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Texas Court of Criminal Appeals Criminal Law No. 254-02, 5/14/2003. Click here for the full text of this decision FACTS: During a campaign for Dallas municipal offices, the appellant created and circulated a political flyer that described an incumbent candidate for the Dallas City Council as “Pinocchio.” The flyer was published anonymously and distributed by a publishing company through a bulk mailing. After the election, the Dallas County District Attorney’s office received a complaint pointing out that the flier, contrary to the requirements of Texas Election Code �255.001, did not contain the name and address of the person contracting for its publication. Ultimately, the appellant was indicted for violating �255.001. HOLDING: Affirmed. Although the language of �255.001 speaks in terms of “contracts or other agreements,” the substance of the statute, by requiring the author of an advertisement to identify himself, regulates political advertising and, therefore, the content of core political speech. Statutes that regulate the mechanics of the electoral process are subject to a lower level of scrutiny than statutes that regulate constitutionally protected speech because they regulate only the election process, not the content of political speech. It is the substance of the statement being published that determines whether the statute applies, and it is the content of the statement that must be augmented with the name and address of the speaker. Because it burdens core political speech, �255.001 is subject to exacting scrutiny and can be upheld only if it is narrowly tailored to serve an overriding state interest. Further, the state must do more than simply assert that it has an interest; it must also demonstrate that there are actual problems that arise when persons enter into agreements to print, publish or broadcast political advertising without identifying themselves. United States v. National Treasury Employees Union, 513 U.S. 454 (1995). The state has identified three interests by which it seeks to justify the requirements imposed by �255.001: 1. deterring and punishing political corruption; 2. notifying the public of any allegiance a particular candidate might have toward the publisher of the communication; and 3. providing a method of detecting those expenditures that appear to be from an individual, but really come from political action committees or corporations. In McIntyre v. Ohio Elections Commissions,514 U.S. 334 (1995), the U.S. 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. 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. The court also held that Ohio’s prohibition against anonymous political statements was not its principal weapon against fraud, but was merely a deterrent and aid to enforcement. The ancillary benefits to the state did not justify the broad reach of the statute. Here, the court of appeals was correct in holding that the Supreme Court’s analysis in McIntyreapplies with equal force to �255.001. Another interest urged by the state is notifying the public of a candidate’s possible allegiances or q uid pro quoagreements. While the court agrees that this is a compelling state interest, �255.001 does little to enhance protections already available under the Election Code. The state argues that �255.001 provides a method of detecting expenditures that are disguised and/or unreported or that appear to be made by individuals when, in fact, they are made by political committees or corporations. Again, there are alternative, more effective ways of monitoring this issue. Political committees are required to report their expenditures. The state urges this court to hold that �255.001 is more narrowly tailored than the statute in McIntyrebecause it regulates only agreements between two or more people. The state claims that this narrowing makes the holding of McIntyreinapplicable. While the requirements of �255.001 arguably may be avoided by self-publication of a political advertisement, requiring such avoidance severely limits the opportunity to engage meaningfully in the anonymous and constitutionally protected dissemination of political ideas to a numerically insignificant portion of the electorate. OPINION: Johnson, J.; Meyers, Price, Keasler, Hervey and Cochran, JJ., join. Womack, J., dissents. CONCURRENCE: Keller, P.J. “Like Judge Holcomb (and Chief Justice Rehnquist, Justice Scalia, and Justice Thomas), I disagree with the Supreme Court’s analysis in McIntyre. And while McIntyrewould 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 McIntyredoes not compel the conclusion that Gov’t. Code Section 255.001 violates the Constitution.” DISSENT: Holcomb, J. “The majority fails to recognize that the political corruption the statute was intended to deter does not necessarily involve actionable 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 (Scalia, J., dissenting). While protecting such compelling state interests, the statute is narrowly tailored not 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.”

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