Lost in the coverage of Michael Quinn Sullivan and Empower Texans’ historic win against the Texas Ethics Commission last week was one terrifying argument put forward by lawyers for the Commission. It’s an argument over the scope of the TEC’s power to regulate speech we predicted the Commission would make seven months ago.

During argument on the motion to dismiss Sullivan’s case pursuant to the Texas Citizens Participation Act, the Court observed that it had a hard time seeing how the conservative activist was not engaged in the “new media” business.

In response, Commission lawyers argued that, even if a media exemption to Texas’ lobby law applied, Sullivan had engaged in other “non-media” activities that required him to register with the state.

“If a member of the editorial board of the Wall Street Journal came to Texas and directly communicated with members of the legislature to influence legislation, they would have to register,” argued Gretchen Sween, a lawyer for the TEC.

But that’s the rub. To interpret the lobby statute as allowing the TEC to scrutinize journalists and dictate which of their behaviors would be considered “media activities” and “non-media activities” results in unconstitutional power for the state. Such a policy is a prior restraint that would force reporters to choose between living in fear of government abuse and checking with the TEC before starting any new venture.

Sullivan has been adamant since the beginning of the Texas Speech Fight; it’s not one he picked, but it is one he’s willing to finish on behalf of the rights of all Texans, big and small. That includes those in Texas’ traditional media.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.