John DOE, Appellant, v. The STATE of Texas.
No. 254-02.
Court of Criminal Appeals of Texas, En Banc.
May 14, 2003.
532, 533, 534, 535, 536, 537, 538, 539, 540
K. Jеfferson Bray, Asst. DA, Dallas, Matthew Paul, State‘s Atty., Austin, for State.
OPINION
JOHNSON, J., delivered the opinion of the Court in which MEYERS, PRICE, KEASLER, HERVEY, and COCHRAN, J.J., joined.
We granted the state‘s Petition for Discretionary Review in this case to determine whether
Appellant is correct. We hold that
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, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992); Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (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, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995).3 The Supreme Court alsо 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, 115 S.Ct. 1511.
The Texas Legislature has adopted laws requiring disclosure to be made in political advertisements. Under
Although the language of
The state argues that
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, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960). To comply with
Because it burdens core political speech,
Here, the state has identified three interests by which it seeks to justify the requirements imposed by
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, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997); Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). The government‘s interest in prevеnting 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, 96 S.Ct. 612, 46 L.Ed.2d 659 (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
In McIntyre v. Ohio Elections Commission, the Supreme Court addressed an Ohio law mandating that аny 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, 115 S.Ct. 1511. 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 рrohibition against anonymous political statements was not its principal weapon against fraud, but was merely a deterrent and aid to enforcement. Id. at 350-51, 115 S.Ct. 1511. The ancillary benefits to the state did not justify the broad reach of the statute. Id. at 350, 115 S.Ct. 1511.
Here, the court of appeals was correct in holding that the Supreme Court‘s analysis in McIntyre applies with equal force to
To the extent that
Finally, the state‘s interest in ensuring that political advertising is attributed to its originating and actual source is already considered.
The second interest urged by the state is notifying the public of a candidate‘s possible allegiances or quid pro quо agreements. While we agree that this is a compelling state interest,
Finally, the state argues that
Lastly, the state urges this Court to hold that
Moreovеr, 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, 80 S.Ct. 536.
We conclude that
KELLER, P.J., filed a concurring opinion.
HOLCOMB, J., filed a dissenting opinion.
WOMACK, J., dissented.
KELLER, P.J., filed a concurring opinion.
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
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.
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.
HOLCOMB, J., filed a dissenting opinion.
If the issue in this case were whether
However, the issue in this case is whether the statute is impermissibly overbroad, faciаlly unconstitutional, and thus void. Although the issue in this case requires a more abstract analysis, I think the result, finding the statute constitutional, should be the same.
While conceding the State‘s interests in this case are compelling, the majority concludes that the statute is unconstitutional on its face because it is “not sufficiently narrowly tailored to serve an overriding state interest without placing an undue burden on constitutionally protected political free speeсh.” Because I disagree, I must respectfully dissent.
First, because the Texas statute regulates the electoral process and interdependent, commercial activity, the case should be controlled not by the holding in McIntyre, but by the United States Supreme Court‘s holding in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)(per curiam)(upholding certain provisions of the Federal Election Act requiring private individuals to report certain expenditures in a candidate election), and we should find that the statute is a constitutional regulation оf the electoral process.
Second, the Texas statute materially differs from the Ohio statute at issue in McIntyre in ways that make it sufficiently tailored to serve the interests the State specifically advances. The Ohio statute addressed in McIntyre prohibited all anonymous political advertisement. The Texas statute prohibits anonymous political advertisement only where it was printed, published or broadcast pursuant to a contract or other agreement.
The majority fails to recognize that the political corruption the statute was intended to deter does not necessarily involve actiоnable claims and that therefore, the statute is not merely an aid to law enforcement. The Texas statute protects the integrity of the election process by promoting truthfulness in campaign advertising; by fostering fairness and civility in election campaigns; and by increasing the fund of information available to the electorate. See generally McIntyre, 514 U.S. at 371-85, 115 S.Ct. 1511 (Scalia, J., dissenting). While protecting such compelling state interests, the statute is narrowly tailored nоt to burden or inhibit individuals’ independent communications, which embody the essence of the First Amendment, such as the fliers that McIntyre independently paid for out of her own meager resources and distributed. Id. at 347, 115 S.Ct. 1511.
In recognizing that it is an independent offense to agree to publish a political advertisement that purports to emanate from a source other than its true source, the majority fails to address the state‘s true concern, not regarding false identification of the source, but regarding the intended erroneous assumptions that may be made regarding the source when the source is not identified at all. Such misleading could be accomplished without including actionable misrepresentations within the advertisement.
Turning to address the burden the Texas statute imposes on political speech, the majority seems to argue that the Texas statute will inhibit the McIntyres of the world from disseminating their fliers.
Second, tailoring the statute to prohibit only political advertisements printed, published, or broadcast pursuant to contracts or agreements between two or more people regulates those with the most resources, those most likely to be subject to the campaign reporting regulations, leaving those with little resources to the methods they would use to disseminate their political ideas were the statute nоt in place.
Additionally, the majority fails to address the effect of the statute allowing an individual to remain anonymous by creating an organization as the “person” represented or by using an intermediary and disclosing only the information of the agent entering into the contract.1
It is conceivable that the phrase “contract or other agreement to print, publish, or broadcast” in the Texas statute could be construed to regulate political advertisements copied by individuals at copy centers pursuant to an agreement that the individual may use the copier to print the advertisements for a price. See
Because I would find the Texas statute sufficiently tailored to serve overriding state interests and thus constitutional, I respectfully dissent.
Notes
(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 reрresents; 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.
(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.
McIntyre v. Ohio Elections Comm‘n, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995).(a)(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 individual who personally entered into the agreement with the printer or publisher or the person that individual represents.