If the issue in this case were whether section 255.001 of the Texas Election Code (the Texas statute) was unconstitutional as applied to John Doe, it would be an easier case. I think it is clear that in this case the State could validly prohibit John Doe from circulating the Pinocchio flier without the required disclosure.

However, the issue in this case is whether the statute is impermissibly overbroad, facially unconstitutional, and thus void. Although the issue in this case requires a more abstract analysis, I think the result, finding the statute constitutional, should be the same.

While conceding the State's interests in this case are compelling, the majority concludes that the statute is unconstitutional on its face because it is "not sufficiently narrowly tailored to serve an overriding state interest without placing an undue burden on constitutionally protected political free speech." Because I disagree, I must respectfully dissent.

An appropriate analysis begins by recognizing that the Texas statute is presumptively constitutional. See Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). The majority relies on the reasoning in McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 131 L. Ed. 2d 426, 115 S.Ct. 1511 (1995)(holding unconstitutional an Ohio statute prohibiting all anonymous political advertisement because it was not sufficiently tailored to serve overriding state interests.). Although I agree with Justice Scalia that McIntyre was wrongly decided, I recognize that the decision is binding on this Court. However, I do not believe the majority's reasoning in McIntyre requires us to find the Texas statute unconstitutional.

First, because the Texas statute regulates the electoral process and interdependent, commercial activity, the case should be controlled not by the holding in McIntyre, but by the United States Supreme Court's holding in Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d 659, 96 S.Ct. 612 (1976)(per curiam)(upholding certain provisions of the Federal Election Act requiring private individuals to report certain expenditures in a candidate election), and we should find that the statute is a constitutional regulation of the electoral process.

Second, the Texas statute materially differs from the Ohio statute at issue in McIntyre in ways that make it sufficiently tailored to serve the interests the State specifically advances. The Ohio statute addressed in McIntyre prohibited all anonymous political advertisement. The Texas statute prohibits anonymous political advertisement only where it was printed, published or broadcast pursuant to a contract or other agreement. Tex. Elec. Code Ann. 255.01 (Vernon Supp. 2003). The McIntyre majority recognized that a more limited identification requirement addressing different circumstances might be justified by the State's interest in protecting an election process. McIntyre, 514 U.S. at 353. I believe the Texas statute falls within the realm of statutes the majority recognized would be so justified and thus be found to be constitutional.

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. Id. at 347.

In recognizing that it is an independent offense to agree to publish a political advertisement that purports to emanate from a source other than its true source, the majority fails to address the state's true concern, not regarding false identification of the source, but regarding the intended erroneous assumptions that may be made regarding the source when the source is not identified at all. Such misleading could be accomplished without including actionable misrepresentations within the advertisement.

Turning to address the burden the Texas statute imposes on political speech, the majority seems to argue that the Texas statute will inhibit the McIntyres of the world from disseminating their fliers.

First, there are ways available to a significant portion of the electorate to anonymously disseminate political ideas to a significant portion of the electorate. For example, one may voice political ideas as an anonymous source in the news media by communicating confidentially with a reporter or writing letters to the editor, or one may send targeted mailing and emails or post messages on the internet message boards and chat rooms, and so forth.

Second, tailoring the statute to prohibit only political advertisements printed, published, or broadcast pursuant to contracts or agreements between two or more people regulates those with the most resources, those most likely to be subject to the campaign reporting regulations, leaving those with little resources to the methods they would use to disseminate their political ideas were the statute not in place.

Additionally, the majority fails to address the effect of the statute allowing an individual to remain anonymous by creating an organization as the "person" represented or by using an intermediary and disclosing only the information of the agent entering into the contract. ⁽¹⁾

It is conceivable that the phrase "contract or other agreement to print, publish, or broadcast" in the Texas statute could be construed to regulate political advertisements copied by individuals at copy centers pursuant to an agreement that the individual may use the copier to print the advertisements for a price. See Tex. Elec. Code. Ann. 255.001 (Vernon Supp. 2003). The statute could be construed to regulate all political advertisements distributed by an individual through the mail pursuant to an agreement that the mail service deliver the advertisements to the addressees. It could be construed to regulate any political advertisement delivered by email or posted on the internet pursuant to an agreement with an email provider or host to provide such services. It could also be construed to regulate political advertisements placed on car windshields pursuant to an agreement with a friend to print the advertisements on the friend's home computer and help distribute them. However, all of these examples would require courts to embrace an absurd construction of the statute, clearly beyond the intent of the legislature. Such unintended applications can be sufficiently controlled through our ability to determine when a statute is unconstitutional as applied. Cf. Doe v. Mortham, 708 So.2d 929, 930 n.3, 934-35 (Fla. 1998)(upholding the constitutionality of a political advertisement disclosure statute by construing the statute as not applying to independent conduct such as McIntyre's, and noting the ability of the court to address statutory infirmities on an "as applied basis.")

Because I would find the Texas statute sufficiently tailored to serve overriding state interests and thus constitutional, I respectfully dissent.

FILED MAY 14, 2003.

PUBLISH

1. Tex. Elec. Code Ann. 255.001(a)(2) & (3) read:

(a)(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 fo 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.