Earlier this week, I received a mailer from some outfit identifying itself as the "Texas Transgender Student Union" of Meadows Place, Texas. The mailer came addressed to the "students of the Morrissey family," which would be news to my wife and me, since we have lived by ourselves the entire time we have been in Texas. When I opened it, the mailer offered a full-color folded brochure on trans students rights, how to access subsidized medical care, and some other information that I barely registered before tossing it into the recycle bin.
I did think at the time that either someone had put a lot of money into transgender outreach, or that someone had put a lot of money into the election cycle. I laughed at the effort, but not everyone is as amused. Sarah Stogner had the same suspicion, the Texas Tribune reports today. Stogner serves as a district attorney in west Texas, and she has decided to open an investigation into the mailers as a potential forgery:
Sarah Stogner, district attorney for Loving, Reeves and Ward counties west of Odessa, told The Texas Tribune that her office is investigating the mailers as a potential forgery but said the scope could expand as new information comes in. Forgery is a state jail felony under Texas law.
Stogner said she felt the mailers — which were marketed as a resource guide for LGBTQ+ students from the Texas Transgender Student Union, a group recently formed in Wyoming — were an obvious bid to agitate voters ahead of the November midterm elections.
“If this ends up being legal, it is everything that is wrong with our current political climate,” Stogner said.
The origin of the mailers is currently unknown, Stogner said. The student union listed as the sender was formed as a limited liability company in Wyoming in September, records show. The group’s address on the mailer was listed as a Houston-area post office box.
The Tribune attempts to explain the logic behind the forgery suspicion:
The pamphlets make repeated references to the Transgender Education Network of Texas, sparking criticism that has included threats of violence, a lawyer for the organization said Thursday. TENT officials say the organization had nothing to do with the mailers and believe they were an attempt to influence the midterm elections and harm the group’s reputation. “These messages were deliberately distributed in a manner calculated to cause maximum harm to TENT and to create confusion and strife among the Texas electorate,” a TENT spokesperson said in an email.
Perhaps they were. That doesn't make them forgeries, at least not under Texas penal code 32.21. To commit forgery requires the intent to claim the identity or authority of another entity falsely, emphases mine:
(1) “Forge” means:
(A) to alter, make, complete, execute, or authenticate any writing so that it purports:
(i) to be the act of another who did not authorize that act;
(ii) to have been executed at a time or place or in a numbered sequence other than was in fact the case; or
(iii) to be a copy of an original when no such original existed;
(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A); or
(C) to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B).
Had the mailer purported to be from TENT, that might have constituted a forgery. Had there been an extant organization called the "Texas Transgender Student Union," this mailer might have been considered a forgery. However, neither appears to be the case. Rather, it looks like someone put some money into Merry Pranksterism in Texas by forming an LLC for the "Texas Transgender Student Union" and sending out a mailer that references TENT.
TENT's attorney accuses the mailer group of hijacking the look and feel of TENT mailers while misrepresenting their positions:
Mimi Marziani, one of TENT’s lawyers, said the pamphlet adopted the “look and feel” of TENT’s real materials but mixed resources with information the group does not support — including information about the legal process for minors to be recognized as an adult.
That may be a cause for a civil action, not a criminal charge for forgery. Even the prospects for civil relief would be rather bleak. "Look and feel" does not normally get copyright or trademark protection, and the dispute over misrepresenting TENT's positions would be a political matter, not normally subject to a defamation claim.
Stogner and Republican state representative Jeff Leach want Ken Paxton to investigate this as well, claiming that the LLC may be a front for some other group. Even if that were true, what crime would have been committed? People form LLCs all the time in Texas as well as Wyoming to organize businesses and political campaigns. It would have been more ethical for this group to speak out more directly about their political position, but that's a political assessment rather than an indication of a crime or even an actionable civil claim. The money spent on those mailers might have been more effective had it been spent directly on the political aims of the group, but it's not my money so that's not my call. We don't need government to arbitrate political speech, even stupid political speech.
Contra Stogner, this is free speech, and it's not "everything that's wrong" in today's political environment. The impulse to have government regulate political speech comes a lot closer to that problem. If Stogner doesn't like the mailer, she should do what I did with it – toss it into the trash and ignore it. Problem solved.