September 28, 2009
The two parts are Sections 161.173 and 161.205.
The first describes the confidentiality provisions of the law, and the second creates penalties for a "frivolous complaint," which is defined as "groundless and brought for the purpose of harassment."
Carl Starr, a legal activist whose lawsuit seeking to open the court proceedings on the public corruption investigation led to the release of information, argues that the rules are vague to the point where they create a chilling effect on free speech and infringe upon due process.
In his lawsuit filed today (Sept. 28, 2009), Starr identifies himself as an activist who has filed two ethics complaints and "desires to files a ethics complaint but his 1st Amendment rights are chilled by the vague/unconstitutional ethics law." (sic)
He argues that the confidentiality provisions in 161.173 constitute prior restraint and the right to free speech and to petition government in the First and Fourteenth Amendments. He also argues that the confidentiality provisions are vague and overbroad, and cites as backup the 1990 11th Circuit case American Booksellers v. Webb. In that case, the court found it unconstitutional when lawmakers define the scope of a statute to encompass unprotected expression as well as, "at least potentially, protected speech."
In the case of 161.205, Starr argues that it creates a more stringent standard for speech than that available under civil courts -- in other words, he asserts, "It creates a new 'civil tort remedy statute' [beyond constitutional established tort remedy laws already in place for redress]."
It allows for a $4,000 penalty for claims found to be frivolous.
County Attorney Jose Rodriguez was not immediately available for comment on Starr's lawsuit.
The commission was created in late August, and took effect Sept. 1. Opinion on the commission during the lead-up, including the debate during the Texas Legislature in spring, was not unanimous.
For background on the commission, check the NPT Archives.