Complaint Against Fero A Wake Up Call For Blogger Rights And Protections
The more I read about the criminal complaint filed by House Parliamentarian Terry Keel against Austin political consultant Kelly Fero, the more I realize this is a wake-up call for bloggers across Texas to demand that we receive the same rights and privileges as the members of the media are afforded under Texas law.
Fred Lewis has already done an excellent job explaining why Keel’s criminal complaint is nothing more than a bogus distraction in the Travis County DA’s race.
I want to take that a step further, and note exactly why this case should be a wake-up call for bloggers and citizen journalists across Texas. First, let’s take a look at the text of the two portions of the Texas Election Code upon which Keel bases his complaint:
§ 255.004. TRUE SOURCE OF COMMUNICATION. (a) A person commits an offense if, with intent to injure a candidate or influence the result of an election, the person enters into a contract or other agreement to print, publish, or broadcast political advertising that purports to emanate from a source other than its true source.
(b) 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.
(c) An offense under this section is a Class A misdemeanor.
And…
§ 255.005. MISREPRESENTATION OF IDENTITY. (a) 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.
(b) An offense under this section is a Class A misdemeanor.
Let’s take 255.004 first.
The law tells us that it is a criminal offense to enter into a contract or agreement to print, publish, or broadcast “political advertising” that is made to appear that it comes from a source other than its true source.
There are numerous problems with this law, first enacted in 1987, when examined in the light of the fact that the Internet has fast become a major means of political communication. For one thing, there is nothing to stop any political candidate from filing a criminal complaint against a blogger who is opposing them and making the claim that they are getting their information from a political campaign and have agreed to publish it. Clearly, if the language only said “contract,” that would be a different story; no blogger would enter into such a contract. However, an “agreement” could merely be a blogger saying, “yes, I’ll publish that information,” and then doing so.
The Election Code is blind to the fact that political campaigns, consultants, and even grassroots activists use blogs as a primary source for leaking information detrimental to their opposition. This is done on both sides of the political aisle.
Furthermore, when anyone leaks information to a blog–be it a grassroots supporter, a campaign, the candidate, or a consultant, the argument can be made that constitutes an attempt to disguise the source of the original information.
All of this, of course, hinges on the fact of whether or not a blog post constitutes political advertising–regardless of who the blogger is writing the post. While Fred Lewis did an excellent job in his BOR diary of explaining why a blog post isn’t political advertising, we are in fully uncharted waters in this regard. Whether Keel’s complaint is considered valid by the DA or not, nothing will close the potential floodgate of complaints against bloggers except legislative action. The Texas Legislature must take steps to more fully define what is and is not political advertising, giving protection to bloggers and citizen journalists equal to what is given to the media. If the media gains a leak from a campaign and publishes it, no one questions whether or not it is political advertising. However, evidently people (especially Terry Keel) now feel they can raise such questions against bloggers.
The second subsection of 255.004 is even more troubling:
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.
“Campaign communication” is even more loosely defined than “political advertising.” What will stop Republicans from deciding that every blog post that appears to come from a confidential source or campaign violates the above statute? How many bloggers in Texas will be placed at risk? Again, legislative change is a necessity here.
Look now at 255.005, which is perhaps the most troubling statute in question:
§ 255.005. MISREPRESENTATION OF IDENTITY. (a) 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. [Emphasis added]
Note the text in bold above. Read only the text in bold (a violation of which, in and of itself, would constitute a Class A Misdemeanor) and tell me that it doesn’t put every blogger in Texas who writes about politics and does so under the protection of a pseudonym at risk for a criminal complaint. Writing under a pseudonym is clearly able to be considered a misrepresentation of identity. And, clearly, bloggers are working for nothing if not to influence the results of an election.
Thanks to the litigious Mr. Keel, Republicans across the state have now received the tacit signal that this is a mechanism by which they can attempt to silence a blogger.
The Texas Legislature must act on this in its next session. At least one Texas appeals court has already noted just how important allowing bloggers to keep their anonymity is to the “exchange of ideas and robust debate on matters of public concern:”
Several courts have noted that Internet anonymity serves a particularly vital role in the exchange of ideas and robust debate on matters of public concern.
While that case dealt with a discovery rule and an instance where a state district judge ordered an ISP to release the identity of a blogger, that particular conclusion applies in this context as well.
While we are discussing this, it is an excellent time to bring up the fact that Texas’ citizen journalists and bloggers continue to lack the same protections as media journalists when it comes to speaking about “privileged matters,” such as elections, when it comes to libel and slander lawsuits.
Texas bloggers and citizen journalists need the protections of the “Privileged Matters” clause of the Texas Civil Practices and Remedies Code, period. See our previous writing on this here and here.
Written by Vince Leibowitz
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