Could the Red River Waterway Commission pay for media messages about the waterway's opportunities?

Plain-English summary

The Red River Waterway Commission asked whether it could spend public money on media presentations describing the commercial and recreational opportunities created by the waterway. The 2002 opinion said it could do so if the presentations were factual and aimed simply to inform. The request represented that the messages would not seek to manipulate public opinion, and the answer rested on that description.

The office distinguished a public agency's information function from public relations intended to sway the public. It said Louisiana's restriction on advertisements bought with public funds did not reach factual information without a motive to manipulate opinion. For public spending generally, the opinion also cited the need for a legal obligation, a public purpose, and a benefit proportionate to cost. The purpose of the spending and the official's intent mattered to the analysis.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the commission describe the waterway's business and recreation opportunities in public media?
Yes. The opinion approved factual presentations intended to tell the public about opportunities resulting from the waterway's establishment.

Did the opinion approve public money for a campaign to change public opinion?
No. It drew a distinction between factual public information and communications intended to manipulate public opinion. Its conclusion depended on the commission's statement that its presentations would simply inform.

Did the advertising restriction bar every paid public message?
The opinion said Louisiana R.S. 43:111.1 did not apply to dissemination of factual information without an intent to manipulate public opinion.

Background and statutory framework

The office identified Louisiana R.S. 34:2301 et seq. as the district's statutory authority and quoted R.S. 34:2308 on the waterway's public benefits. It drew on earlier AG opinions addressing public information, advertisements about capital improvements, and public-funds limits under Article VII, Section 14 of the Louisiana Constitution. The specific message content was described in the request, so the opinion did not evaluate an actual advertisement.

Citations and references

• R.S. 34:2308 (public benefits of the Red River Waterway District)
• Louisiana R.S. 43:111.1 (publicly funded advertisements, as discussed in the opinion)
• Louisiana Constitution Article VII, Section 14 (public-funds limitation, as discussed in the opinion)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/02-0129

Original opinion text

~..-~tate of ~oui~iana
DEPARTMENT OF JUSTICE
301 Mare 5treet .%LJlte
CIVIL DIVISION
P 0 Box

BATON ROUGE
TEL ~225, ~,42-~013
FAX ~225, 342-2090
RICHARD P. IEYOUB
70804-9005
ATTORNEY GENERAL

APR 2 5 2002
OPINION NUMBER 02-0129

1-A-1
Advertising
Gold, Weems, Bruser, Sues & Rundell 90-1-1 Pubhc Funds and Contracts
172-A
Water Districts
A Professional Law Corporation
2001 MacArthur Drive
The Red River Waterway Commiss=on may use public funds for
d=sseminatmg reformat=on about the econom=c, commercial and
P.O. Box 6118
recreat=onal opportunities of the waterway so long as the
Alexandria, LA 71307-6118
presentations are factual statements des=gned s=mply to inform,

Attention: Mr. Gregory B. Upton

Dear Mr. Upton:

You have requested an opinion of the Attorney General regarding the legality of the Red River Waterway Commission using public funds for disseminating information about the economic, commercial and recreational opportunities resulting from establishment of the Waterway.

In your correspondence with this office you state:

A key element in the development of the Red River Waterway System (the "Waterway") is the development of commerce and recreation on the Waterway. Numerous local ports have been, or are being, developed, and ... numerous recreational facilities.

The Commission desires to use the various avenues of the public media as a means of disseminating information about those opportunities available to the public in carrying out its essential governmental function.

Louisiana R.S. 34:2301 et seq. provides the statutory authority for the Red River Waterway District. R.S. 34:2308 states:

[T]he exercise of the powers granted hereby will be in all respects for the benefit of the people of the state, for the increase of their commerce and prosperity, and for the improvement of their health and living conditions ....

Page 2

Opinion No. 02-0129
Mr. Gregory B. Upton
Attorney at Law
Page: - 2-

Attorney General Opinion No. 90-126A states:

The use of public funds to provide a public information function to a state office is integral to its constitutional and/or statutory power and function, and is lawful if its intent is to be factually informative to the public.

This office recognizes the distinction between the valid governmental function of public information and the ultra vires activity of public relations. The prohibition of Louisiana R.S. 43:111.1 against advertisements paid for with public funds does not apply to the dissemination of factual information which does not have the intent to manipulate public opinion. Attorney General Opinions 93-78, 92-484 and 92-127.

The expenditure of public funds for fact-based information is not unlawful per se. It is the purpose for which the public funds are spent and the intent of the public official who makes the expenditure which control the legal character of the expenditure. Attorney General Opinion No. 92-127 and 90-126A. Citing the prohibition of Article VII, Section 14 of the Louisiana Constitution (1974) regarding unlawful expenditures of public funds, Attorney General Opinion No. 92-127 states:

The requirement of a legal obligation to expend funds is the threshold but not the only predicate for the constitutionality of the expenditure. The expenditure must also be for a public purpose and with a public benefit proportionate to the cost.

You have stated that the "public service presentations would be factual statements designed simply to inform. In no way would the presentations have as a motive the manipulation of public opinion."

As stated earlier, the Red River Waterway District is a statutorily created political subdivision of the State of Louisiana. Attorney General Opinion No. 90-386 states that there is no restriction in Louisiana law which would prohibit a political subdivision from advertising for the purpose of informing the public about capital improvements. Attorney General Opinion No. 94-528 continues the holding of Attorney General Opinion No. 94-386 stating that if the intent [of the advertising] is to be factually informative to the public, the use of public funds to increase public awareness of the existence and duties of an agency is lawful.

In conclusion, this office finds that the Red River Waterway Commission may use public funds for disseminating information about the economic, commercial and

Page 3

Opinion No. 02-0129
Mr. Gregory B. Upton
Attorney at Law
Page: - 3-

recreational opportunities resulting from establishment of the Waterway so long as the presentations are factual statements designed simply to inform.

Very truly yours,

RICHARD P. IEYOUB
ATTORNEY GENERAL

SUE MCNABB
Assistant Attorney General

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