( 1) of the Government Code to the same effect, we
presume it to be constitutional in all other respects.
Section 255.001(a) ofthe Election Code reads:
(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,
The Honorable Debra Danburg - Page 2 (JC-0243)
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 individual who personally entered
into the agreement with the printer or publisher or the person
that individual represents.
TEX.ELEC.CODEANN. § 255.001(a) (Vernon Supp. 2000).
Political advertising is defined for the purpose of Title 15 of the Election Code as follows:
(16) “Political advertising” means a communication
supporting or opposing a candidate for nomination or
election to a public office or office of a political party, a
political party, a public officer, or a measure that:
(A) in return for consideration, is published in a
newspaper, magazine, or other periodical or is broadcast by
radio or television; or
(B) appears in a pamphlet, circular, flier, billboard
or other sign, bumper sticker, or similar form of written
communication.
Id. 5 251.001(16) (emphasis added).
The United States Court of Appeals for the Fifth Circuit held in a case involving a television
broadcaster that the “sponsorship identification requirement” of section 255.OOl(a)‘s statutory
predecessor did not violate the First Amendment, because any infringement on the broadcaster’s
rights was “of an extremely limited nature” while “the state interest [in the preservation of the
integrity of the electoral process] is compelling.” KWE, Inc. v. Moore, 709 F.2d 922,937 (5th Cir.
1983), u#‘d, 465 U.S. 1092 (1984). However, the KWE case precedes Mclnfyre, about which you
inquire, and as we shall discuss may to some extent have been overturned sub silentio by McZntyre.
Accordingly, it is to that case we must turn.
In McZntyre, the Supreme Court considered an Ohio statute which forbade any person to
“write, print, post, or distribute, or cause to be written, printed, posted, or distributed, [a publication]
designed to promote the nomination or election or defeat of a candidate, or to promote the adoption
or defeat of any issue,” unless the publication disclosed the identity of the person or organization
issuing the publication.’ Mclnfyre, 514 U.S. at 338 n.3 (quoting OHIO REX. CODE ANN.
‘TheCourtnotedthat,whileanothersectionofthesamestahlteprohibitedanonymouspoliticaladvertisements
(continued...)
The Honorable Debra Danburg - Page 3 (JC-0243)
5 3599,09(A) (1988)) (repealed 1995) (current version at OHIOREV. CODEANN. $ 3517.20). The
petitioner’s decedent, Mrs. McIntyre, had distributed leaflets urging the rejection of a proposed
school tax levy, some of which did and some of which did not identify her as the author. An official
of the school district complained to the Ohio Elections Commission, which fined Mrs. McIntyre one
hundred dollars for violating section 3599.09(A). See id. at 334.
The Court held that “the category of speech regulated by the Ohio statute occupies the core
of the protection afforded by the First Amendment.” Id. at 346. Accordingly, the Court applied
“‘exacting scrutiny,’ [under which it] uphold[s] the restriction only if it is narrowly tailored to serve
an overriding state interest.” Id. at 347. The Court rejected Ohio’s proposed rationale for the statute,
that it provided “the electorate with relevant information” and that it prevented “fraudulent and
libelous statements.” Id. at 348. As to the first, the Court wrote that, “The simple interest in
providing voters with additional relevant information does not justify a state requirement that a
writer make statements or disclosures she would otherwise omit.” Id. As to the second, the Court
found the statute fatally overbroad: “As this case demonstrates, the prohibition encompasses
documents that are not even arguably false or misleading. It applies not only to the activities of
candidates and their organized supporters, but also to individuals acting independently and using
only their own modest resources. It applies not only to elections ofpublic officers, but also to ballot
issues that present neither a substantial risk of libel nor any potential appearance of corrupt
advantage. It applies not only to leaflets distributed on the eve of an election, when the opportunity
for reply is limited, but also to those distributed months in advance. It applies no matter what the
character or strength of the author’s interest in anonymity.” Id. at 351-52.
WhileMcZmyre holds the Ohio statute unconstitutional, however, it is less than clear whether
all statutes prohibiting anonymous political advertisements would be held constitutionally defective.
In distinguishing the disclosure requirements of the Federal Election Campaign Act of 1971 upheld
by the Court in BuckZcy v. V&o, 424 U.S. 1 (1976), Justice Stevens, for the majority, wrote:
The Federal Election Campaign Act . regulates only candidate
elections, not referenda or other issue-based ballot measures . . In
candidate elections, the Government can identify a compelling state
interest in avoiding the corruption that might result from campaign
expenditures. In short, although Buckley may permit a more
narrowly drawn statute, it surely is not authority for upholding Ohio’s
open-ended provision.
McZnfyre, 514 U.S. at 356. Justice Ginsburg, in her concurrence, underlines the apparent limits of
Mclntyre: “In for a calf is not always in for a cow. The Court’s decision finds unnecessary,
‘(...continued)
broadcastwer radio and television,“[n]o questionconcerningthat provisionis raised in this case. Our opinion,
therefore,discussesonly writtencommunicationsand, particularly,leafletsof the kid Mrs. McIntyredistributed.”
McIntyre,514U.S.at 338. We will considerthe effectofMcInlyreon statebroadcastrestrictions,particularlyin light
of KVUE, further infra.
The Honorable Debra Danburg - Page 4 (JC-0243)
overintrusive, and inconsistent with American ideals the State’s imposition of a fine on an individual
leafleteer who, within her local community, spoke her mind, but sometimes not her name. We do
not thereby hold that the State may not in other, larger circumstances require the speaker to disclose
its interest by disclosing its identity.” Id. at 358.
In his dissent, Justice Scalia notes the imprecision of the limit to which both the majority
opinion and Justice Ginsburg allude, and argues that it is unclear whether and to what extent the state
laws against anonymous political speech to which he has cited-a list that includes section 255.001,
id. at 377 n.2 -may be affected by the Court’s decision:
The Court’s unprecedented protection for anonymous speech does not
even have the virtue of establishing a clear (albeit erroneous) rule
of law. . [T]he opinion goes on to proclaim soothingly (and
unhelpfully) that “a State’s enforcement interest might justify amore
limited identification requirement.“. Perhaps, then, not all the
state statutes I have alluded to are invalid, but just some of them; or
indeed maybe all of them remain valid in “larger circumstances”! It
may take decades to work out the shape ofthis newly expanded right-
to-speak-incognito, even in the elections field.
Id. at 380-81.
The decisions of various courts and the opinions of various state attorneys general with
regard to election laws akin to that overruled in McIntyre have, unhappily, demonstrated the truth
of Justice Scalia’s prediction. A number of attorneys general have declared their state statutes
generally unconstitutional. See, e.g., Op. Del. Att’y Gen. No. 95-FBOl (Sept. 29,1995); Op. Mich.
Att’y Gen. No. 6895 (Apr. 8,1996); Op. Minn. Att’y Gen. No. 82t (Aug. 27,1997); Op. Neb. Att’y
Gen. No. 95040 (May 16,1995); Op. Neb. Att’y Gen. No. 95039 (May 15,1995) (proposed amend-
ments to correct constitutional defects of Nebraska prohibition on anonymous campaign literature
unavailing); Op. N.M. Att’y Gen. No. 97-01 (Jan. 3,1997); Op. Tenn. Att’y Gen. No. 95-090 (Aug.
29, 1995). State and federal courts have also held such statutes unconstitutional. See, e.g., Shrink
MO. Gov’t PACv. Muupin, 892 F. Supp. 1246 (E.D. MO. 1995), @d, 71 F.3d 1422 (8th Cir. 1995);
YesforLife PACv. Webster, 74 F. Supp2d 37 (D. Me. 1999); Stewart v. Taylor, 953 F. Supp. 1047
(S.D. Ind. 1997); West VirginiansforLij&Znc. v. Smith, 919 F. Supp. 954 (S.D. W. Va. 1996); State
v. Moses, 655 So. 2d 779 (La. Ct. App. 1995).
There have also, however, been a number of court cases and attorney general opinions which
have upheld such statutes, at least in part. See, e.g., Arkansas Right to Life State PACv. Butler, 983
F. Supp. 1209 (W.D. Ark. 1997), a#‘d, 146 F.3d 558 (8th Cir. 1998); Virginia Soc’yjior Human
Life, Inc. v. Caldwell, 152 F.3d 268 (4th Cir. 1998); Kentucky Right to Lzji?, Inc. v. Terry, 108 F.3d
637 (6th Cir. 1997); Vermont Right to L@ Comm., Inc. v. Sorrell, 19 F. Supp. 2d 204 (D. Vt. 1998);
Doe v. Mortham, 708 So. 2d 929 @a. 1998); 239 Op. Ala. Att’y Gen. No. 37 (May 15,1995); Op.
Md. Att’y Gen. No. 95-015 (May 16, 1995); Va. Rep. Att’y Gen. No. 170 (July 13, 1995).
The Honorable Debra Danburg - Page 5 (JC-0243)
In a scholarly opinion describing the state of the law, the Attorney General of Oregon noted,
“The differences reflect states’ and courts’ choices whether to read McZnfyre broadly or narrowly.
Read broadly, it applies to all anonymous prohibitions; read narrowly, it applies only to situations
that are identical to the precise one at issue in Mclntyre.” Op. Or. Att’y Gen. No. 8266
(Mar. 10,1999), 1999 WL 133100, at *5.
Generally, the courts and attorneys general who have readMcZntyre narrowly have construed
it to prohibit statutes which forbade anonymous political advertising in elections concerning ballot
issues (the situation with which the McIntyre court was presented), but not to prohibit such statutes
insofar as candidate elections are concerned. See, e.g., Kentucky Right to Life v. Terry, 108 F.3d at
647; Vermont Right to Life Comm., Inc. v. Sorrell, 19 F. Supp. 2d at 215. However, one attorney
general opinion and one court case, in narrowing Mclntyre, read it as a case about the First
Amendment rights of a single individual, the rather romantic lone pamphleteer hymned by both
Justice Stevens for the majority and Justice Ginsberg in her concurrence. The Attorney General of
Maryland, writing less than a month after Mclnfyre was handed down, took the view that “the better
interpretation of the Court’s decision is that it does not invalidate prohibitions on anonymous
campaign material as they may be applied to any other than an individual acting independently.”
Op. Md. Att’y Gen. No. 95-015 (May 16,1995), 1995 WL 313052, at *4.
Similarly, the Florida Supreme Court, in Doe v. Mortham, 708 So. 2d 929 (Fla. 1998), read
Mclntyre as applying to “the personal pamphleteering of ‘individuals acting independently and using
only their own modest resources,“‘Doe, 708 So. 2d at 934, quotingMcZntyre, 514 U.S. at 351, and
narrowed the Florida statute under consideration by holding that “only to the extent that the last
sentence in this section requires identification of independent advertisements made by individuals
does it run afoul of the First Amendment.” Id.
Neither the Texas Supreme Court or Court of Criminal Appeals, which have the power to
adopt a narrowing construction of section 255 .OO1(a), nor the United States Court of Appeals for the
Fifth Circuit has spoken on the issue before us. So far as we can determine, the Texas Supreme
Court has taken substantive note of McIntyre in only one case, Osterberg v. Peca, 12 S.W.3d 31
(Tex. 2000). Osterberg, however, dealt with the issue of unreported campaign expenditures, and
affords only limited guidance with respect to the issue of anonymous advertising. The only
advertisement at issue, a television commercial opposing Judge Peca’s re-election, included the line,
“Ad paid for by Bob Osterberg,” see id. at 36, and the charge against the Osterbergs was failure to
report the direct expenditure for the ad, pursuant to section 253.13 1 ofthe Election Code, rather than
a violation of section 255.001.
It is of note that, in Osterberg, the Supreme Court narrowly construes the definition of
campaign expenditures, holding that “a ‘direct campaign expenditure’ by an individual in a candidate
election includes only those expenditures that ‘expressly advocate’ the election or defeat of an
identified candidate.” Id. at 5 1. Certainly the court’s observation that “we should, if possible,
interpret statutes in a manner to avoid constitutional infirmities,” see id., suggests that it might be
disposed to narrow a statute such as section 255.001 to avoid the McZntyre problem. But to forecast
The Honorable Debra Danburg - Page 6 (JC-0243)
how the court might deal with section 255.001 solely on the basis of Osterbergwould be an exercise
in mere speculation.
As we have noted, no Fifth Circuit case on section 255.001 post-datesMcZntyre. Moreover,
the status of KWE is now less than clear. It might have been supposed that, since the Court in
McIntyre explicitly “discusses only written communications,” see Mclntyre, 514 U.S. at 338 n.3,
then KWE, which concerned radio and television broadcast advertising, was unaffected. The
Oregon Attorney General noted last year that “until the Supreme Court revisits this issue, only two
absolutely clear conclusions exist. First, a statute prohibiting an individual from distributing issue-
related leaflets violates the First Amendment. Second, no case yet holds that prohibiting anonymous
broadcasts violates the First Amendment.” Op. Or. Att’y Gen. No. 8266 (Mar. 10,1999), 1999 WL
133 100, at *6. The second of these “absolutely clear conclusions,” however, is no longer the case.
In February ofthis year, the United States District Court, in YesforLz$ PACv. Webster, 84 F. Supp.
2d 150 (D. Me. 2000). declared a Maine election statute which required apolitical action committee
to identify itself as the source of a broadcast political message unconstitutional on the basis of
Mclntyre. See Yes for Life PAC, 84 F. Supp. 2d at 15 1.
In Yesfir Life PAC, the court distinguished a number of cases standing “for the proposition
that radio and television broadcasters have circumscribed First Amendment rights and that the State
has greater authority to regulate them than it does the print media. All of these cases, however,
involve the federal government, specifically the Federal Communications Commission, and its
regulatory authority. [The court] see[s] nothing in those cases, however, to suggest that any of
that authority carries over to state legislatures and gives them enhanced authority to intrude upon
First Amendment interests of broadcasters or advertisement sponsors.” Id. at 153 n.6. A court
persuaded, like the Yes for Life PAC court, that Mclntyre applied to broadcasting might well hold
that KWE had been overturned by operation of law?
We note that the constitutionality of section 255.001(a) is now before the Court of Appeals
for the Fifth District of Texas in two related cases, State v. Doe, No. 5-99-01091-CR, and State v.
AntoneZli, No. 5-99-01907-CR. The cases are now sub judice, and their resolution may provide
further guidance on this issue.
In the present uncertainty concerning the meaning and limits of the McZntyre case, our
conclusions with regard to your question are necessarily limited. In our view, it is clear that section
255.001(a) of the Texas Election Code cannot constitutionally be enforced against a private
individual who creates and/or distributes anonymous printed political material from his or her own
resources advocating a position on a particular issue, rather than the choice of a particular candidate,
in an election. The statute may be constitutional in other contexts; and given that we do not possess
a narrowing construction of the statute by the Texas Supreme Court or Court of Criminal Appeals,
‘It is probablyworthyof note that the Yesfir LifePAC case grew out of a con!mversyoverissueadvertising.
See Yesfir LifePACv. Websfer,74 F. Supp.2d 37,38 (D.Me. 1999)(concludingthat “underUnitedStatesSupreme
Courtprecedent,the requireddisclosureof the PAC’sidentityin politicalmessagesconcerninga noncandidateballot
measureviolatesthe.FirstAmendment.“)
The Honorable Debra Danburg - Page 7 (X-0243)
or an interpretation of the limits of McIntyre Y. Ohio Elections Commission by either the United
States Court of Appeals for the Fifth Circuit or ultimately the United States Supreme Court, we must
presume such constitutionality in those respects. See TEX. GOV’T CODE ANN. 5 3 11.02 l(1) (Vernon
1998) (it is presumed that legislature intended statute to comply with state and federal constitutions);
Osterberg Y. Peca, 12 S.W.3d at 51.
SUMMARY
It is clear that section 255.001(a) of the Texas Election Code
cannot constitutionally be enforced against a private individual who
creates and/or distributes anonymous printed material from his own
resources advocating a position on a particular issue, rather than the
choice of a particular candidate, in an election. The statute may be
constitutional in other contexts; and given that we do not possess a
narrowing construction of the statute by the Texas Supreme Court or
Court of Criminal Appeals, or an interpretation of the limits of
McZntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), by
either the United States Court of Appeals for the Fifth Circuit or
ultimately the United States Supreme Court, we must presume such
constitutionality in those respects.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
James E. Tourtelott
Assistant Attorney General - Opinion Committee