No. JC-0243 (2000).

• Case Date: June 29, 2000
• Court: Texas

Texas Attorney General Opinions 2000. No. JC-0243 (2000). June 29, 2000Opinion No. JC-0243Tex. Att'y Gen. Op. No. JC-0243 (2000) -- John Cornyn AdministrationOffice of the Attorney General - State of Texas John CornynThe Honorable Debra DanburgChair, House Committee on ElectionsTexas House of RepresentativesP. O. Box 2910Austin, Texas 78768-2910SYLLABUS: 2000-0243 Re: Constitutionality of section 255.001(a), Texas Election Code, in light of the United States Supreme Court's decision in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (RQ-0181-JC) Dear Representative Danburg: You have asked the opinion of this office as to the constitutionality of section 255.001(a) of the Election Code in light of the decision of the United States Supreme Court in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), that a similar Ohio statute prohibiting anonymous campaign literature violated the First Amendment. Because McIntyre itself is in certain respects ambiguous, because lower courts have differed in their approach to these ambiguities, and because neither the United States Supreme Court, the Texas Supreme Court or Court of Criminal Appeals, nor the United States Court of Appeals for the Fifth Circuit have spoken on these issues, our advice must be limited to a review of the relevant arguments on these unsettled matters. However, it is clear on the basis of McIntyre that to the extent that section 255.001(a) attempts to prevent an individual from creating and distributing anonymous printed material from his own resources advocating a position on a particular issue - rather than the choice of a particular candidate - in an election, it violates the First Amendment and is void. Because McIntyre may be read narrowly, and in accordance with the Texas Supreme Court's declaration that "we should, if possible, interpret statutes in a manner to avoid constitutional infirmities," Osterberg v. Peca, 12 S.W.3d. 31, 51 (Tex. 2000), as well as the directive of section 311.021(1) of the Government Code to the same effect, we presume it to be constitutional in all other respects. Section 255.001(a) of the Election Code reads: (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. Tex. Elec. Code Ann. § 255.001(a) (Vernon Supp. 2000). Political advertising is defined for the purpose of Title 15 of the Election Code as follows: (16)"Political advertising" means a communication supporting or opposing a candidate for nomination or election to a public office or office of a political party, a political party, a public officer, or a measure that: (A)in return for consideration, is published in a newspaper, magazine, or other periodical or is broadcast by radio or television; or (B)appears in a pamphlet, circular, flier, billboard or other sign, bumper sticker, or similar form of written communication. Id.§ 251.001(16) (emphasis added). The United States Court of Appeals for the Fifth Circuit held in a case involving a television broadcaster that the "sponsorship identification requirement" of section 255.001(a)'s statutory predecessor did not violate the First Amendment, because any infringement on the broadcaster's rights was "of an extremely limited nature" while "the state interest [in the preservation of the integrity of the electoral process] is compelling." KVUE, Inc. v. Moore, 709 F.2d 922, 937 (5th Cir. 1983), aff'd, 465 U.S. 1092 (1984). However, the KVUE case precedes McIntyre, about which you inquire, and as we shall discuss may to some extent have been overturned sub silentio by McIntyre. Accordingly, it is to that case we must turn. In McIntyre, the Supreme Court considered an Ohio statute which forbade any person to "write, print, post, or distribute, or cause to be written, printed, posted, or distributed, [a publication] designed to promote the...