Can states prohibit “misleading” political communications? Not if the First Amendment has anything to say about it. At least that is the conclusion that the Court of Criminal Appeals of Texas[1] recently reached in Ex parte Stafford.[2]

Texas Election Code § 255.004(b), known as the “True Source Statute,” makes it a criminal offense for anyone to, “with intent to injure a candidate or influence the result of an election, . . . knowingly represent[] in a campaign communication that the communication emanates from a source other than its true source.”[3]

John Stafford, a Democratic Party activist, was accused of sending text messages identifying as various Republican candidates in a local race.[4] After he was indicted, he argued the True Source Statute was facially unconstitutional because “it sought to regulate core political speech and was not narrowly tailored to serve an overriding state interest.”[5] After the trial court rejected his First Amendment argument, Stafford appealed to the Court of Appeals, which found that the law likely violated the U.S. Constitution because it was not limited to false communications, had an “expansive reach,” and “demonstrate[d] less than precise tailoring to achieve the state’s objectives.”[6] Texas appealed, and the Court of Criminal Appeals agreed to review the matter.[7]

Majority Opinion

The Court of Criminal Appeals, with Judge Jesse McClure writing on behalf of six of the nine judges, agreed with the Court of Appeals and found that the True Source Statute was likely unconstitutional.[8] It first emphasized that when the government seeks to restrict and punish speech based on its content, the government rather than the challenger bears the burden of proving the law’s constitutionality.[9] Because the law in question was a “content-based restriction on protected speech,” it was subject to strict scrutiny.[10]

Texas argued that the law’s purpose was to “outlaw” what it considered “dirty tricks relating to campaign communications.”[11] This type of “dishonest conduct” was said to be “harmful to the democratic elections process.”[12] Therefore, Texas claimed that the Court of Appeals had failed to consider its more specific interest in preventing speech that was harmful to the election process rather than the more general interest in preventing “false speech.”[13]

The Court of Criminal Appeals granted that the state “has a compelling interest in preventing certain dishonest conduct that is harmful to the democratic process,” but it said that was not the end of the analysis. In addition to aiming at a compelling interest, the law had to be narrowly tailored.[14] However “legitimate” or even important Texas’s interest was, it was not “sufficient to overcome the practically universal agreement that the major purpose of the First Amendment was to protect the free discussion of governmental affairs.”[15]

The court found that four elements of the True Source Statute contributed to the conclusion that the law was not narrowly tailored.[16] First, the court looked at the intent requirement: the statute criminalizes the conduct at issue where the person intends to “injure a candidate or influence the result of an election.”[17] The court explained that influencing elections “is the essence of political speech” and therefore said it was “difficult to imagine what speech would not be included under the statute.”[18] Indeed, this would include neutral statements, true statements, parody, and false but protected speech.[19] This language was “too broad and encompasse[d] too many statements that have the potential to influence the democratic process.”[20] And because it was so broad, it could open the door for arbitrary governmental decisions about what speech was acceptable and require voters “to rely on the sense of humor, kindness, or leniency of prosecutors when discussing or sharing opinions and messages regarding governmental affairs.”[21]

Second and third, the court considered the requirements that a person “represent” his statement in a “campaign communication.”[22] In combination, these two clauses meant that, to be criminalized under the statute, a communication did not “need to explicitly reference a campaign,” but rather could merely be “related to one,” and therefore the law could encompass “innocuous statement[s]” based on “the recipient’s interpretation of the message.”[23] Once again, the court concluded this provision could lead to arbitrary enforcement and was overly broad.[24]

Fourth, the term “true source” was not defined, and this was problematic.[25] Determining whether a communication came from a “true source” under the statute would require “a fact-specific inquiry” and would “capture[] significant amounts of protected speech far beyond the interests the state seeks to advance.”[26] Furthermore, providing a law’s “true source” did not “make[] a fraudulent or untrue statement any less so” and therefore undermined the state’s asserted interest in preventing false speech that could undermine the democratic process.[27] Moreover, Texas already had a statute that dealt with the “Misrepresentation of Identity,” so the True Source Statute was not necessary to prevent “dirty tricks.”[28] Instead, the law “criminalizes protected anonymous and truthful political speech and has the chilling effect of impermissibly restricting engagement in political discourse.”[29] For instance, the statute would criminalize not only anonymous speech but also “assumed names and omissions,” such as when an author chooses to be anonymous for “fear of retaliation or privacy concerns.”[30]

Finally, the court considered Texas’s argument that counter speech was not an option to remedy misleading campaign speech because “the damage is done once the message is relayed,” and it is not possible to “undo the damage.”[31] The court acknowledged that in some instances this may be so. But it explained that the “State’s argument highlights the fatal flaw with this statute.”[32] Namely, the law “encompasses communications that are not arguably false or misleading” including “anonymous, un-signed, and factually accurate political communications.”[33] As a result, the law could not survive First Amendment scrutiny.

Concurrences

Judge Sharon Keller was joined by three other judges in her concurrence. Judge Keller highlighted how the statute criminalizes “parody and the use of pen names” and therefore “sweeps in an enormous amount of protected speech.”[34] She pointed to the historical example of the authors of the Federalist Papers writing under the pen name of Publius.[35] Under Texas’s law, these authors could have been accused of “describ[ing] the documents as flowing from a source . . . other than its true source.”[36] In modern times, the same could be said of former FBI director James Comey, who used the name of well-known theologian “Reinhold Niebuhr.”[37] Parody accounts and satirical sources like the Onion or Babylon Bee could also be swept up by the law.[38] Because the law failed to narrow the meaning of its terms, it had to be invalidated “to avoid a chilling effect on free expression.”[39]

Judge Mary Lou Keel concurred without filling a separate opinion or joining any of the opinions.

Dissenting Opinion

Judge Kevin Yeary filed the lone dissent. Judge Yeary had three primary concerns with the court’s majority opinion. First of all, he claimed that the court had construed the statute to “ensure its unconstitutionality” rather than to avoid the unconstitutionality.[40] For instance, Judge Yeary argued that the court should have interpreted the phrase “a source other than its true source” to refer only to actual people or entities and not to fictitious or satirical ones.[41] He accused the majority of employing an “overbroad reading of the statute” that “causes it to misidentify the specific evil the statute manifestly targets.”[42] Instead, Judge Yeary saw it as a statute that was “designed to do nothing more than to prohibit a specific kind of fraud.”[43]

Second, he argued that the statute regulated speech that was not “protected speech in the first place.”[44] He claimed that it was “at least arguable that misattributing a political message to a false source is just the sort of ‘fraud’ that the First Amendment simply does not insulate from governmental regulation.”[45] If that was the case, he argued, then the law would withstand any level of scrutiny.[46]

Finally, Judge Yeary argued that the law should survive strict scrutiny because the state had a compelling interest in “preserving the integrity of its election process.”[47] Judge Yeary would have held that the law only makes “it an offense to positively misidentify the source of a campaign communication” and that this therefore did not apply to anonymity, pen names, or parodies, eliminating the issues that the majority identified.[48] Judge Yeary would have also found that the law did not criminalize the underlying political message, just the fraudulent attribution of it.[49] As a result, the law was the least restrictive means of addressing the state’s interest.[50] In closing, Judge Yeary accused the majority of misconstruing the law and putting the state “at risk from the very dangers and campaign ‘dirty tricks’ that this otherwise perfectly good law sought to remedy.”[51]

Conclusion

This majority opinion sends a message to states that may be looking to clamp down on “misleading” speech in the future elections. Efforts to do so will be carefully scrutinized. While narrow categories of fraudulent and malicious speech may, in certain limited circumstances, be restricted, broad bans on “misleading” speech are impermissible. Ultimately, as the Texas Court of Criminal Appeals affirmed, “the remedy for speech that is false is speech that is true” rather than criminalizing disfavored speech.[52]

 

[1] The Court of Criminal Appeals is Texas’s highest appellate court for criminal law matters.

[2] Ex parte Stafford, No. PD-0310-23, slip op. at 17 (Tex. Crim. App., Sept. 4, 2024), available at https://law.justia.com/cases/texas/court-of-criminal-appeals/2024/pd-0310-23.html.

[3] Tex. Elec. Ann. § 255.004(b) (West 2024).

[4] Ex parte Stafford, slip op. at 2.

[5] Id.

[6] Id. at 3.

[7] Id.

[8] Id. at 3–4.

[9] Id. at 4–5.

[10] Id. at 6.

[11] Id. at 7.

[12] Id.

[13] Id.

[14] Id.

[15] Id. (cleaned up) (internal citations omitted)

[16] Id. at 10.

[17] Id. at 11.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id. at 12.

[23] Id.

[24] Id.

[25] Id. at 12–13.

[26] Id. at 12.

[27] Id. at 13.

[28] Id. at 13–14.

[29] Id. at 15–16.

[30] Id. at 16.

[31] Id.

[32] Id. at 17.

[33] Id.

[34] Id. at 18 (Keller, J., concurring).

[35] Id. at 19–20.

[36]  Id.

[37] Id. at 20.

[38] Id. at 21.

[39] Id. at 22–23.

[40] Id. at 23–24 (Yeary, J., dissenting).

[41] Id. at 24.

[42] Id. at 26.

[43] Id. at 27.

[44] Id. at 24.

[45] Id. at 28.

[46] Id.

[47] Id. at 29–30.

[48] Id. at 31–33.

[49] Id. at 33.

[50] Id. at 33–34.

[51] Id. at 36.

[52] Id. at 17 (majority op.) (quoting United States v. Alvarez, 567 U.S. 709, 727 (2010) (plurality opinion)).

 

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