. .
THEA'ITORNEYGENERAL
OF TEXAS
AUSTIN. T-s 1SVll
June 14, 1974
The Honorable Ed J. Harris, Chairman Opinion No. H- 327
Elections Committee
House of Representatives Re: Whether newspaper’s
P. 0. Box 2910 publication of column by
Austin, Texas 78767 officeholder who is also
a candidate, is a campaign
contribufion u&m Aitidle
14. 01(c), Texas Election
Dear Representative Harris: Code.
On behalf of the Elections Committee, you have requested our opinion
concerning provisions of the Campaign Reporting and Disclosure Act of
1973 (Acts 1973, 63rd Leg., ch. 423, p. 1101).
Your first question is:
Is newspaper column space provided without charge
by a Texas newspaper corporation to an incumbent
officeholder while that officeholder is a candidate for
public office a ‘contribution’ within the meaning of
Art. 14.01(c), Vernon’s Texas Election Code?
The practice with which you are concerned is a common one. This
writer prepares and offers a column for publication, as did my predecessor
in the office. In view of this, I also have an interest in the question, but
do not think it influences our view of the law.
In order to focus upon the central issue, we will make certain assumptions
consistent with th.e actual practice. We assume that the public official pre-
pares and distributes the information as a part of his official duties, that he
receives no payment from newspapers for writing it, that it is made avail-
able to any newspaper or other media that might publish it, and that the
material is prepared and published for the purpose of bringing newsworthy
information to the attention of the public. We further assume that the news-
paper retains complete authority in regard to whether or not to publish the
information or any part of it. For example, we assume the newspaper may
The Honorable Ed J. Harris, page 2 (H-327)
reject the material, publish it as a column, or utilise the information
in an article and attribute it to the official.
The question is whether a newspaper’s publication of such written
information provided by an elected public official, in a column or sesns
other form, while he is a candidate, is a “contribution” within the .
meaning of Article 14.01(c) of the Texas Election Code, which provides:
‘Contribution’ is defined as any advance, deposit,
or transfer of funds, contract or obligation, whether
enforceable or unenforceable, to transfer any funds,
goods, seririces. or anything of value to any candidate
or political committee involved in an election.
If a newspaper’s publication of an incumbent candidate’s written
material, such as is here under consideration, were to be considered
a ‘kontribution” as defined above, and the newspaper is published by
a corporation, it could be a criminal offense for such material to be so
printed, since corporations are prohibited from making campaign contri-
butions under Art. 14.07 of the Election Code, which read8 in pertinenf
part:
(a) o D o [N]o corporation shall give, lend or pay
money or other thing of value d 0 a directly or indirectly,
to any candidate, political committee., . e . or any other
person, for the purpose of aiding or defeating the nomina-
tion or election of any candidate o . 0 e
Knowing receipt of such a corporate %ontribution” might also subject
the candidate to felony criminal liability under Atticle 14,07(e) of the
Election Code. Failure to record and report the “contribution” would
violate the provisions of Art. 14.08(a) and (c), and subject the candidate
to the criminal and civil penalties of that Article.
Under such a construction, any publication by a newspaper’corporation
of any written material provided by either the incumbent or challenger,
except as a paid political advertisement, might be considered a prohibited
campaign contribution Moreover, all newspapers could be left to a
guessing game, with little statutory guidance, as’to which of their freely
published materials concerning candidates, politks and governmental
affairs are within the meaning of “contributions” under the Election Code.
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.
The Honorable Ed J. Harris, page 3 (H-327)
Such a result was not, in our opinion, intended by the Legislature. In
our opinion, such a construction of “contribution” would lead to absurd
results, constitute a chilling effect upon the exercise of the freedom of the
press, and would be an unconstitutional abridgement of that fundamental
freedom.
The First Amendment of the United States Constitution declares that
“Congress shall make no law . . . abridging the freedom of speech, or
of the press 0 . . e I’
The United States Supreme Court has held that the due process clause
of the Fourteenth Amendment protects freedom of speech and press against
abridgement by state action, including state statutes. Near v. Minnesota,
283 U.S. 697 (1931). and a notable recent case, Time, Inc. V. Hill, 385
U.S. 374 (1967).
Freedom of the press is also protected by the Texas Constitution’s
Bill of Rights:
Every person shall be at liberty to speak,
write or publish his opinions on any subject,
being responsible for the abuse of that privilege;
and no law shall ever be passed curtailing the
liberty of speech or of the press q . 0 . Texas
Constitution, Art, I, Sec. 8. :
The fact that a newspaper is published by a corporation rather than a
natural person does not remove it from the protection of the First
Amendment. The Supreme Court has recognized on numerous occasions
that corporations enjoy the freedom of speech and press. See, e.g.,
Time, Inc. v. Hill, supra; New York Times Co. v. Sullivan, 376 U.S. 254
(1964); Kingsley Int’l. Pictures Corp. v. Regents, 360 U.S. 684 (1959);
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).
The publication of information concerning governmental affairs is given
the greatest protection by these constitutional provisions. In a case in
which the editor of a daily newspaper was convicted of violating a state
statute prohibiting publication of editorials on election day, the United
States Supreme Court held the statute unconstitutional and said:
p. 1515
The Honorable Ed J. Harris, page 4 (H-327)
Whatever differences may exist about interpretations
of the First Amendment, there js practically universal
agreement that a major purpose of the Amendment was to
protect the free discussion of governmental affairs. This
of course includes discussions of candidates, structures
and forms of government, the manner in which govern-
ment is operated or should be operated, and all such
matters relating to political processes . . . . Suppression
of the right of the press to praise or criticize govern-
mental agents and to clamor and contend for or against
change, which is all that this editorial did, muzzles one
of the very agencies the Framers of our Constitution
thoughtfully and deliberately selected to improve our
society and keep it free . . . . It is difficult to conceive
of a more obvious and flagrant abridgement of the consti-
tutionally guaranteed freedom of the press.
Mills V. Alabama, 384 U.S. 214, 218-19 (1966).
The Texas Campaign Reporting and Disclosure Act of 1973 is similar
to the Federal Election Campaign Act of 1971. Both seek to have campaign
contributions identified and reported. Both prohibit contributions by
corporations and labor unions. Compare Arts. 14.04 and 14.07, Election
Code, V. T. C.S. with 18 U.S. C;A.§610 (Supp. 1974).
The Federal Election Campaign Act of 1971 contains a provision to enforce
spending limitations in the communications media upon candidates for
Federal office. Before publishing political advertising in support of or in
derogation of a candidate, the newspaper or other media must obtain a
certificate from the favored candidate that such expenditure would not
exceed his spending limitation. Or, if’no candidate will take credit for
the advertisement, the media must obtain disclosures of political connec-
tion from the sponsor, Federal Election Campaign Act of 1971,§104,
47 u. s. c. A. $803.
This provision was held unconstitutional by a three-judge district
court in a recent case, in which the New York Times refused a political
advertisement submitted by the American Civil Liberties Union, expressing
opposition to the Nixon Administration’s position on busing. The ACLU
refused to comply with certification requirements. The Times refused
publication rather than risk criminal penalties. ACLU v. Jennings, 366
F. Supp. 1041 (D. D. C. 1973)(3 judge court) .
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. -
The Honorable Ed J. Harris, page 5 (H-327)
The court held that the regulatory scheme which threatened the
newspaper with criminal penalties established impermissible prior
restraints, discouraged free and open discussion of matters of public
concern and constituted an unconstitutional means of effecting legis-
lative goals. The Court said:
Exposure to criminal penalties . . . places a
severe and unnecessary burden upon the communica-
tions media to .determine whether or not the proposed
advertisement should be designated as being made on
behalf of a candidate . . . .
This problem . . . is magnified by the failure
of Congress to define clearly the crucial phrase
‘on behalf of a candidate’ so as to exclude from its
coverage expressions of opinion unintended and in-
capable of regulation . . . 0 Having not only been
placed in the unenviable position of enforcers of this
statute, which is aimed at regulating politicians
and not the media, but also faced with criminal
sanctions for any questionable performance of this
duty, the press is entitled to, and the Constitution
demands, proper guidance free from ambiguity
and vagueness . . . .
The legislation provides scarce definitional
or clarifying assistance under which the seller of
advertising space can confidently proceed. ACLU v.
Jennings1 366.F. Supp+‘~?t 1052
The question at land involves some of the same elements of
definitional imprecision and the threat of criminal liability.
In an election contest in which a successful gubernatorial candidate
was charged among other things with a violation of the Minnesota corrupt
practices law in that he failed to report the value of free space furnished
by a newspaper in advocacy of his election, the Minnesota Supreme Court
held:
Section 556 cannot be so construed as to require every
candidate for a public office, at the risk of forfeiting the
office if elected, to ascertain and itemize, ia his verified
p. 1517
. .
The Honorable Ed J. Harris, page 6 (H-327)
expense accounts filed, the value of space devoted
to his election in every newspaper and publication
circulated within the territory wherein reside the
electors whose duty calls on them to vote for or
against him at such election. Such construction
would be absurd . . . . Trones v. Olson, 265
N. W. 806. 808 (Minn. 1936)
In view of the obvious constitutional problems involved in any
statutory provision which might impede a newspaper’s exercise of
its right to publish matter relating to public affairs, and in view
of the relevant legal principles and analogies discussed above, we
construe the definition of “contribution” in Article 14.01(c) of the
Texas Election Code not to include the free publication of such
material provided by an officeholder - candidate by a newspaper,
whether or not it is a corporation.
Inasmuch as your other questions were predicated upon an affirmative
answer to your first question, it is not necessary to respond to them
specifically.
SUMMARY
A newspaper’s free publication of a column
provided by an officeholder - candidate is not a
campaign “contribution” under Article 14.01(c),
Texas Election Code, V. T. C. S.
Very truly yours,
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
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