Texas AG refuses to defend Texas ban on using legislative footage in political ads

|The Volokh Conspiracy |

The San Antonio Express-News reports that the Texas attorney general's office "has declined to represent the Texas Ethics Commission" in defending Texas Gov't Code § 306.005. That statute bans (on pain of a penalty of up to $5,000), "us[ing] audio or visual materials produced by or under the direction of the legislature or of a house, committee, or agency of the legislature in political advertising," except when "quoting the verbal content" of the materials, or using a photograph of a legislator. A Texas House candidate, Briscoe Cain, wants to use footage of his opponent, Rep. Wayne Smith, in Cain's campaign ads.

The attorney general, I think, is quite right. My view is that state AGs should generally defend state statutes that are arguably constitutional, even if there's a good argument that they're unconstitutional. But this statute is clearly unconstitutionally overbroad, and thus violates the First Amendment: It's a content-based restriction on the use of publicly available materials, which means that it can be upheld only if it's narrowly tailored to a compelling government interest—and that test can't be met here.

The law can't be justified on the theory that the state has a property right in the recordings. (Under copyright law, states can have copyrights in works that their employees create.) Federal copyright law doesn't bar all uses of recordings: The fair use defense would authorize many political uses, yet the statute here would apply even when the use is a fair use under copyright law. And, as Harper & Row v. Nation Enterprises (1985) makes clear, that is a principle of First Amendment stature: Even if a state can set up trans-copyright property rights in video and audio that it records (which I doubt, since I think copyright law would likely preempt such rights), it can do so only if it offers a fair use defense, something this statute does not do.

Now narrower rules might be defensible. If, for instance, a state legislature had made footage available on its site but required users to sign a contract promising not to use it in political ads, that might be permissible (see the debate in L.A. Police Dep't v. United Reporting (1999)). I think it would still be unconstitutional, but an AG could plausibly choose to defend it.

But the statute has no such narrowing feature. It's broad. It covers speech that's outside any possibly relevant First Amendment exception. It's content-based, because it distinguishes "political advertising" from other speech. There's no compelling government interest that can justify this sort of restriction (and the compelling interest is very hard to satisfy when it comes to content-based speech restrictions). The Texas attorney general got this one right.