.   .



                       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.



                                     pa 1514
.




    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) .


                                             po 1516
.   -




        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
                                               p-   1518
