State v. Doe

61 S.W.3d 99, 2001 Tex. App. LEXIS 6897, 2001 WL 1223732

• Court: Court of Appeals of Texas
• Decided: October 16, 2001
• Docket: 05-99-01091-CR
• Status: Published

Opinions

OPINION

MORRIS, Justice.

At issue in this case is the constitutionality of a statute regulating core political speech in the electoral process. The State indicted “John Doe” for violating section 255.001 of the Texas Election Code by circulating an anonymous flier opposing a particular candidate for public office. Doe challenged the indictment arguing the statute infringed upon his right to freedom of speech. We conclude section 255.001 on its face violates the First Amendment to the United States Constitution. Therefore, we affirm the trial court’s judgment dismissing the charges against John Doe.

This dispute began with the creation and circulation of a political advertisement known as the “Pinocchio Flier.” The flier was published anonymously. It described an incumbent candidate for the Dallas City Council as a “puppet who can’t tell the truth.” After the election, a complaint was filed with the Dallas County District Attorney’s office pointing out that the flier did not contain the name and address of the person contracting for its publication. The absence of this information violated Texas Election Code section 255.001 and constituted a Class A misdemeanor.

The Pinocchio Flier was distributed by a company called the Order Desk. An investigator for the district attorney’s office contacted the president of the Order Desk to obtain records identifying the person who placed the distribution order. The Order Desk refused to comply with the request, and a subpoena duces tecum was issued. What followed was a lengthy battle waged in several courts over identification of the person responsible for the flier and a determination of the proper court to address the constitutional issues presented.¹ Ultimately, the creator of the Pinocchio Flier, John Doe, was indicted for violating section 255.001.²

In response to the indictment, Doe filed a motion to set it aside. Doe contended section 255.001 was unconstitutional because it sought to regulate core political speech and was not narrowly tailored to serve an overriding state interest. Because Doe believed section 255.001 was void, he argued the indictment failed to allege an offense. The State responded that it had a substantial interest in notifying the public of the source of campaign literature and in preventing actual or perceived corruption in the political process. According to the State, section 255.001 directly served these interests and was, therefore, constitutional. The trial court ruled in favor of Doe, holding that section 255.001 violated the First Amendment to the United States Constitution.³ The trial court set aside the indictment, and the State brought this appeal. The appeal focuses on the conflict between the State’s interest in policing its elections and an individual’s right to engage in anonymous political speech.

II.

To assist in the regulation of campaign contributions and expenditures, the Texas Legislature adopted laws requiring disclosures to be made in political advertisements. Under section 255.001 of the Texas Election Code, any person who enters into a contract or other agreement for the printing, publication, or broadcasting of a political advertisement must identify himself or the person he represents within the advertisement.⁴ Tex. Elec.Code Ann. § 255.001 (Vernon Supp.2001). Political advertising includes any communication supporting or opposing a candidate for public office or office of a political party. Id. § 251.001(16). Political advertising also includes communications supporting or opposing a political party, a public officer, or a measure. Id. The disclosure requirement applies to all political advertisements 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.

The contracting parties in this case were Doe and the Order Desk. Doe entered into an agreement with the Order Desk for the distribution of his anonymous Pinocchio Flier through a bulk mailing. It was through this bulk mailing that Doe’s flier was disseminated to the public. Accordingly, the agreement between Doe and the Order Desk was one to publish a political advertisement. See WebsteR’s ThiRD New International Dictionary 1837 (1993) (“publish” is to declare publicly or make generally known, disclose, or circulate); The American Heritage Dictionary 1057 (1st ed.1969) (“publish” is to prepare and issue printed material for public distribution). The State claimed Doe violated section 255.001 by failing to identify himself on the flier.

Although the language of section 255.001 speaks in terms of “contracts or other agreements,” the substance of the statute regulates the content of political advertising and, therefore, the content of core political speech. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346-47, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (speech designed to influence voters in an election is core political speech). It is the content of the statement being published that determines whether the statute applies. Furthermore, when the statute applies, it is the content of the statement that must be augmented with a name and address.

Freedom of speech includes the right to engage in the dissemination of ideas without being publicly identified. See Talley v. Cal., 362 U.S. 60, 65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960). To comply with section 255.001, however, an author must add personal information to the text of his statement. A law mandating that additions be made to a statement curtails the author’s freedom to omit any information he chooses. The United States Supreme Court has stated “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” McIntyre, 514 U.S. at 342, 115 S.Ct. 1511.

The requirements of section 255.001 arguably may be avoided by a person publishing a political advertisement alone, without the involvement of another, like the Order Desk. A person’s decision to do so, however, severely limits his' or her opportunity to engage meaningfully in the anonymous dissemination of political ideas to any significant portion of the electorate. Moreover, should a person choose to distribute his political advertisement personally to avoid the proscription of section 255.001, 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 the publication of political advertising without revealing their identity.

Limiting anonymity to individuals acting alone also may prevent groups who espouse unpopular viewpoints from publishing their message. As the United States Supreme Court has noted, “[p]erse-cuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” Talley, 362 U.S. at 64, 80 S.Ct. 536. Anonymity allows individuals to discuss matters of public importance without fear of reprisal. Id. at 65, 80 S.Ct. 536; see also Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 198-99, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) (requiring petition circulators to wear identifying badges forces them to reveal their identity at the same time they deliver their political message thus exposing them to “heat of the moment” harassment). Regardless of the motivation for remaining anonymous, the ability of an author or other sponsoring party to withhold his identity while engaging in political speech is a right that may be burdened only in the face of the most compelling state interests. See McIntyre, 514 U.S. at 341-42, 115 S.Ct. 1511. As a burden on core political speech, section 255.001 is subject to “exacting scrutiny” and can be upheld only if it is “narrowly tailored to serve an overriding state interest.” See id. at 347, 115 S.Ct. 1511.

In this case, the State identifies three interests to justify the requirements imposed by section 255.001:(1) deterring and punishing political corruption; (2) notifying the public of any allegiance a particular candidate might feel toward the publisher of the communication; and (3) providing a method of detecting those expenditures which appear to be from individuals, but in reality come from political action committees or corporations. These interests all concern the regulation of elections and election campaigns. It has been consistently recognized that there must be substantial regulation of elections if they are to be fair, honest, and orderly. See, e.g., 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). Specifically, the government’s interest in preventing and detecting corruption in campaign finances may be of sufficient importance to outweigh possible infringement on constitutional rights. See Buckley v. Valeo, 424 U.S. 1, 66-67, 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 the analysis. We must also determine whether section 255.001 is drafted in a sufficiently narrow fashion so as to burden the right to freedom of speech as little as necessary to achieve the State’s goals.

A similar statute to the one at issue was analyzed by the United States Supreme Court in McIntyre v. Ohio Elections Commission. In McIntyre, 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, 115 S.Ct. 1511. Ohio sought to justify the statute by arguing it provided the electorate with relevant information and prevented the dissemination of fraudulent and libelous statements. Id. at 348, 115 S.Ct. 1511. In concluding the statute was unconstitutional, the Supreme Court held that providing voters with additional relevant information did not justify a state requirement that a writer make statements or disclosures he would otherwise omit. Id. The court stated that readers could evaluate the anonymity along with the message “as long as they [were] permitted, as they must be, to read that message.” Id. at 348 n. 11, 115 S.Ct. 1511. The court further held that Ohio’s prohibition against anonymous political statements was not its principal weapon against fraud, but 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.

We conclude the Supreme Court’s analysis in McIntyre applies with equal force to section 255.001.⁵ Although the State contends section 255.001 serves its compelling interest to deter and punish political corruption, it does not specify what types of political corruption section 255.001 was intended to address. Nothing in the section limits its application to wrongful actions such as the publication of statements that are false, misleading, fraudulent, or libelous. All political advertisements, regardless of their accuracy or veracity, are potentially subject to the section’s prohibition on anonymity. Texas law already deters false and fraudulent statements through recognized tort claims. Section 255.001 is nothing more than a deterrent and an aid to enforcement of these laws. As such, it does not justify a sweeping prohibition on anonymous political speech. See id. at 350-51, 115 S.Ct. 1511; see also Shrink Mo. Gov’t PAC v. Maupin, 892 F.Supp. 1246, 1256 (E.D.Mo.), aff'd, 71 F.3d 1422 (8th Cir.1995).

Moreover, to the extent section 255.001 is directed at abuse or corruption in campaign financing, the State’s interests in that area are addressed by the Texas Election Code’s numerous restrictions on contributions and expenditures together with its extensive campaign finance reporting requirements. See Tex. Elec.Code Ann. chs. 253-54 (Vernon Supp.2001). Under these statutes, candidates, office holders, and political committees must report the full name and address of any person making contributions that, in the aggregate, exceed fifty dollars in value. Id. § 254.031. Political expenditures that exceed fifty dollars must also be similarly reported. Id. A “contribution” includes any direct or indirect transfer of money, goods, services, or any other thing of value. Id. § 251.001(2). A “campaign expenditure” means an expenditure made by any person in connection with a campaign for an elective office or a measure. Id. § 251.001(7). Campaign finance laws, therefore, already require accountability to inhibit campaign finance abuse or corruption.

Although the identification of parties responsible for a political advertisement within the advertisement itself may help ensure that contributions and expenditures are accurately reported, this ancillary enforcement benefit, once again, cannot justify section 255.001’s sweeping infringement on protected anonymous speech. The efficacy of the identification requirement alone to detect campaign finance abuses is questionable. Any person who wishes to evade the reporting requirements could simply use a fictitious name and address. The identification requirement itself, therefore, affects only citizens who reveal their true identities. And to the extent the State has a compelling interest in ensuring political advertising is attributed accurately to its originating source rather than a false source, the Texas Election Code 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.” Id. § 255.004. The election code further 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 or expenditure. Id. § 253.001.

The second compelling interest urged by the State is notifying the public of a candidate’s possible allegiances. We recognize that voters may be concerned about a candidate’s sources of support. To the extent a candidate acknowledges and accepts support, however, this information is readily available through the political finance reports referred to above. The reports are preserved for two years and are open to public inspection. See id. § 254.040-0401. The reports directly inform the public of a candidate’s possible allegiances while employing a disclosure requirement less burdensome on individual rights. See Buckley, 424 U.S. at 66-68, 96 S.Ct. 612; see also McIntyre, 514 U.S. at 355, 115 S.Ct. 1511.

Finally, the State argues that section 255.001 provides a method of detecting expenditures that appear to be made by individuals when, in fact, they are made by political committees or corporations. But political committees are required to report their expenditures. See Tex. Elec.Code Ann. §§ 254.121-163. And corporations are prohibited from making contributions to, or expenditures on behalf of, a specific candidate. Id. §§ 253.091-104. Thus, the identification requirement is not the principal weapon against misleading activities; the statutory reporting requirements and prohibitions on expenditures are. The identification requirement, once again, is simply an aid to enforcement of other statutes.

If the State’s interest is in informing the public about the source of a political advertisement at the time the message is being conveyed, this is merely an attempt to provide the message’s audience with additional relevant information that the author has chosen to omit. Although the identity of the author is helpful in evaluating the message, the “best test of the truth” is the power of the thought itself. McIntyre, 514 U.S. at 348 n. 11, 115 S.Ct. 1511.

Based on the foregoing, we conclude section 255.001 is not narrowly tailored to serve an overriding State interest. In fact, the statute’s broad proscription on anonymous political speech reaches well beyond the conduct targeted by the State. To the extent section 255.001 has an impact on the targeted conduct, it is only as a deterrent and aid to enforcement of other statutes. A state cannot significantly infringe upon an individual’s freedom of speech simply to obtain the ancillary benefit of detecting violations of other laws. Therefore, we hold that section 255.001 is unconstitutional on its face and cannot be upheld.

In an attempt to prevent the statute from being struck in its entirety, the State urges us to give it a narrowing construction or to sever any offending portions of the statute to the extent necessary to save it. In making this request, the State assumes that section 255.001 would pass constitutional muster if it were crafted to allow individuals to contract for the publication of anonymous political advertising about a ballot issue or measure. The State’s argument is based on a limited reading of the holding in McIntyre.

The Supreme Court noted in McIntyre that a state’s interest in combating political corruption is greater in candidate elections than in votes on public issues. Id. at 352 n. 15, 115 S.Ct. 1511. The court did not hold, however, that this greater interest would be sufficient to justify a disclosure requirement directed only at political advertisements expressly supporting or opposing a candidate. See Maupin, 892 F.Supp. at 1255. But see Vt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 386 (2d Cir.2000); Ky. Right to Life, Inc. v. Terry, 108 F.3d 637, 647 (6th Cir.1997). The court declared the entire Ohio statute at issue unconstitutional, including the portions that required identifying disclosures to be made on candidate centered publications. The court’s analysis is equally applicable to all political speech, regardless of its focus. Indeed, while the state’s interests may be heightened in a candidate election, so are a speaker’s. The constitutional guarantee of free speech “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” McIntyre, 514 U.S. at 347, 115 S.Ct. 1511. The need to promote full and fair discussion is critical to the election of public officials where, as contrasted with votes on public measures, all the pertinent information may not be freely available.

No construction or reconstruction of section 255.001 could bring it within the scope of constitutional validity. The section is unconstitutional in its entirety under the First Amendment to the United States Constitution.

We affirm the trial court’s judgment dismissing the indictment against John Doe.

1 . The procedural history of this dispute is more fully set forth in this Court’s opinion Dallas County District Attorney v. Doe, 969 S.W.2d 537 (Tex.App.—Dallas 1998, no pet.).

2 . The parties on appeal use the defendant’s pseudonym, John Doe.

3 .The trial court held, without limitation, that section 255.001 is unconstitutional. Such a ruling is appropriate only in a case where the issue is whether the statute is facially unconstitutional. In contrast, under an "unconstitutional as applied” challenge, the moving party generally concedes the constitutionality of the statute, but argues that it is being unconstitutionally applied to his particular circumstances. See Tex. Boll Weevil Eradication Found., Inc. v. Lewellen, 952 S.W.2d 454, 461 n. 5 (Tex.1997). Doe's motion asked that section 255.001 be held unconstitutional in its entirety. Furthermore, Doe’s motion did not focus on the facts of his case, but rather addressed why the statute, by its terms, operated unconstitutionally. Doe's challenge, therefore, was to the facial constitutionality of section 255.001. See id.

4 . Section 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 individual who personally entered into the agreement with the printer or publisher or the person that individual represents.

5 . Indeed, in a dissent to McIntyre, Justice Scalia, joined by the chief justice, noted that the majority opinion affected similar laws in twenty-four other states including Texas Election Code section 255.001.