In the Court of Criminal 

Appeals of Texas

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No. PD-0310-23

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EX PARTE JOHN MORGAN STAFFORD, Appellant

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On State’s Petition for Discretionary Review

From the Fifth Court of Appeals

Collin County

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YEARY, J., filed a dissenting opinion.

The Court has an obligation, when confronted with a claim that a 

statute is unconstitutional on its face, to construe that statute in such a 

way as to avoid the unconstitutionality so long as the statutory text can

reasonably bear such a construction. Ex parte Perry, 483 S.W.3d 884, 

903 (Tex. Crim. App. 2016). But today the Court’s opinion seems to 

construe the statute in such a way as to ensure its unconstitutionality, 

concluding that it reaches conduct that it plainly does not, or which it 
STAFFORD – 2

could readily at least be read not to reach, and then finding the scope of 

the statute, as thus construed, to be too unfettered to satisfy strict 

scrutiny. See Majority Opinion at 17 (claiming that the statute 

“criminalizes anonymous, unsigned, and factually accurate political 

communications”). Along the way, the Court’s opinion completely skips 

the first step of a proper First Amendment free speech analysis when it 

fails—again, presumably as a product of its unnecessarily broad 

construction of the statute—to ask whether the target of the statute 

should even be regarded as protected speech in the first place. For these 

reasons and more, I must respectfully dissent.

I. THE STATUTE

Subsections 255.004(b) and (c) of the Texas Election Code make it 

a Class A misdemeanor if a “person . . .[,] with intent to injure a 

candidate or influence the result of an election, . . . knowingly represents

in a campaign communication that the communication emanates from a 

source other than its true source.” TEX. ELECTION CODE §§ 255.004(b), 

(c). “Campaign communication” is defined as “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.” 

TEX. ELECTION CODE § 251.001(17). Nowhere in the statutory scheme is 

there to be found a definition of the phrase “a source other than its true 

source.” That being the case, the Court has wide latitude, and indeed an 

obligation, to give Section 255.004(b) a narrowing construction—should 

that even prove necessary to preserve its constitutional integrity.

The State argues that all the statute does is prohibit a person 

from knowingly making a false attribution within a campaign 
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communication as to the source of that communication when that false 

attribution is specifically intended to injure a candidate or influence the 

result of an election. I agree. It simply does not, as the Court insists, 

make anonymous campaign communications a crime.1

Moreover, the Court could easily have understood the phrase “a 

source other than its true source” to refer to an actual person or entity

(as it plainly does), and not to include a fictitious one. To the extent that 

the Court might have thought that the phrase “a source other than its 

true source,” even as so construed, makes satirical portrayals of actual 

persons or entities a crime, such portrayals are only illegal under the 

statute if they are made “in” a campaign communication itself—not, for 

instance, in the pages of “The Onion.” Similarly, no reasonable 

prosecutor would think a Saturday Night Live spoof would constitute a 

“campaign communication,” even under the broad definition of Section 

1 Nothing in Section 255.004(b) makes it an offense to fail to attribute 

any source at all within a campaign communication. That the Court today 

insists that it does is bemusing. If the statute did proscribe anonymous 

campaign communications, then it may well have some unconstitutional

applications—at least to that extent—under McIntyre v. Ohio Elections 

Commission, 514 U.S. 334 (1995). That is because the Supreme Court has said 

that, “[u]nder our Constitution, anonymous pamphleteering is not a 

pernicious, fraudulent practice, but an honorable tradition of advocacy and of 

dissent.” Id. at 357. The statute at issue in McIntyre, however, is very, very 

different from the one at issue in this case. The one at issue in McIntyre plainly 

and expressly required that the source of a campaign communication identify 

himself. Id. at 338 n.3 (quoting OHIO REV. CODE ANN. § 3599.09(A)). There is 

no comparable requirement anywhere in the text of Section 255.004(b). At the 

same time, in McIntyre, the Supreme Court expressly acknowledged that “[t]he 

State may . . . punish fraud directly.” Id. (emphasis added). That is precisely 

and purely what Section 255.004(b) does by criminalizing fraudulent 

misattribution of the source of a campaign communication—as long as it is not 

misconstrued to proscribe anonymous campaign communications as well, as 

the Court does today. 
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251.001(17). And, even if a misattribution in the form of a satirical 

portrayal were to appear “in” a campaign communication itself, in order 

to be an offense, it would have to have been perpetrated with the 

requisite intent.

Finally, to the extent that the Court frets about the lack of an 

explicit exception “for social media reposts[,]” Majority Opinion at 17, 

once again, the statute could have been understood to only be directed 

at the “person” who originated the “campaign communication,” along 

with its false attribution—not those who may later have reposted it with 

no knowledge of the original misattribution. After all, the language of 

“source other than its true source” first appeared in the statutory 

scheme in 1975, well before the advent of social media. Acts 1975, 64th 

Leg., ch. 711, § 12, p. 2269, eff. September 7, 1975. If the Court simply

construed the statute in this reasonable and plausibly narrow fashion, 

it could not then have concluded that the Legislature failed to 

adequately tailor its proscription to the specific evil it apparently 

intended to address.

Indeed, the Court’s overbroad reading of the statute causes it to 

misidentify the specific evil the statute manifestly targets and to 

conclude that the statute is therefore too radically off-the-rack to 

withstand constitutional scrutiny. As construed by the Court today, 

Section 255.004(b) “is not directed at dishonest conduct and, in fact, 

criminalizes truthful political messages.” Majority Opinion at 17. 

Hardly! 

The statute does not criminalize the message contained in a 

campaign communication beyond the dishonest attribution made 
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therein to “a source other than the true source.” It is, then, in short, a 

statute that is designed to do nothing more than to prohibit a specific 

kind of fraud.2 It is otherwise completely agnostic with respect to the 

truthfulness of the campaign communication’s content. 

Misattribution of the actual source of that communication may be 

harmful to a candidate or political cause regardless of the veracity of its 

content. The statute is aimed at anyone who misrepresents the source of 

the message the campaign communication contains—whether that 

message be true, false, arguable, or indifferent—to the extent that the 

misrepresentation is intended to fool potential voters who would

evaluate the force of the message, at least in part, according to who 

seems to be propagating it. That is the specific form of fraud the Court 

should be focusing on in gauging the constitutionality of this law.

II. IS THIS SPEECH EVEN PROTECTED?

And with that in mind, the Court should be further asking itself 

whether the “speech” that Section 255.004(b) targets is even “protected”

at all according to United States Supreme Court precedents. Certain 

types of “speech” are subject to governmental regulation 

2 In McIntyre, the Supreme Court recognized the constitutional validity 

of election code provisions that are aimed at fraud, and even cited by way of 

contrast to an Ohio statute making it an offense, as does our Election Code 

Section 255.004(b), to “[f]alsely identify the source of a statement[.]” 514 U.S. 

at 349−50 n.12 (quoting OHIO REV. CODE ANN. §§ 3599.09.1(B)(8), 

3599.09.2(B)(1)). While denouncing Ohio’s separate statutory prohibition of

anonymous political speech, the Supreme Court in McIntyre made quite 

evident its attitude that Ohio’s statutes that directly address fraudulent 

political speech—as does Section 255.004(b), at least properly construed—

would almost certainly pass any level of First Amendment scrutiny. Only by 

inappropriately glomming anonymous speech onto Section 255.004(b)’s 

prohibition against false attribution does the Court today render it 

constitutionally suspect.
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notwithstanding ordinary limits imposed by the First Amendment. 

“Obscenity,” “child pornography,” “defamation,” “speech integral to 

criminal conduct”—all fall within this category of speech that is 

unprotected. United States v. Stevens, 559 U.S. 460, 468−69 (2010); 

United States v. Alvarez, 567 U.S. 709, 717 (2012). Among those 

categories of unprotected speech is also “fraud.” Stevens, 559 U.S. at 468; 

Alvarez, 567 U.S. at 717.3

It is at least arguable that misattributing a political message to a 

false source is just the sort of “fraud” that the First Amendment simply 

does not insulate from governmental regulation—and that would be all 

she wrote.4 There would then be no need to resort to any other mode of 

3 Fraud is defined as “[a] knowing misrepresentation or knowing 

concealment of a material fact made to induce another to act to his or her 

detriment.” BLACK’S LAW DICTIONARY (10th ed. 2019) at 802. In Alvarez, the 

Supreme Court observed:

Where false claims are made to effect a fraud or secure moneys 

or other valuable considerations, say offers of employment, it is 

well established that the Government may restrict speech 

without affronting the First Amendment. See, e.g., Virginia Bd. 

of Pharmacy [v. Virginia Citizens Consumer Council, Inc.], 425 

U.S. [748], at 771 (noting that fraudulent speech generally falls 

outside the protections of the First Amendment).

567 U.S. at 723.

4 It is true that even speech that is categorically subject to governmental 

regulation, such as fraud, may still not be regulated selectively, depending 

upon a viewpoint unrelated to that speech. See R.A.V. v. City of St. Paul, 505 

U.S. 377, 383−84 (1992) (“[T]hese areas of speech can, consistently with the 

First Amendment, be regulated because of their constitutionally proscribable 

content (obscenity, defamation, etc.)—[but that does] not [mean] that they are 

categories of speech entirely invisible to the Constitution, so that they may be 

made the vehicles for content discrimination unrelated to their distinctively 
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analysis, including “strict” or “exacting” scrutiny, before declaring

Section 255.004(b) to be constitutionally sound. And, because Appellant 

has not invoked the so-called overbreadth doctrine, there is also no need 

to inquire whether the statute exceeds the scope of an otherwise 

permissible regulation. See Majority Opinion at 4 n.1 (“The instant case 

is a traditional facial challenge, not an overbreadth challenge.”).5

III. STRICT SCRUTINY

If the fraudulent speech that Section 255.004(b) prohibits is not, 

for whatever reason, deemed to be unprotected speech, and thus

categorically subject to governmental regulation, then even so, the 

statute in my view passes “exacting,” or even “strict” scrutiny—at least 

as properly construed.6 The Court acknowledges that the State has a 

proscribable content.”). Section 255.004(b) does not present an instance of such 

unrelated content discrimination—it does not take sides. It proscribes 

fraudulent source attribution without reference to the speaker’s party 

affiliation or the nature of, or viewpoint expressed by, the message he conveys.

5 Presiding Judge Keller joins the Court’s opinion today, but the 

approach she takes in her separate concurring opinion sounds to me like an 

overbreadth analysis. Because the majority opinion today does not purport to 

resolve the case on overbreadth grounds, however, I will say no more about 

that here.

I do note, however, that in concluding that Section 255.004(b) is not 

sufficiently tailored to satisfy strict scrutiny, the Court takes a divide-andconquer approach to construing it. Majority Opinion at 10−13. It analyzes each 

part of the statute in isolation, identifying each independent clause’s possible 

scope, instead of reading those provisions together and in context, in an 

attempt to reach a construction of the statute as a whole that precisely serves 

its evident anti-fraud purpose. The Court should more appropriately only 

consider each clause’s scope as limited by the other clauses in the statute. 

6 In McIntyre, the Supreme Court held that, “[w]hen a law burdens core 

political speech, we apply ‘exacting scrutiny,’ and we uphold the restriction 
STAFFORD – 8

compelling interest “in preventing certain dishonest conduct that is 

harmful to the democratic process.” Majority Opinion at 8, 10. Indeed, 

“[a] State indisputably has a compelling interest in preserving the 

integrity of its election process.” Eu v. San Francisco County Democratic 

Central Committee, 489 U.S. 214, 231 (1989); see also Burson v. 

Freeman, 504 U.S. 191, 199 (1992) (observing that the State’s interest 

“in an election conducted with integrity and reliability” is “obviously . . . 

compelling”); Doe v. State, 112 S.W.3d 532, 535 (Tex. Crim. App. 2003) 

(“It has been consistently recognized that there must be substantial 

regulation of elections if they are to be fair, honest, and orderly.”).

The fatal defect in the statute, the Court believes, is that it fails 

the second prong of the strict scrutiny analysis: it does not employ “the 

least restrictive means” in attacking that dishonest conduct. See 

Majority Opinion at 8 (“Although the State has a compelling interest in 

fair and honest elections and preventing fraud on the electorate, the 

statute is not narrowly tailored to achieve that goal.”). But the Court is 

only if it is narrowly tailored to serve an overriding state interest.” 514 U.S. at 

347. The Court today applies so-called “strict scrutiny” instead. Majority 

Opinion at 6. For its part, the court of appeals in this case applied a “strict 

scrutiny” standard while at the same time noting that “exacting scrutiny” has 

had “varying and inconsistent applications” over the years. Ex parte Stafford, 

667 S.W.3d 517, 224 n.2 (Tex. App.—Dallas 2023). The court of appeals found 

it unnecessary to resolve the inconsistency it detected because “application of 

the exacting scrutiny would not alter our conclusion that the statute is not 

narrowly tailored.” Id. The difference may be, the court of appeals thought,

that strict scrutiny, unlike exacting scrutiny, seems to involve the so-called 

“least restrictive means” standard in determining whether a statute employs 

a sufficient degree of narrow tailoring. Id. The Court today does not address

this distinction. Because I agree with the court of appeals that it ultimately

does not matter to the bottom-line which standard is used, however, I will not 

“parse the differences” either. See Stafford, 667 S.W.3d at 224 n.2. (quoting

McCutcheon v. FEC, 572 U.S. 185, 199 (2014)).
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only able to conclude that the statute fails to employ the least restrictive 

means because it 1) misconstrues the scope of the statute, and 2) focuses

on the content of the underlying message itself rather than on the 

fraudulent attribution of source. I will address these mistakes in turn.

A. Misconstruing the Scope of the Statute

The Court construes the statute to reach anonymous campaign 

communications as well as “imitation, impersonation, sarcasm, parody, 

surrogacy, or pen names[.]” E.g., Majority Opinion at 17.7 Because this 

reading of the statute means that many more campaign communications 

will be banned than if the statute were read to simply prohibit (as I think 

it does) only false attributions of source, and nothing more, the Court 

deems it insufficiently narrow. The Court insists that the State’s 

construction of the statute (with which I agree) “is not accurate.” 

Majority Opinion at 16. But what is “not accurate”—indeed, what is 

inexplicably inaccurate—is the Court’s own understanding of the 

statute. On its face, Section 255.004(b) simply makes it an offense to 

positively misidentify the source of a campaign communication—to 

positively “represent[] in” the campaign communication itself that it 

emanates from “a[n actual and real] source other than its true source.”

7 It seems to me that it is the Court itself that makes the statute 

susceptible to targeting these forms of speech by affirmatively misconstruing 

it, not the statute itself. To be sure, these forms of speech are no more 

fraudulent than the Supreme Court found anonymous speech to be in 

McIntyre. See 514 U.S. at 357 (“[A]nonymous pamphleteering is not a . . . 

fraudulent practice[.]”). But an interpretation of Section 255.004(b) that does 

not reach these forms of speech, and only targets the specific act of positively 

misattributing the source of a campaign communication with the requisite 

intent (that is to say, fraudulently), is more than plausible and would serve to 

preserve the constitutionality of the statute.
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Here is what the Court should say about Section 255.004(b) if it 

were concerned (as it should be) with construing it correctly, and with 

an eye towards preserving its constitutionality: 

Anonymity: The Court could explain that simply 

failing to identify any source whatsoever of a campaign 

communication does not amount to positively representing 

a false source, as the statute plainly (and plainly only) 

proscribes. It does not violate the First Amendment, under 

McIntyre v. Ohio Election Commission, 514 U.S. 334 

(1995), on that account.

Pen Names: The Court could also acknowledge that 

a too-literal focus on the terms in the statute might lead 

some to misconstrue its terms to include even the use of a 

pen name employed to shield the “true identity” of the 

source. But if we are to construe Section 255.004(b) with a 

mind to preserving its constitutionality rather than (as the 

Court seems to do) to undermine it, then we could easily 

understand the phrase “a source other than its true source” 

more narrowly than the Court does, in keeping with the 

reasonably evident (and not unconstitutional) meaning of 

the statute, to refer only to a false attribution to an actually 

existing person or entity, and not to an obviously fictitious 

pseudonym.

Parodies: And the Court could explain that any 

satirical representation that pretends to be a “source” other 

than the satirist himself, before it may be deemed criminal 

under Section 255.004(b), must occur within the confines of 

a campaign communication itself, and must, moreover, be 

perpetrated with the requisite fraudulent intent, as 

opposed to one merely included for comic effect, ridicule, or 

mockery.8

8 “Parody” means “[a] literary or artistic work that broadly mimics an 

author’s characteristic style and holds it up to ridicule.” THE AMERICAN 

HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 954 (1975).
STAFFORD – 11

An interpretation of the statute that thus confines its reach within the 

confines of our Constitution would serve to suppress far fewer campaign 

communications than the Court’s wildly overbroad construction, and it 

should not be deemed violative of the First Amendment because it is 

insufficiently restrictive when an appropriately restrictive construction 

is readily available.

B. Focusing on the Underlying Speech Instead of the Fraud

Time after time, the Court’s opinion claims that Section 

255.004(b) “criminalizes truthful political messages.” E.g., Majority 

Opinion at 16.9 It is certainly true to say, I think, that a campaign 

communication that carries a fraudulent attribution of source is

criminalized, even though its underlying political message may be true. 

It is not criminalized because of the incorporated political message

(whether true or not), however, but because of the fraudulent 

attribution. Section 255.004(b) is unconcerned with the veracity of the 

political message itself. In that sense, at least, it is content-neutral: It 

criminalizes the fraud regardless of the truth of the attendant political 

message.

The fraud it seeks to suppress comes from the fact that the actor 

would have the electorate believe that a political opponent, or other 

recognizable public figure or association, advocates for the incorporated 

political message when that is not the case. Properly construed, the 

9 See also Majority Opinion at 14 (claiming that Section 255.004(b) 

“criminalizes protected anonymous and truthful political speech”); id. at 17 (“It 

criminalizes anonymous, unsigned, and factually accurate political 

communications.”) (all emphases added).
STAFFORD – 12

statute will only suppress the accompanying political message—true, 

false, arguable, or indifferent—when the campaign communication 

containing that political message falsely attributes it to another actual

source, with the specific intent to misinform the electorate. It makes no 

sense for the Court to focus on the truthfulness of the attendant political 

message as part of what makes Section 255.004(b) insufficiently 

narrowly tailored while refusing to acknowledge the obvious and 

legitimate anti-fraud purpose of the prohibition against the false 

attribution of the source.

C. Least Restrictive Means

In McIntyre, while concluding that Ohio could not constitutionally 

restrict anonymous political speech in the name of protecting the 

electorate from fraud, the Supreme Court contrasted Ohio statutes that 

were not challenged in that case and that were more specifically aimed 

at prohibiting fraudulent political speech. 514 U.S. at 349−50 & n.12. 

Those statutes made it an offense, during the course of political 

campaigns, to “[f]alsely identify the source of a statement[.]” Id.

Although the Supreme Court refrained from directly evaluating the 

First Amendment acceptability of those statutes, id., its clear 

implication was that such straightforward anti-fraud provisions, such 

as the statute at issue here, are constitutionally sound because they are

appropriately tied to Ohio’s compelling interest in avoiding fraudulent 

political speech. 

Section 255.004(b) may not be quite as succinct or direct in its 

prohibition against fraudulent misattribution of the source of a 

campaign communication as the language in the Ohio misattribution-
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of-source statutes.10 But it is readily susceptible to a statutory 

construction (eminently more natural than the one applied by the Court 

today) that limits it to the same narrow range of conduct as is found in 

those statutes. And as so construed, it is hard to imagine how Section 

255.004(b) could more restrictively serve the Legislature’s compelling 

anti-fraud interest.

IV. THE COURT INSULATES ITSELF FROM REVIEW

AND PUTS OUR STATE AT RISK

The way I see it, the Court has taken what otherwise was a 

perfectly constitutional statute and, on its own strength, construed the 

statute so broadly as to implicate serious First Amendment questions. 

10 The Court deems Section 255.004(b) insufficiently narrow, in part, 

because it perceives another statute, Section 255.005(a), to more efficaciously

accomplish the same end. Majority Opinion at 13−14 (quoting TEX. ELECTION 

CODE § 255.005(a)). But I agree with the State, once again, that these distinct 

provisions target somewhat different “dirty tricks”: The former (Sec. 

255.004(b)) makes it an offense to fraudulently misattribute the source of the 

campaign communication while the latter (Sec. 255.005(a)) makes it an offense 

for the speaker to misidentify himself in that communication (while not 

necessarily misidentifying the source of the communication itself), with 

fraudulent intent. Suppose Section 255.005(a) had been challenged as 

unconstitutionally broad in a case that had come to us before this one. Would 

the Court have held that it was in fact unconstitutional because of the 

existence of Section 255.004(b)? There could potentially be occasions where a 

particular speaker violates both provisions at once, but that does not 

necessarily make one provision wholly redundant or overbroad. Indeed, it is 

not unusual to find overlapping provisions in statutes proscribing fraudulent 

conduct. Clinton v. State, 354 S.W.3d 795, 802 (Tex. Crim. App. 2011). The

Ohio statutes cited approvingly in McIntyre likewise make it an offense both

to “[f]alsely identify the source of a statement,” and to “issue statements under 

the name of another person without authorization[.]” 514 U.S. at 349 n.12 

(quoting OHIO REV. CODE ANN. §§ 3599.09.1(B)(8), 3599.09.2(B)(1)). There was 

no suggestion in McIntyre that either of these provisions was constitutionally 

suspect because of the co-existence of the other.
STAFFORD – 14

In assessing the First Amendment validity of a state statute, however, 

the United States Supreme Court will ordinarily deem itself bound by 

the authoritative construction of a statute from that state’s highest 

court. E.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 381 (1992). It will 

evaluate the constitutional validity of such a statute under the 

assumption that it means no more and no less than what the state’s high 

court says it means. This means that, in the view of the Supreme Court, 

the statute has the meaning that we assign to it, and none other. 

Today, however, the Court unnecessarily construes Election Code 

Section 255.004(b) so expansively that the Supreme Court would almost

have to agree it is unconstitutional. Unfortunately, under the Court’s 

overly broad construction, it is much less likely that the Supreme Court 

would grant any petition by the State of Texas seeking review of this 

Court’s determination of Section 255.004(b)’s First Amendment validity.

The Court applies its overly broad understanding of the statute even

though a narrower (and likely constitutional) understanding is readily 

available—the one I have here proposed—and in doing so it also seems 

to immunize itself from higher court scrutiny. And that is why the 

Court’s decision is so objectionable to me. 

The power to determine the constitutionality of our statutes is 

big. It is the power to check an overreaching government’s exercise of 

authority that has not been granted by the sovereign people of our State. 

But that power wielded uncarefully can also cause a lot of damage. The

Court’s decision in this case, with its expansive and overly broad 

construction of this law (and decision to strike it down), could cause a 

lot of damage. And because it is accomplished by over-construing the 
STAFFORD – 15

reach and meaning of this statute at the state high-court level, it also 

has the potential effect of insulating the Court’s decision from further

review. Most concerning, however, is that, until the Legislature can 

meet to cure the problem, our State is now placed at risk from the very 

dangers and campaign “dirty tricks” that this otherwise perfectly good 

law sought to remedy. 

V. CONCLUSION

I would not declare the statute at issue here to be facially 

unconstitutional. I would instead conclude that the statute is not 

unconstitutional in violation of the First Amendment, and I would 

reverse the judgment of the court of appeals. I would then remand the 

case to that court for its resolution of Appellant’s remaining issues on 

appeal. Because the Court does not, I respectfully dissent.

FILED: September 4, 2024

PUBLISH