One of the most revealing free speech fights of the legislative session came not over protests or campaign finance, but over memes.
In the closing weeks of the session, the Texas House approved legislation that would have made the distribution of altered political media—memes, edited images, parody videos, or audio recordings—a criminal offense unless they carried a government-mandated disclaimer.
The legislation, House Bill 366, was authored by former Speaker Dade Phelan and passed the House on a 102-40 vote.
While pitched as a narrow response to artificial intelligence “deepfakes,” the proposal quickly drew criticism for its sweeping reach and its implications for political satire and grassroots speech.
Under the bill’s language, criminal liability would have applied not only to AI-generated content, but to any image, audio, or video that “did not occur in reality”—a definition broad enough to encompass basic Photoshop edits, cartoons, and parody memes. Violations would have carried a Class A misdemeanor penalty, punishable by up to a year in jail.
A committee substitute attempted to narrow the scope by limiting enforcement to candidates, officeholders, political committees, individuals who spend more than $100 on political advertising in a reporting period, or those paid to distribute such content. It also added an “intent to influence an election” requirement.
Critics were unconvinced.
Conservative lawmakers and First Amendment advocates warned the $100 threshold was vague and could easily ensnare grassroots activists who boosted posts, used paid design tools, or spent money on unrelated political advertising during the same reporting period. Others noted that virtually all campaign speech is intended to influence elections, rendering the intent requirement meaningless.
During a committee hearing, the Texas Ethics Commission further undercut assurances from Phelan that the bill would not apply to social media. TEC General Counsel James Tinley acknowledged that online political content could fall under the law—particularly if it resembled campaign advertising or included express advocacy.
The House debate reflected those concerns. State Rep. Shelley Luther, who was jailed in 2020 after defying COVID shutdown orders, questioned whether Texans could truly face a year behind bars for a cartoon.
“I personally have dealt with judges who take a personal vendetta against you and make you an example,” Luther said on the floor. “So I’m asking you, if someone creates a cartoon, can you go to jail for a year?”
Phelan did not dispute the penalty, saying the punishment needed to be severe to ensure compliance. “All you have to do is disclose it,” he said.
State Rep. Mitch Little warned that the bill’s expenditure language could capture people far outside professional campaigns, including grassroots activists whose spending had nothing to do with a specific meme.
Despite the objections, the House approved the bill and sent it to the Senate—where it quietly died.
The attacks on political memes didn’t end there, however.
Just last month, a real-world case in Hood County underscored the very concerns critics had raised. Local activist and Navy veteran Kolton Krottinger was arrested over a satirical social media post that appeared to impersonate another political activist supporting a school board candidate. According to his attorney, Krottinger was arrested for “posting a meme.”
The case sparked backlash from conservative activists and elected officials across Texas. “If Kolton, a veteran and patriot, can be arrested for a political meme, any of us could,” said State Board of Education member Brandon Hall, calling the situation an example of “lawfare.”
The case was quickly dismissed.
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