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Houston Mayor Wants Opponent Prosecuted Under Constitutionally Questionable Law

Posted by Ed McClees | Oct 18, 2019

It is election season, and the mud slinging is in full form.  Houston Mayor Sylvester Turner has come under fire over the hiring of intern during a hiring freeze who was paid $95,000 per year.  One of the mayor's political opponents used this information in a political attack ad, which caused Mayor Turner to demand that this opponent be the subject of a criminal investigation.  Mayor Turner said that his opponent violated a new Texas law that went into effect on September 1, 2019, that outlaws the use of any "deep fake video" for political purposes within thirty days of an election. 

This new law that the Tuner campaign referenced is an amendment to Tex. Elec. Code Sec. 255.004, which now reads as follows:

Sec. 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.

(d) A person commits an offense if the person, with intent to injure a candidate or influence the result of an election:

(1) creates a deep fake video; and

(2) causes the deep fake video to be published or distributed within 30 days of an election.

(e) In this section, "deep fake video" means a video, created with the intent to deceive, that appears to depict a real person performing an action that did not occur in reality.

The problem with this law is that it will face significant and swift Constitutional challenges based on First Amendment grounds.  There is precedent from the United States Supreme Court to suggest that the conduct prohibited under the new Texas "deep fake" law is in fact protected by the First Amendment.  For example, in U.S. v. Alvarez, 567 U.S. 709, 727 (2012), the Court reversed a conviction under the Stolen Valor Act that outlawed false claims of military honors, saying that "[t]he remedy for false speech is speech that is true."  

The political ad that Mayor Turner wants investigated may not even meet the definition of "deep fake video" under the new law, but if charges are pursued under this statute, expect an aggressive First Amendment defense. 

About the Author

Ed McClees

Ed is a criminal trial lawyer who is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a former Harris County District Attorney where he served as chief of the Organized Crime Section, prosecuting cases involving complex organized criminal activities, including Fr...

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