PD-0310-23 08/23/2023
1. “The court of appeals disregarded the plain language of Election Code § 255.004(b) (the ‘True Source of Communication’ statute) and misconstrued it to unlawfully require identification of the source of a campaign communication. On its face, the statute does not require identification of the source; it only prohibits misidentification of it.”
2. “The court of appeals erred at every step in analyzing whether Election Code § 255.004(b) was narrowly drafted, resulting in the court of appeals erroneously holding the statute unconstitutional.”
Stafford was charged with intending to injure several candidates by knowingly representing in a campaign communication that it emanated from a source other than its true source by sending texts appearing to originate from a Republican or conservative campaign. Tex. Elec. Code § 255.004(b). The trial court denied his pretrial habeas petition challenging the constitutionality of § 255.004(b) under the First Amendment.
Stafford appealed, claiming, among other things, that the statute isn’t narrowly tailored to serve a compelling interest. The court of appeals agreed. The court first identified § 255.004(b) as a content-based regulation on political speech. It then addressed whether it survives strict scrutiny. It concluded that the State has an interest in fair and honest elections and preventing election fraud by ensuring that political advertising is attributed to its originating and actual source.
However, it held that § 255.004(b) is not narrowly tailored. It isn’t limited to false communications; the “representation” element captures all communication not derived from a “true source.” Thus, it includes (1) anonymous speech, (2) true speech, and (3) consented-to speech made on behalf of another. On anonymous speech, the court noted that the Federalist Papers, published under a pseudonym, would fall under § 255.004(b). And on true speech, a person who accurately identifies a candidate as belonging to a party on social media without identifying the true source (like party-affiliation or voting records) would be subject to prosecution. Regarding the last category, a campaign volunteer who sends out texts from an anonymized number could be charged because the volunteer’s number (as the true source) was not displayed.
What “true source” means is also problematic. The court questioned whether it means the “original” source. Requiring ad hoc factual development to identify the “true source” element does not mitigate the harm from a charge or the chilling effect. And the mens rea elements do not guard against these problems. The court also determined that preventing false statements and misrepresentations is not guaranteed through identifying the source of information.
Addressing less-restrictive means, the court observed that Tex. Elec. Code § 255.005 covers misrepresentations. Therefore, it questioned the necessity of § 255.004(b) to further the State’s interest. Finally, it concluded that the State failed to establish that counter-speech is an inadequate remedy.
The State asserts that the lower court misconstrued the statute. It relied on the faulty premise that the “true source” must be identified when it only prohibits identifying a false one. In its view, the statute requires that a party: (1) knowingly lie about the source of a campaign communication within the communication and (2) intend to influence an election or harm a candidate by lying about that source.
Next, anonymous speech cannot logically be “a source other than its true source;” the court failed to address how no source can become “a source.” Further, the statute does not cover the hypothetical scenarios about true speech and consented-to speech.
The State also challenges the court’s “narrowly tailored” analysis. The State’s interest was misidentified. The statute targets misrepresentations that harm the democratic election process. [Not sure how this is different.] Also, § 255.005 applies to a person’s (or their agent’s) own misrepresentation, while § 255.004(b) is directed at the source of the communication. And the court’s “counter speech” remedy would not undo the damage from fraudulent misrepresentations.
Further, the lower court conflated [traditional] facial unconstitutionality with overbreadth. Traditional scrutiny analysis asks about the means used to address an interest. Overbreadth analysis is a question of what a statute prohibits in practice; a statute that illegally prohibits a substantial amount of speech compared to its legitimate sweep is overbroad. Instead of asking whether the statute used the least restrictive means, the court of appeals focused on the overly broad nature of the three types of protected speech covered by the statute.
