Post by pavel on May 1, 2016 0:35:06 GMT -6
Texas AG refuses to defend Texas ban on using legislative footage in political ads
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.
Read more: www.washingtonpost.com/news/volokh-conspiracy/wp/2016/04/29/texas-ag-refuses-to-defend-texas-ban-on-using-legislative-footage-in-political-ads/
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.
Read more: www.washingtonpost.com/news/volokh-conspiracy/wp/2016/04/29/texas-ag-refuses-to-defend-texas-ban-on-using-legislative-footage-in-political-ads/