Lehmberg v. Montford, or Dirty Games in Local Politics

As if shadowing every other race this year, the runoff for the Democratic nominee for Travis County District Attorney (and actual DA) has gotten considerably hotter over the last week. The race features veteran Assistant DA Rosemary Lehmberg and Mindy Montford, also a ADA in Travis County. Recently, an anonymous blogger posted that a fairly unpopular fellow around these parts, former TC Sheriff and Craddick-enabler, Terry Keel, was supporting Montford (along with Karl Rove, too.). Lehmberg's campaign seized upon the post and ran with it, hammering Montford for being a wolf in sheep's clothing. Well, as it turns out, the anonymous blogger turned out to be Kelly Fero, also a paid political consultant for Ms. Lehmberg. Oops. While this screw up could cost Lehmberg the election, Terry Keel went a step further and filed a criminal complaint against Fero last week, alleging that Fero had violated Texas election laws, as well as threatening a libel suit. Is there something to either of these claims?


Texas Election Code, Section 255.004 (a) & (b)
Section 255.004, True Source of Communication, reads:

(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.

The implication made by Keel and his lawyer is that there was some sort of deal between Fero and Lehmberg to publish this information anonymously on Austin Political Report. I would think that the biggest hurdle for Keel's complaint to work under subsection (a) is that he's got to show that Fero's claim on a website constituted "political advertising". But if you look at the definition of political advertising under 251.001, you'll find that the Texas legislature defines it as

a communication supporting or opposing a candidate for nomination or election to a public office or office of a political party, a political party, a public officer, or a measure that:
(A) in return for consideration, is published in a newspaper, magazine, or other periodical or is broadcast by radio or television; or
(B) appears:
(i) in a pamphlet, circular, flier, billboard or other sign, bumper sticker, or similar form of written communication; or
(ii) on an Internet website.

Wow. That means essentially that any statement subject to an agreement between a candidate and another that supports or opposes a candidate for political office is a political ad if it appears anywhere on the Internet. Wrote a blog entry? Political ad. Commented on a message board? Political ad. Left a comment to a news story on a website? Political ad. Needless to say, this seems like an exceedingly broad definition of "political ad" which offers greater First Amendment protection to a statement made on the radio or on TV than to anything that has anything to do with the Internet. You would even have a decent argument that an email (unless the State could show that it is a "similar form of written communication") has more protection than some pissant comment on some pissant website. I could go on TV and make a statement while misrepresenting my identity (or call into a radio station or write a letter to the editor that is subsequently published) and be in the clear, but all of a sudden I post on a lightly read blog and I'm a criminal? There might be some traction for a overly narrow attack via the First Amendment here. That is, the statute unfairly penalizes those who engage in this sort of conduct via the Internet and doesn't touch people who do the same thing (or the equivalent act) via TV, radio, or a newspaper.

Suppose, however, that the statute did survive First Amendment scrutiny, then Keel will struggle to prove that the "ad" "purports to emanate from a source other than its true source". Austin Political Report is posted anonymously and makes no representations about who is posting. If you don't state your name, then your not representing anything about your identity other than you're not willing to reveal it to the reader. If Fero had said represented his blog as being written by Keel himself or Rick Perry or Walter Cronkite, then there might be some traction under 255.004. He may have played a very misleading trick on his readers, but he didn't say he was someone he wasn't.

Lehmberg would also be immune from prosecution under subsection (a). She certainly can deny the requisite intent by virtue of her ignorance of the actual source. But assuming you (or a jury) disbelieved her, the campaign attributed the remark to Austin Political Report, not someone else. Technically then, she can argue that she may have failed to completely disclose her relationship to Fero/APR, but did not misrepresent the source of the report.

TEC 255.004, subsection (b) is a different story. A campaign communication is "a written or oral communication relating to a campaign for nomination or election to public office or office of a political party or to a campaign on a measure." This much broader net catches both Fero's publication of the statement and Lehmberg's use of it for her campaign. But it also catches any statement, spoken, written, or posted on the Internet, that has anything to do with any election. I would hope that a court could be persuaded that this is an overbroad restriction on political speech, but I'm not sure the State couldn't convince the court otherwise.

But the conduct required to constitute a violation under subsection (b) is pretty vague (at least in consideration of sources posted anonymously). Basically, any statement that says that a communication is from a source different from the one to whom it is attributed. As near as I can tell, Lehmberg cited APR for the Keel news. This was the source of the news. It just so happens that APR is also owned, operated, and written by Fero, a political consultant working for Lehmberg. "True" is not defined by the statute, so it's not clear if it would be satisfied by disclosure of one's "web handle" or a more "whole truth" or absolute/total disclosure. (Sorry if it seems like I'm parsing words here, but that's what we have to do, especially when it's not entirely clear what the legislature intended.) I guess given this nation's strong connection to anonymously (think Publius and the Federalist Papers) and the protections that courts have extended in similar circumstances (Paris-site's legal victory) I'd have to come down on the side of at least allowing this to satisfy the definition of true.


Texas Election Code, Section 255.005

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.

Misrepresentation is defined by my very dusty copy of the 3rd Edition of Black's Law as "[a]n untrue statement of fact. An incorrect or false representation. That which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists. Colloquially it is understood to mean a statement made to deceive or mislead." Black's isn't the end-all be-all of what the Election Code takes as the definition of misrepresentation, but the term is not defined in that code, so it's at least a good starting point. Let's take each of these definitions in turn with regard to Fero:

- Untrue statement of fact: I'm not sure, as I suggested above, that writing anonymously is necessarily "untrue". If you are clearly writing without identifying yourself, you can at least argue that you are being truthful about your anonymity.
- An incorrect or false representation: The same logic applies here. I haven't said I'm John Smith, I just haven't said who I am.
- Apprehension of condition other and different from that which exists: This definition casts a wider net and arguably picks up the whole truth notion. Specifically, the fact that Fero is not disclosing the fact that he is a paid consultant for Montford's opponent.
- A statement made to deceive or mislead: Again, a wider net means more potential trouble for Fero. He would have no defense here that he didn't know the campaign was going to use this one; the loose definition of "campaign communication" picks up any statement made relating to a campaign.

There is a difference between not naming oneself and giving oneself a false name. But this charge would just come down to how "misrepresents" is defined under the Election Code. And a pre-existing relationship between Fero and Lehmberg makes this even more difficult to sort through.


Texas Civil Practice and Remedies Code, Section 73.001

A libel is a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.

Mr. Keel also hinted that he was considered a civil action for libel against Fero. Basically, a person has a cause of action if another writes a defamatory statement about the person. I think it would be pretty hard for Keel to show that his reputation in Travis County/Austin is somehow impeached or otherwise damaged by Fero's statement; Keel did a good enough job of that as a legislator and a vital cog in Tom Craddick's attempts to retain the Texas Speaker's position. (He's widely vilified here in Travis County, an opinion which has been expressed many times, just in case he doesn't like my assessment either.)

I am not a civil attorney, but I know enough about the law to confidently tell you that this claim is a bunch of horseshit. I'd rely on the lawyer retained by Mr. Fero, Buck Wood, who said it best: "What's in that blog is true ... If they will just file their libel suit, let's get after it. They are afraid of a libel suit." Ah yes, truth is an absolute defense to libel, so if Fero could show that Keel made such a statement, then it's game over. We haven't heard anything more about this supposed lawsuit, and like the whole incident, this is more about trying to make Lehmberg look as bad as possible than it is about Keel recovering any damages or seeking redress for any crimes allegedly committed against him.


Ultimately, this may prove to be a distinction without a difference. Lehmberg and Fero could very well prevail in all of the above legal arguments, but this arrangement still stinks. All the backpedaling and post hoc remedies in the world can't make the stench go away. I guess we'll see what effect this had Tuesday night....


UPDATE: As I was writing this long-winded post, I stumbled on TexasKaos' take on the same subject. I can't say I disagree much. The Legislature has gone after critics on the Web and created a much more privileged spot for people on traditional mass media (maybe because they hate some of the things written about them online???).