AUSTIN, Texas–Analysis continues of yesterday’s Texas Ethics Commission (“TEC”) hearing regarding a complaint filed against Breitbart contributor Michael Quinn Sullivan. The complaint alleged that Sullivan was required to register as a lobbyist for activities he conducted with his Empower Texans organization.
As recently reported by Breitbart Texas, a major part of the defense presented yesterday by Sullivan’s counsel, Joe Nixon, dealt with the “media exception” to the lobbying registration requirements. The key statute is Texas Government Code Section 305.004(1), which provides as follows:
Sec. 305.004. EXCEPTIONS. The following persons are not required to register under this chapter:
(1) a person who owns, publishes, or is employed by a newspaper, any other regularly published periodical, a radio station, a television station, a wire service, or any other bona fide news medium that in the ordinary course of business disseminates news, letters to the editors, editorial or other comment, or paid advertisements that directly or indirectly oppose or promote legislation or administrative action, if the person does not engage in further or other activities that require registration under this chapter and does not represent another person in connection with influencing legislation or administrative action…
Accordingly, one of the questions before the TEC is: does Empower Texas own or publish a “bona fide news medium that in the ordinary course of business disseminates news, letters to the editors, editorial or other comment” such that would satisfy the exception to registration provided by this statute?
Empower Texans operates a website at www.EmpowerTexans.com, as well as a Facebook page, Twitter account, and a free subscription email newsletter. The website’s top three subsections include “News,” “Who Represents Me,” where Texans can look up who their elected representatives are, and “Scorecard,” which contains the “fiscal responsibility index” scorecards of Texas elected officials. On the “About” page, the website declares its purpose as a source of “news and information:”
Empower Texans & Texans for Fiscal Responsibility is pleased to provide Texans with news and information about the issues facing the Lone Star State. Texans must be informed about policy solutions consistent with the principles of individual liberty and free markets.
Empower Texans’ email newsletter contains a mix of commentary from Sullivan, reporting on political and legislative matters from around Texas, and other newsworthy items. As an example, the Empower Texans newsletter emailed on Thursday included Sullivan’s commentary and analysis of Wednesday’s hearing. The newsletter also included links to other articles on the Empower Texans website, including one analyzing whether Texas school districts were in compliance with HB 462’s prohibition on the use of “Common Core” educational standards, as well as update on a funding request from the Texas Department of Transportation for expansion of urban passenger rail trains.
At issue before the TEC is the content produced by Empower Texans in 2011 and 2012, but that was not significantly different than the current content.
As Mark Lisheron, a thirty year veteran journalist and expert witness for Sullivan, testified yesterday, the content provided by Empower Texans is substantively similar to that produced by media outlets around Texas. Lisheron specifically cited as examples online “new media” websites like Breitbart Texas, the Quorum Report, the Texas Tribune, and Texas Monthly, noting that these websites publish both news articles and commentary on comparable if not identical topics as Empower Texans. Both the Tribune and Texas Monthly also produce legislative rankings lists.
Based on his familiarity with Empower Texans’ website and review of these other online media outlets, Lisheron was, as he put it, “emphatic” that Empower Texans was indeed a “bona fide news medium.” Counsel for the TEC offered no witnesses or other evidence to counter LIsheron’s testimony or related to the issue of defining the scope of Section 305.004’s media exception in anyway.
The debate over who exactly is a “journalist” has gained increasing national attention recently. Last fall the Senate Judiciary Committee considered a bill that would grant the power to the Department of Justice to determine–for purposes of whether the journalist would be allowed to legally protect their sources–whether someone had the “primary intent” to “distribute news,” which would be protected, or whether their motivations were political, which would not be covered. Many independent bloggers and citizen journalists would likely find that requirement hard to satisfy. Texas Senator Ted Cruz voiced strong opposition to the bill, stating:
It strikes me that we are on dangerous territory if we are drawing distinctions that are treating some engaged in the process of reporting and journalism better than others. If we are advantaging those who happen to receive a paycheck from a corporate media entity over those who happen to be citizens….I for one would have deep troubles with legislation from Congress saying ‘we will grant special privileges if you happen to work for a corporate media interest’….It seems to me the First Amendment protects the activity, not the employment status of the person engaging in it.
This specific bill does not currently seem to have the support needed for passage, but the issue of who is a journalist and who is not keeps coming up at both in Congress and state legislatures around the country. If the Texas Ethics Commission refuses to accept Empower Texans’ activities as those of a media outlet, what are the implications for other news media and bloggers in Texas, and around the country?
Breitbart Texas contacted Texas Monthly Senior Editor Erica Grieder for her take on the issue. Grieder had no hesitation that Texas Monthly’s “Best and Worst Legislators List,” to which she contributed last year, was not a “lobbying” activity. She pointed out their status as a media organization, citing as an example the issuance of media credentials to Texas Monthly reporters by the Texas House. Grieder also pointed out that their list was “about process values, rather than outcomes, votes, or ideology,” sometimes assigning vastly different ratings to legislators who had very similar voting records by incorporating into their analysis how the legislators “ran their committees, engaged with their colleagues, and treated their witnesses.” Grieder also noted that their list was published after the session ends.
Similar to Congress’ debate on who is a journalist, observers have noted some conflict here between a media outlet like Texas Monthly, which also publishes a print edition every month and has been getting media credentials for their reporters for years, and independent blogs and other outlets that have a shorter track record and fall more under the definition of “new media.” Interestingly, Grieder, who has criticized Sullivan in the past, tweeted this supportive comment yesterday afternoon during the hearing:
For real though: as critical as I am of @MQSullivan this hearing sounds like a kangaroo court. #TXSummerBash
— EricaGrieder (@EricaGrieder) June 25, 2014
Many are watching the TEC and wondering if they will limit the definition of who is a journalist, and if they will seek to restrict that to only those who are already “in the club.” The reality of the situation, as pointed out by Sullivan yesterday, is that while Empower Texans has the resources to either pay the $750 lobbyist registration fee or hire attorneys to defend against a complaint, many other bloggers and citizen journalists do not have these options. “They picked on the wrong Texans,” said Sullivan yesterday, vowing to continue to fight the issue until their First Amendment rights had been properly recognized.
The Texas Ethics Commission is expected to issue a written opinion within the coming days or weeks. Breitbart Texas will continue to monitor this story.
Sarah Rumpf is a political and communications consultant living in Austin. You can follow her on Twitter at @rumpfshaker.
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