Opinion
No. 05-22-00396-CR
05-01-2023
EX PARTE John Morgan STAFFORD
Lisa Smith Braxton, Collin County District Attorney's Office, McKinney, Greg A. Willis, Collin County District Attorney, McKinney, for State of Texas. Allison Clayton, Attorney at Law, Lubbock, Kyle T. Therrian, Rosenthal, Kalabus & Therrian, McKinney, for Appellant.
Lisa Smith Braxton, Collin County District Attorney's Office, McKinney, Greg A. Willis, Collin County District Attorney, McKinney, for State of Texas.
Allison Clayton, Attorney at Law, Lubbock, Kyle T. Therrian, Rosenthal, Kalabus & Therrian, McKinney, for Appellant.
Before Justices Pedersen, III, Garcia, and Breedlove
OPINION
Opinion by Justice Garcia This case involves a pretrial habeas challenge to the facial validity of a statute criminalizing certain speech concerning "campaign communications." See TEX. ELEC. CODE § 255.004(b). The trial court concluded that the statute passes constitutional muster and denied habeas relief.
Stafford argues the trial court's determination is erroneous and the statute abridges the First Amendment right to free speech because: (i) it is not narrowly tailored to serve compelling state interests, (ii) it is unconstitutionally vague, and (iii) it places an undue burden on the right to anonymous speech.
We conclude the statute does not survive strict scrutiny and is unconstitutional on its face because the restrictions on protected speech are not narrowly tailored to achieve the compelling interests advanced by the State. The statutory restrictions are not narrowly tailored to remedy false statements, nor are they limited to false statements; the restrictions also encompass anonymous speech, speech that is true, and speech made consensually on behalf of another. And the determination of what constitutes a "true source" of that speech (and hence a statutory violation) is left to prosecutorial discretion. Although the State's interest in promoting fair and honest elections by preventing false and misleading political speech is compelling, the expansive reach of the statute beyond that purpose demonstrates the statute is not narrowly tailored and is therefore constitutionally infirm.
We reverse the trial court's order denying Stafford's application for writ of habeas corpus and remand the case to the trial court with instructions to dismiss the prosecution of charges against Stafford for alleged violation of TEX. ELEC. CODE § 255.004(b). See Long v. State , 931 S.W.2d 285, 297 (Tex. Crim. App. 1996) (remanding case to trial court to enter order dismissing prosecution).
I. Background
Stafford was indicted under TEX. ELEC. CODE § 255.004(b). The indictment alleged that Stafford:
The indictment is not included in the record. A copy is attached to Stafford's brief and an excerpt is included in Stafford's habeas application. The State acknowledges the accuracy of the excerpt.
on or about the 15th day of April, 2021 through the 16th day of April, 2021 ... did then and there, with intent to injure a candidate or inuence [sic] the result of an election, namely candidates Lily Bao, and Anthony Ricciardelli, and Justin Adcock, and Howard Smith, and Lynn Walling, and Joyce Loughrayi, the defendant knowingly represents in a campaign communication that the communication emanates from a source other than its true source, to wit, sending text messages with the appearance of coming
from a Republican or conservative campaign.
Stafford challenged the constitutionality of the statute in an application for a pretrial writ of habeas corpus under TEX. CODE CRIM. PROC. ANN. art. 11.09. The trial court conducted a hearing and by subsequent order, denied Stafford's habeas application.
II. Analysis
A. Constitutional Habeas Challenge
A defendant may file a pretrial application for a writ of habeas corpus to raise a facial challenge to the constitutionality of a statute that defines the offense charged. Ex parte Thompson , 442 S.W.3d 325, 333 (Tex. Crim. App. 2014). A facial challenge attacks the statute itself rather than the statute's application to the defendant. Peraza v. State , 467 S.W.3d 508, 514 (Tex. Crim. App. 2015).
Whether a statute is facially unconstitutional is a question of law subject to de novo review. Salinas v. State , 464 S.W.3d 363, 366 (Tex. Crim. App. 2015) ; Ex parte Paxton , 493 S.W.3d 292, 304 (Tex. App.—Dallas 2016, pet. ref'd). We make every reasonable presumption in favor of the statute's constitutionality unless the contrary is clearly shown. Peraza , 467 S.W.3d at 514.
B. Constitutional Standard of Review
The First Amendment instructs "Congress shall make no law ... abridging the freedom of speech ...." See U.S. CONST . amend. I. The Amendment is applicable to the states through the Fourteenth Amendment due process clause. Bigelow v. Virginia , 421 U.S. 809, 811, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975) (citing Schneider v. State , 308 U.S. 147, 160, 60 S.Ct. 146, 84 L.Ed. 155 (1939) ).
We begin by considering whether the targeted speech is protected. The statute at issue here targets political speech.
Political expression is crucial to self-government and is afforded broad latitude to safeguard "the ability of the citizenry to make informed choices among candidates for office" and "assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States , 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Political speech is "the lifeblood of a self-governing people." McCutcheon v. FEC , 572 U.S. 185, 228, 134 S.Ct. 1434, 188 L.Ed.2d 468 (2014) (plurality op.) (Thomas, J., concurring). Consequently, regulation of political speech or expression has always been at the core of First Amendment protections. McIntyre v. Ohio Election Comm'n , 514 U.S. 334, 346, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) ; Morse v. Frederick , 551 U.S. 393, 403, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007). This is particularly true when the speech relates to campaigns for political office. See Monitor Patriot Co. v. Roy , 401 U.S. 265, 272, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971) (speech concerning campaigns for office receive the First Amendment's "fullest and most urgent application."). Thus, there is no dispute that First Amendment protections are implicated here.
Having determined that the speech at issue is protected speech, we next determine the applicable level of constitutional scrutiny. In the First Amendment context, the level of scrutiny depends on the "content neutrality" of the statute. See Reed v. Town of Gilbert , 576 U.S. 155, 166, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). Content-based regulations are subject to the highest level of scrutiny because the "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." See United States v. Stevens , 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quoting Ashcroft v. ACLU , 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) ). A restriction is content-based if it (1) "applies to particular speech because of the topic discussed or the idea or message expressed," or (2) even if "facially content-neutral," cannot be "justified without reference to the context of the regulated speech," or was "adopted by the government because of disagreement with the message [the speech] conveyed." City of Austin v. Reagan Nat'l Adver. of Austin, LLC , ––– U.S. ––––, 142 S. Ct. 1464, 1471, 212 L.Ed.2d 418 (2022) (citation omitted). If it is necessary to look at the content of the speech to decide if the speaker violated the law, the regulation is content based. Ex parte Thompson , 442 S.W.3d 325, 345 (Tex. Crim. App. 2014).
Typically, a person challenging a statute has the burden to establish its unconstitutionality. See Rodriguez v. State , 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). But when the government seeks to restrict and punish speech based on its content, the usual presumption of constitutionality is reversed. Ex parte Nyabwa , 366 S.W.3d 719, 724 (Tex. App.—Houston [14th Dist.] 2011, pet ref'd) (citing United States v. Playboy Ent. Grp., Inc. , 529 U.S. 803, 817, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) ). "Content-based regulations (those laws that distinguish favored from disfavored speech based on the ideas expressed) are presumptively invalid, and the government bears the burden to rebut that presumption." Ashcroft , 542 U.S. at 660, 124 S.Ct. 2783. This is because "content-based prohibitions enforced by severe criminal penalties, have the constant potential to be a repressive force in the lives and thoughts of a free people." Id.
The challenged statute is a content-based restriction on political speech. The statute provides:
A person commits an offense if, with intent to injure a candidate or influence the result of an election, the person knowingly represents in a campaign communication that the communication emanates from a source other than its true source.
TEX. ELEC. CODE § 255.004(b). A "campaign communication" is defined as "a written or oral communication relating to a campaign for nomination or election to public office or office of a political party or to a campaign on a measure." TEX. ELEC. CODE § 252.001(17). The statute does not define "true source."
We apply strict scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content, and such regulations may be upheld only if the regulation is justified by a compelling state interest and is narrowly tailored, using the least restrictive means to achieve the asserted interest. See Brown v. Ent. Merchants Ass'n , 564 U.S. 786, 799, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011) ; Barr v. Am. Ass'n of Political Consultants, Inc. , ––– U.S. ––––, 140 S.Ct. 2335, 2346, 207 L.Ed.2d 784 (2020) (content-based laws subject to strict scrutiny); Arizona Free Enter. Club's Freedom Club PAC v. Bennett , 564 U.S. 721, 734, 131 S.Ct. 2806, 180 L.Ed.2d 664 (2011) (laws that burden political speech subject to strict scrutiny); see also generally, Ex parte Nuncio , No. PD-0478-19, 662 S.W.3d 903, 919-21 (Tex. Crim. App. 2022) (reciting strict scrutiny standard for content-based regulations but noting that the issue raised was overbreadth, which differs from strict scrutiny). Because the statute is a content-based restriction on core political speech, we apply the strict scrutiny standard here.
Appellant generally argues that we apply the "exacting scrutiny" standard. The State argues that strict scrutiny applies but quotes case law describing such scrutiny as "exacting." Neither party distinguishes the two standards. The confusion is not entirely unfounded but merits some attention because exacting scrutiny and strict scrutiny are different standards of review.
The phrase "exacting scrutiny" appeared in dictum in United States v. Carolene Products , 304 U.S. 144, 152 n.4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), where the court observed that some constitutional prohibitions might "be subject to more exacting judicial scrutiny." Id. The phrase appeared again in Buckley v. Valeo , 424 U.S. 1, 74, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam), where the court stated that compelled disclosure requirements "must survive exacting scrutiny." Id.
The phrase has transformed through the years, with varying, and inconsistent applications. In election finance cases, it seemed analogous to strict scrutiny. See McCutcheon , 572 U.S. at 197, 134 S.Ct. 1434. The term has also been used interchangeably with strict scrutiny in the same opinion. See Williams-Yulee v. Florida Bar , 575 U.S. 433, 443, 135 S.Ct. 1656, 191 L.Ed.2d 570 (2015). Other cases have used the term "exacting scrutiny" without specifying whether it was a distinct standard of review or a synonym for one of the three traditionally recognized standards of First Amendment review. See United States. v. Alvarez , 567 U.S. 709, 724, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012) (plurality op.); McIntyre , 514 U.S. at 347, 115 S.Ct. 1511 (using term "exacting scrutiny" but applying traditional strict scrutiny standard). When applied as a distinct standard of review, "exacting scrutiny" has typically connoted a standard of constitutional review a level below, and less rigorous than strict scrutiny. See Washington Post v. McManus , 355 F. Supp. 3d 272, 289 n.14 (D. Md. 2019), aff'd , 944 F.3d 506 (4th Cir. 2019). But see Citizens United v. FEC , 558 U.S. 310, 366–67, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (applying exacting scrutiny to disclosure requirements by requiring a "substantial relation between the disclosure requirement and a sufficiently important government interest"). Consequently, courts have recognized that use of the phrase " ‘exacting scrutiny’ has not always been exacting in its own right, leading to considerable confusion." McManus , 355 F.Supp. 3d 272, 289 n.14.
In a recent decision involving a disclosure mandate, the court applied "exacting scrutiny" as a discrete tier of constitutional scrutiny. See Ams. for Prosperity v. Bonta , ––– U.S. ––––, 141 S.Ct. 2373, 2389, 210 L.Ed.2d 716 (2021). Nonetheless, the court could not agree on which categories of speech should be reviewed under this standard. See id. at 2381 (Alito, J., concurring in part), 2390 (Thomas, J., concurring in part).
Exacting scrutiny differs from strict scrutiny in that it does not require a "least restrictive means" analysis. See e.g., Ward v. Rock Against Racism , 491 U.S. 781, 798 n.6, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). But both standards typically require that the speech restricting regulation be narrowly tailored to achieve the government's interest. See Brown , 564 U.S. at 799, 131 S.Ct. 2729 (applying strict scrutiny); Bonta , 141 S.Ct. at 2383 (applying exacting scrutiny requiring (1) a substantial relation ... and a sufficiently important government interest and (2) narrow tailoring).
Significantly for our purposes, the Supreme Court has yet to direct that a standard less than strict scrutiny applies in First Amendment cases involving regulation of the content of political speech. See Buckley v. Am. Const. Law Found., Inc. , 525 U.S. 182, 207, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) (Thomas, J., concurring) (observing that strict scrutiny is applied to regulations burdening core political speech and noting that the severe/lesser burden framework has only been applied when a challenged law regulates the mechanics of the election process) (citing McIntyre , 514 U.S. at 345, 115 S.Ct. 1511 ). Likewise, the Texas Court of Criminal Appeals applies strict scrutiny to content-based speech regulations. See Nuncio , 662 S.W.3d at 919-21. Moreover, neither party argues that the lower court applied an incorrect standard, and application of the exacting scrutiny standard would not alter our conclusion that the statute is not narrowly tailored. Accordingly, we need not further parse these distinctions. See McCutcheon , 572 U.S. at 199, 134 S.Ct. 1434 (because statute fails even under less demanding test, the court "need not parse the differences between the two standards in this case.").
C. Do the Content-Based Restrictions Survive Strict Scrutiny?
Having concluded that the statute targets content-based protected speech, we apply the strict scrutiny standard to determine whether the statute is unconstitutionally restrictive. See Bennett , 564 U.S. at 734, 131 S.Ct. 2806.
1. Are the State's Interests Compelling?
The State argues that § 255.004(b) supports "fair, honest, and orderly elections by deterring fraud and diminishing corruption in elections." Specifically, it contends the statute "deters fraud by ensuring votes are cast free from misinformation, thus, protecting voters from confusion and undue influence."
Stafford does not, and reasonably could not, dispute that promoting honest discourse and preventing misinformation in the political arena are compelling state interests. But as the Supreme Court has observed "our constitutional tradition stands against the idea that we need Oceania's Ministry of Truth." Alvarez , 567 U.S. at 723, 132 S.Ct. 2537 (quoting G. Orwell, Nineteen Eighty Four 1949) (Centennial ed. 2003). To hold that "the interest in truthful discourse alone is sufficient to sustain a ban on speech" would give the government unprecedented censorial power. Id.
Despite the strong protection for political speech under the First Amendment, the Supreme Court has acknowledged that a state interest in preventing fraud "carries special weight during election campaigns when false statements, if credited, may have serious adverse consequences for the public at large." McIntyre , 514 U.S. at 349, 115 S.Ct. 1511. "A State indisputably has a compelling interest in preserving the integrity of its election process." Eu v. San Francisco Cnty. Democratic Cent. Comm. , 489 U.S. 214, 231–32, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) ; see also, Burson v. Freeman , 504 U.S. 191, 199, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (protecting elections conducted with integrity and reliability are "obviously" compelling interests); Doe v. State , 112 S.W.3d 532, 535 (Tex. Crim. App. 2003) (there must be substantial regulation of elections if they are to be fair, honest, and orderly). Nonetheless, when these preservation goals are achieved at the expense of public discourse, they become problematic. Therefore, "a State's claim that it is enhancing the ability of its citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism." Eu , 489 U.S. at 228, 109 S.Ct. 1013.
But we need not belabor this prong of the analysis. While we agree that fair and honest elections and preventing fraud on the electorate comprise compelling state interests, the narrow tailoring that must juxtapose those interests is absent here. We therefore turn to the "narrow tailoring" prong of the analysis.
2. Is the Statute Narrowly Tailored Using the Least Restrictive Means?
Having concluded that the state's interests are compelling, we consider whether the statute is narrowly tailored to achieve those interests. See Brown , 564 U.S. at 799, 131 S.Ct. 2729 ; Nuncio , 662 S.W.3d at 919-21. "To survive strict scrutiny ... the State must do more than assert a compelling state interest—it must demonstrate that its law is necessary to serve the asserted interest." Burson , 504 U.S. at 199, 112 S.Ct. 1846. "With respect to narrow tailoring, [courts] require the government to prove that no ‘less restrictive alternative’ would serve its purpose." Playboy , 529 U.S. at 813, 120 S.Ct. 1878 " ‘[I]t is the rare case’ in which a State demonstrates that a speech restriction is narrowly tailored to serve a compelling interest." Williams-Yulee , 575 U.S. at 444, 135 S.Ct. 1656 (quoting Burson , 504 U.S. at 211, 112 S.Ct. 1846 ).
It is well-established that "when free speech values are at stake, states must supply rationales that are ‘far stronger than mere speculation about serious harms.’ " McManus , 944 F.3d at 522 (quoting Bartnicki v. Vopper , 532 U.S. 514, 531, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001) ). Expressed differently, "[t]he State must specifically identify an ‘actual problem’ in need of solving, and the curtailment of free speech must be actually necessary to the solution." Brown , 564 U.S. at 799, 131 S.Ct. 2729. "A statute is narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy." Frisby v. Schultz , 487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (quoting City Council of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789, 808–10, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) ).
The State argues the Texas Court of Criminal Appeals has concluded that the statute at issue here serves "the State's interest in ensuring that political advertising is attributed to its originating and actual source." See Doe , 112 S.W.3d at 536. The State's argument, however, lacks context. Doe did not conclude that § 255.004 survives strict scrutiny.
In addition, the State's asserted interest here is "deterring fraud and diminishing corruption in elections," not attributing political advertising to its actual source.
Doe involved the constitutionality of a different section of the election code, § 255.001. Id. at 534. That section required persons entering into contracts or agreements for print, publication, or broadcasting of a political advertisement to identify, within the advertisement, the person who made the contract or the person he represented. Id. The court concluded that the statute was not narrowly tailored and violated the First Amendment. Id. at 537. When analyzing whether the statute was narrowly tailored, the court considered whether there were other statutes in place to achieve the state's asserted interests. Id. at 536–37. Although § 255.004(b) was among the statutes the court identified, the court did not examine the statute beyond its identification or analyze whether it was narrowly tailored to achieve the state interests asserted in the present case. See id. Accordingly, Doe does not control the constitutional inquiry here.
Moreover, the question is not whether § 255.004(b) serves the state's interests. Instead, we are tasked with determining whether the statute is narrowly tailored to serve those interests using the least restrictive means. See Brown , 564 U.S. at 799, 131 S.Ct. 2729.
Statutory Language
Statutory construction begins with the language of the statute. See Timmins v. State , 601 S.W.3d 345, 348 (Tex. Crim. App. 2020). Section 255.004(b) criminalizes knowingly representing in a campaign communication that the "communication emanates from a source other than its true source." TEX. ELEC. CODE § 255.004(b). The statute does not define "true source."
Although the State argues that the statute requires a "true source" to prevent communications that mislead the public, it admits the statute does not expressly address misleading communications. Instead, the State posits that "inherent in the concept of ‘true source’ " is the common-sense notion that "a source that is not true is a lie." In other words, if a source is not true it is false. We construe a statute by giving effect to the plain meaning of its language unless the language is ambiguous or the plain meaning leads to absurd results. Ex parte Perry , 483 S.W.3d 884, 902 (Tex. Crim. App. 2016). Words and phrases are read in context according to the rules of grammar and common usage. TEX. GOV'T CODE ANN. § 311.011(a). "Where the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute." Coit v. State , 808 S.W.2d 473, 475 (Tex. Crim. App. 1991).
Applying these principles here, the plain language of the statute clearly prohibits representations, not misrepresentations. See TEX. ELEC. CODE § 255.004(b). Thus, the statutory restrictions are not limited to communications that are false. By use of the word "representation," the statute captures communications of any kind or character from any source other than a "true source." This includes anonymous speech, speech that is true, and speech on behalf of another made with consent. This expansive reach is problematic because it demonstrates less than precise tailoring to achieve the state's objectives. Moreover, the statute is not narrowly tailored to prevent false speech or misrepresentations, the very interests the State seeks to advance.
False Speech and Misrepresentations
The State argues that the purpose of the statute is to protect voters from confusion and undue influence by preventing misleading communications. We view the State's efforts to protect voters from confusion by restricting speech with skepticism. See Eu , 489 U.S. at 228, 109 S.Ct. 1013.
To the extent that § 255.004 is aimed at misleading statements in political campaigns, the State's interests are already served by a more specific section of the election code which provides:
A person commits an offense if, with intent to injure a candidate or influence the result of an election, the person misrepresents the person's identity or, if acting or purporting to act as an agent, misrepresents the identity of the agent's principal, in political advertising or a campaign communication.
TEX. ELEC. CODE ANN. § 255.005 (emphasis added). Other sections of the election code address representations and misrepresentations in the election process. See, e.g. , TEX. ELEC. CODE ANN. § 255.006 (misleading use of office title), § 255.008 (disclosures on political advertising for judicial office). The penal code addresses online impersonation. See TEX. PENAL CODE ANN. § 33.07. The Texas Ethics Commission also exists "for the express purpose of regulating elections and eliminating opportunities for undue influence over elections and governmental actions." See TEX. GOV'T CODE ANN. § 571.001. And other state laws deter false statements through tort claims. See, e.g. , TEX. CIV. PRAC. & REM. CODE ANN. § 73.001 (libel).
The primary distinction between § 255.005 and § 255.004 is that .005 prohibits misrepresentations, while .004 prohibits representations of all types. The State offers no explanation as to why, in light of § 255.005, the challenged statute is also necessary to prevent misrepresentations. Moreover, the State offers no empirical evidence that § 255.004 is necessary. Rather, the State relies on "common sense" to establish that false statements are antithetical to fair and honest elections. Although the general premise is inarguable, merely relying on common sense does not satisfy the heavy burden when protected speech is regulated. See Alvarez , 567 U.S. at 726, 132 S.Ct. 2537. "Conjecture" is inadequate to carry a First Amendment burden. See Nixon v. Shrink Missouri Gov't PAC , 528 U.S. 377, 379, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000).
The State argues that the statutes differ because .005 uses the word "identity," and .004 uses the word "source." But the State offers no insight into how the commonly understood meanings of those words clarifies the distinction between representations and misrepresentations. Further, the State does not argue that .005 misrepresentation of "identity," which is not statutorily defined, is not sufficiently broad to include the types of campaign communications at issue here.
There is nothing to establish that identifying the source of a communication prevents misrepresentations and false statements. See Brown , 564 U.S. at 799, 131 S.Ct. 2729 (curtailment of free speech must be necessary to the solution). Indeed, the statute allows fraudulent and untrue statements. Of course, the identity of a source can be helpful in evaluating ideas. But the State cannot reasonably argue that providing this additional information makes a fraudulent or untrue statement any less so. A false statement is still false even if the source is disclosed. And it is well-established that "if authority is to be reconciled with freedom," the remedy for speech that is false is speech that is true. See Whitney v. California , 274 U.S. 357, 377, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring).
The State also fails to dispel the generally accepted proposition that counter speech may provide a less restrictive means of advancing the state's interests. See Alvarez , 567 U.S. at 726–28, 132 S.Ct. 2537 (discussing counter speech as more effective remedy for false speech). Our constitutional tradition is deeply rooted in the notion that "the best test of truth is the power of the thought to get itself accepted in the competition of the market." Abrams v. United States , 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting). There is nothing to suggest that counter speech is an inadequate remedy here.
The Supreme Court's decision in McIntyre further informs our analysis. See McIntyre , 514 U.S. at 345, 115 S.Ct. 1511 ; see also Doe , 112 S.W.3d at 538 (Keller, J., concurring) (concluding that McIntyre would be determinative if the Texas statute was sufficiently comparable to the statute in McIntyre ). In McIntyre , the court held that an Ohio statute prohibiting distribution of anonymous campaign literature directly regulated the content of "pure speech" in violation of the First Amendment. Id. Applying strict scrutiny, the court concluded that the statute was not narrowly tailored to achieve the interests advanced by the state. Id. at 347, 115 S.Ct. 1511.
Although the court used the phrase "exacting scrutiny," the reference was followed by a citation to Meyer v. Grant , 486 U.S. 414, 420 [108 S.Ct. 1886, 100 L.Ed.2d 425] (1988), which the opinion identified as "unanimously [applying] strict scrutiny." Id. at 345 n.10, 115 S.Ct. 1511. The court also distinguished between cases involving pure speech and those controlling the mechanics of the election process and referenced the "strictest standard of review." See id. at 347–348, 115 S.Ct. 1511.
The state interests advanced in McIntyre were much like those at issue here; namely, informing the electorate and preventing fraud. Id. The court concluded that the state failed to show that its interest in "preventing the misuse of anonymous election-related speech justifie[d] a prohibition on all uses of that speech." Id. at 357, 115 S.Ct. 1511. The Ohio statute required that an individual's name and address be included on campaign literature intended to influence the election process. Id. at 344, 115 S.Ct. 1511. The court rejected the necessity of this information, concluding that, "[t]he 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. at 347, 115 S.Ct. 1511.
The state's argument that the statute served its interest in preventing fraud and libel was similarly unavailing. Id. at 343–44, 349–53, 115 S.Ct. 1511. The court acknowledged that preventing election fraud "carries special weight." Id. at 349, 115 S.Ct. 1511. But, recalling its rejection of a similar argument involving a California ordinance, the court observed that like the California ordinance, the Ohio statute "likewise contain[ed] no language limiting its application to fraudulent, false or libelous statements." Id. at 343–44, 115 S.Ct. 1511 (citing Talley v. California , 362 U.S. 60, 80, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960) ). And the state's interest did not justify the "extremely broad prohibition" because the prohibition included "documents that [were] not even arguably false or misleading." Id. at 350, 115 S.Ct. 1511. Moreover, because there were other state laws to protect the state's asserted interest, the statute under consideration was not the state's "principal weapon against fraud." Id. at 349–50, 115 S.Ct. 1511.
The court noted that Talley was distinct because that case involved a complete ban on anonymous documents, while McIntyr e involved a ban on anonymity in documents intended to influence the election process. Id. at 344, 115 S.Ct. 1511.
In conclusion, the court held:
The State may, and does, punish fraud directly. But it cannot seek to punish fraud by indiscriminately outlawing a category of speech, based on its content, with no necessary relationship to the danger sought to be prevented.
Id. at 356, 115 S.Ct. 1511.
As in McIntyre , the statute here restricts pure speech intended to influence an election. See § 255.004(b) ("with the intent to injure a candidate or influence the result of an election"). It encompasses communications that are not arguably false or misleading and it is not narrowly tailored to achieve the interests advanced by the State. Further, § 255.004(b) is not the State's "principal weapon against fraud." See McIntyre , 514 U.S. at 349–50, 115 S.Ct. 1511. And like the statute in McIntyre , § 255.004(b) imposes an impermissible restriction on anonymous speech.
Anonymous Speech
The State concedes, as it must, that the prosecution of anonymous speech is unconstitutional. See McIntyre , 514 U.S. at 342, 115 S.Ct. 1511. Indeed, this country has "a respected tradition of anonymity in the advocacy of political causes." Id. at 343, 115 S.Ct. 1511.
The State also acknowledges that an individual can be prosecuted under the statute if he fails to identify the source of the communication and that determination of the source is based on the listener's perception. This constitutes prosecution of anonymous speech.
"Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind." Talley , 362 U.S. at 64, 80 S.Ct. 536 ; McIntyre , 514 U.S. at 341 n.4, 115 S.Ct. 1511. "Because ‘[a]nonymity is a shield from the tyranny of the majority’ [it] thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society." McIntyre , 514 U.S. at 357, 115 S.Ct. 1511 (quotation omitted).
The Federalist Papers, written by Alexander Hamilton, James Madison, and John Jay, but published under the pseudonym "Publius" are one of the best examples of anonymous political speech. See id. at 343, n.6, 115 S.Ct. 1511. The opponents of the Federalists, the anti-Federalists, also used pseudonyms to express their views anonymously. Id. In addition, many political figures use an alter-ego account to post on social media. Section 255.004(b) would criminalize these writings for failure to identify their "true source."
Mark Twain, O'Henry, Voltaire, and others have also produced great works of literature writing under assumed names. Id. at 343, n.4, 115 S.Ct. 1511.
For example, Mitt Romney has posted under the alter-ego account "Pierre Delecto."
Although McIntyre involved an express prohibition on anonymous speech, cloaking such a restriction under a "true source" requirement is no less pernicious. The "true source" requirement here is tantamount to a ban on anonymous speech and such a ban is constitutionally impermissible. See id. at 356, 115 S.Ct. 1511.
True Speech and Communications by an Agent
The absence of narrow tailoring is further illustrated by the additional categories of protected speech captured by the statute: true speech and speech made by an agent.
It is well-established that the First Amendment imposes no litmus test for truth in applying its protections. See, e.g., N.Y. Times v. Sullivan , 376 U.S. 254, 271, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (no recognized exception for any test of truth); Nat'l Ass'n for the Advancement of Colored People v. Button , 371 U.S. 415, 445, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) (constitution shelters speech without regard to truth, popularity, or social utility).
Nonetheless, in light of the State's argument that the statute targets falsity, it is important to note that a communication need not be false to run afoul of the statute—the statute also restricts communications that are true. See TEX. ELEC. CODE § 255.004(b).
The State offers no guidance as to how the dissemination of true information dispels voter ignorance. Yet true communications are punishable under the statute. Imagine, for example, a candidate who is a registered Democrat but does not want to be so identified because the voting demographic is largely Republican. Fred posts on social media that the candidate is a Democrat, a truthful statement that arguably informs the voters. But if Fred fails to identify the "true source" of that communication, he is subject to prosecution under the statute. This restriction on true speech further undermines the State's assertion that the statute is narrowly tailored to protect against false information.
The statute also criminalizes communications made on behalf of another with consent. Unlike § 255.005 (the statute restricting misrepresentations), which clearly delineates the circumstances in which agent communications are actionable, § 255.004(b) leaves the matter open to interpretation.
For example, if an intern posts on social media or sends a group text on behalf of a candidate stating that "Candidate X opposes this law," the post violates the statute if the post does not identify the candidate or the intern as the "true source" of the information, regardless of whether the intern was acting on behalf of the candidate with his permission, and regardless of whether the information is true. In this age of electronic communication, the problem compounds exponentially as people post and re-post the original content. The "true source" of the communication becomes an abyss, the interpretation of which is left to prosecutorial discretion.
The statute was enacted in 1987, before the wide use of the internet and social media. Since that time, there is only one reported case involving an indictment under the statute, and that case involved issues other than the constitutionality of the statute. See Ex parte Charette , Nos. 14-19-00855-CR, 14-00856-CR, 00857-CR, 14-00858-CR, 2021 WL 1538197, at *1 (Tex. App.—Houston [14th Dist.] Apr. 20, 2021, pet. filed) (mem. op.).
In this scenario, each individual reposting or repeating the initial communication would arguably be subject to prosecution. Although each individual's culpability would turn on whether that individual knew that the communication did not emanate from its true source, the volume of potential charges stemming from a single communication highlights the dilemma posed by the statutory imprecision.
Similarly, suppose the Republican party recruits volunteers to get out the vote through a text messaging campaign. Volunteers are given access to a computer program that allows volunteers to use their personal phones to send messages to the target audience, but the program conceals the actual phone number of the volunteer. If the volunteer knows that a dummy number shows as the source of the texts he sends, the volunteer could be charged under the statute.
Because the statute captures true speech and communications made by an agent with the speaker's consent, communications which have no arguable nexus to the state's asserted interests, the statute eliminates far more than "the exact source of the evil it seeks to remedy." See Frisby , 487 U.S. at 485, 108 S.Ct. 2495.
Additional Narrow Tailoring Concerns
The statute is also not narrowly tailored because the absence of a statutory definition for "true source" leaves the determination to prosecutorial discretion. Is a "true source" the original source? Is it an accurate communication made by one other than the original source that is in accord with facts and reality? According to the State, the determination of a true source is a fact-specific inquiry. But relying on ad hoc factual inquiry to determine whether speech is prohibited simply underscores the extent to which the expansive scope of the statute captures significant amounts of protected speech far beyond the interests the state seeks to advance.
The State's factual development argument is of particular concern. The issue is not whether the State can ultimately prove its case, but whether an ordinary person is informed about the proscribed conduct so that he can conform his conduct accordingly. See State v. Edmond , 933 S.W.2d 120, 125 (Tex. Crim. App. 1996) (due process clause requires that penal statutes inform an ordinary person whether their conduct is prohibited and provide minimal guidelines for law enforcement to prevent arbitrary and discriminatory enforcement). Factual development occurs at trial, after an individual has been charged. At that point, however, the damage is done, and the State's subsequent inability to prove a statutory violation does little to mitigate the harm resulting from a charge or the chilling effect the threat of such charges may have on protected speech. If certain types of speech are to be punished, a criminal violation must depend on a person's actions, not how others perceive those actions. The State's interests could be achieved through less problematic means.
The State also argues that the statute's scienter requirements "further, and unambiguously limit its scope." According to the State, the statute leaves no doubt about what communications offend it because it "only encompasses" a communication that is (1) intended to injure a candidate or influence the result of an election and (2) made with the knowledge that it comes from a source other than a true source. This argument is misplaced.
The "true source" criterion is the crux of the problem, and the scienter requirements do little, if anything, to narrow the extensive reach of this statutory element before an individual is charged. As we have noted, a "true source" includes truthful speech, anonymous speech, and speech made on behalf of another, as well as false speech and misrepresentations. The assessment of whether a communication emanates from its true source is left to prosecutorial discretion. Thus, the mens rea requirements do not mitigate or eliminate the risk of chilling protected speech or guard against the danger of arbitrary and discriminatory enforcement.
Under these circumstances, we conclude the State has not met its burden to rebut the presumed invalidity of this content-based speech regulation. See Playboy , 529 U.S. at 817, 120 S.Ct. 1878. In so concluding, we are cognizant of the damage fraudulent speech inflicts on the political process. But as the Supreme Court has observed, "[p]olitical speech by its nature will sometimes have unpalatable consequences ... and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse." McIntyre , 514 U.S. at 357, 115 S.Ct. 1511 (citing Abrams v. United States , 250 U.S. 616, 630–31, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting)).
III. Conclusion
"Neither lies nor [misrepresentations] serve the ends of the First Amendment, and we do not suggest their desirability or further proliferation." Bentley v. Bunton , 94 S.W.3d 561, 595–96 (Tex. 2002). But if the government seeks to restrict protected First Amendment speech, the Constitution demands, and our law requires, a narrowly tailored statute. That narrow tailoring is absent here.
Because we conclude the statute is not narrowly tailored to protect the state's interest in fair and orderly elections by deterring fraud and corruption, we need not reach Stafford's remaining issues. See TEX. R. APP. P. 47.1.
We reverse the trial court's order denying Stafford's application for writ of habeas corpus and remand the case to the trial court with instructions to dismiss the prosecution of charges against Stafford for alleged violation of TEX. ELEC. CODE § 255.004(b).