overbreadth doctrine in Texas

2024This follows the directive that “[a]pplication of the overbreadth doctrine is ‘manifestly strong medicine’ to be employed ‘sparingly and only as a last resort.’” Id. (citing Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)).

2022Application of the overbreadth doctrine is “manifestly strong medicine” to be employed “sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973); Thompson, 442 S.W.3d at 349 .

2022The Court takes this gratuitous and socially costly step despite its own admonishment that the overbreadth doctrine is a “‘strong medicine’ to be employed with hesitation and only as a last resort[.]” Thompson, 442 S.W.3d at 349 (quoting New York v. Ferber, 458 U.S. 747, 769 (1982)).

2020“The overbreadth doctrine is ‘strong medicine’ to be employed with hesitation and only as a last resort.” Ex parte Thompson, 442 S.W.3d at 349 (quoting New York v. Ferber, 458 U.S. 747, 769 (1982)).

2026In this singular context, “the question is whether ‘a substantial number of [the law’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’” Id. (quoting Ams. for Prosperity Found. v. Bonta, 594 U.S. 595, 615 (2021)); see also Ashcroft v. Free Speech Coal., 535 U.S. 234, 255 (2002) (“The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.”).

2023The overbreadth doctrine prohibits the government from “banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 , 122 S. Ct. 1389 , 152 L.

2024An overbreadth complaint is thus “a second type of facial challenge.” United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State Grange v. Washington State Republican Party, 552 U.S. 442 , 449 n.6 (2008)); accord Americans for Prosperity Found. v. Bonta, 594 U.S. 595, 615 (2021); see also 4 Virginia v. Hicks, 539 U.S. 113, 119 (2003) (“The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges.”).3 First Amendment as-applied challenge based on free speech Diez states his as-applied challenge this way: “The ques

2021But the First Amendment’s overbreadth doctrine allows a court to declare a law unconstitutional on its face “even if it may have some legitimate application and even if the parties before the court were not engaged in activity protected by the First Amendment.” Id. at 864–65 (first citing United States v. Stevens, 559 U.S. 460, 473 , 130 S. Ct. 1577, 1587 (2010); and then Sabri v. United States, 541 U.S. 600 , 609–10, 124 S. Ct. 1941 , 1948–49 (2004)). 7 that Section 36.063 is a content-based restriction on speech, is subject to a strict- scrutiny analysis, forbids protected speech, and fails

2026See United States v. Williams, 553 U.S. 285, 303 (2008) (“The mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” (citation omitted)); United States v. Kaechele, 466 F. Supp. 2d 868, 896 (E.D.

2015JOHNSON — 7 relative to the statute’s plainly legitimate sweep.”16 The statute must prohibit a substantial amount of protected expression,17 and the danger that the statute will be unconstitutionally applied must be realistic18 and not based on “fanciful hypotheticals.”19 The person challenging the statute must demonstrate from its text and from actual fact “that a substantial number of instances exist in which the Law cannot be applied constitutionally.”20 The Supreme Court “generally do[es] not apply the ‘strong medicine’ of overbreadth analysis where the parties fail to describe the instanc

2023Courts apply the overbreadth doctrine only as a last resort; the danger that the statute will be unconstitutionally applied—and will chill future free speech—must be –16– realistic and not based on “fanciful hypotheticals.” State v. Johnson, 475 S.W.3d 860, 865 (Tex. Crim.

2022The overbreadth doctrine is “strong medicine” that is used “sparingly and only as a last resort.” State v. Johnson, 475 S.W.3d 860, 865 (Tex. Crim.

2024An overbreadth complaint is thus “a second type of facial challenge.” United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State Grange v. Washington State Republican Party, 552 U.S. 442 , 449 n.6 (2008)); accord Americans for Prosperity Found. v. Bonta, 594 U.S. 595, 615 (2021); see also 4 Virginia v. Hicks, 539 U.S. 113, 119 (2003) (“The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges.”).3 First Amendment as-applied challenge based on free speech Diez states his as-applied challenge this way: “The ques

2022A statute is facially invalid under the First Amendment’s overbreadth doctrine if it prohibits a “substantial” amount of protected speech “judged in relation to the statute’s plainly legitimate sweep.” Lo, 424 S.W.3d at 18 (quoting Virginia v. Hicks, 539 U.S. 113 , 118–19 (2003)).

2015In the First Amendment context, a facial challenge in the form of “the overbreadth doctrine enables litigants ‘to 19 challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.’” Hill, 530 U.S. at 731 -32 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)).7 But AusPro does not and cannot identify how the Act “applies to any conduct more likely to be protected by the First Amendmen

2015However, "[T]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to 26 render it susceptible to an overbreadth challenge." Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,800 (1984).

2025Civil Liberties Union, 521 U.S. 844, 864 , 871–74 (1997) (explaining vagueness can be part of a separate overbreadth challenge based on the First Amendment); Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489 , 494–95 & nn. 6, 7 (1982) (same); see also Holder v. Humanitarian Law Project, 561 U.S. 1, 20 (2010) (“Such a plaintiff may have a valid overbreadth claim under the First Amendment, but our precedents make clear that a Fifth Amendment vagueness challenge does not turn on whether a law applies to a substantial amount of protected expression.”). 6 scientific value.” TEX.

2018If it does not, then the overbreadth challenge must fail.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982).

2022To succeed in an overbreadth challenge, the person challenging the statute “must demonstrate from the text [of the law] and from actual fact that a substantial number of instances exist in which the Law cannot be applied constitutionally.” New York State Club Ass’n v. City of New York, 487 U.S. 1, 14 (1988); Perry, 483 S.W.3d at 902 .

2022There must be a “realistic” danger the statute will be unconstitutionally applied rather than based on “‘fanciful hypotheticals.’” Id. (citations omitted). “‘Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct that is necessarily associated with speech (such as picketing or demonstrating).’” Id. (quoting Virginia v. Hicks, 539 U.S. 113, 124 (2003)).

2019“The overbreadth doctrine is ‘strong medicine’ that should be employed ‘sparingly’ and ‘only as a last 5 resort.’” Id. (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). “[T]he overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id. (quoting Broadrick, 413 U.S. at 615 ).

2018“The overbreadth doctrine is ‘strong medicine’ that should be employed ‘sparingly’ and ‘only as a last resort.’” Id. (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). “[T]he overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id. (quoting Broadrick, 413 U.S. at 615 ).

2015See id. 109 See id. at 90-91 (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)); see also Board of Trustees v. Fox, 492 U.S. 469, 482-84 (1989) (observing that “the person invoking overbreadth may challenge a statute that infringes protected speech even if the statute constitutionally might be applied to him” and that the doctrine’s “principal advantage . . . for a litigant is that it enables him to benefit from the statute’s unlawful application to someone else.”) (internal citations and quotations omitted). 110 Morehead, 807 S.W.2d at 580 (quoting Coates v. Cincinnati, 402 U.S. 611, 61

2015See id. 109 See id. at 90-91 (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)); see also Board of Trustees v. Fox, 492 U.S. 469, 482-84 (1989) (observing that “the person invoking overbreadth may challenge a statute that infringes protected speech even if the statute constitutionally might be applied to him” and that the doctrine’s “principal advantage . . . for a litigant is that it enables him to benefit from the statute’s unlawful application to someone else.”) (internal citations and quotations omitted). 110 Morehead, 807 S.W.2d at 580 (quoting Coates v. Cincinnati, 402 U.S. 611, 61

2016When an appellant brings both over-breadth and vagueness facial constitutional challenges, we address the overbreadth challenge first, Duncantell v. State, 230 S.W.3d 835, 843 (Tex.App.—Houston [14th Dist.] 2007, pet. ref d).

2016See id. at 642 (citing Duncantell v. State, 230 S.W.3d 835, 843 (Tex.App.-Houston [14th Dist.] 2007, pet. ref'd)). 17 The overbreadth doctrine is “strong medicine” to be employed sparingly and only as a last resort.

2014See Comm’n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 435 (Tex.1998) (“An overbroad statute sweeps within its scope a wide range of both protected and non-protected expressive activity.” (citation and internal quotation marks omitted)); Ashcroft v. Free Speech Coal., 535 U.S. 234, 237 , 122 S.Ct. 1389 , 152 L.Ed.2d 403 (2002) (“The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process”).

2014See Comm’n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 435 (Tex. 1998) (“An overbroad statute sweeps within its scope a wide range of both protected and non-protected expressive activity.” (citation and internal quotation marks omitted)); Ashcroft v. Free Speech Coal., 535 U.S. 234, 237 (2002) (“The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.”).

2019But the First Amendment’s overbreadth doctrine allows a court to declare a law unconstitutional on its face “even if it may have some legitimate application and even if the parties before the court were not engaged in activity protected by the First Amendment.” Id. at 864–65 (citing United States v. Stevens, 559 U.S. 460, 473 , 130 S. Ct. 1577, 1587 (2010); and Sabri v. United States, 541 U.S. 600 , 609–10, 124 S. Ct. 1941 , 1948–49 (2004)). 13 describe the offensive behavior—“harass, annoy, alarm, abuse, torment, or embarrass.” Kramer, 712 F.2d at 176–78; Long, 931 S.W.2d at 297 ; May, 765 S.

2015See id. 109 See id. at 90-91 (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)); see also Board of Trustees v. Fox, 492 U.S. 469, 482-84 (1989) (observing that “the person invoking overbreadth may challenge a statute that infringes protected speech even if the statute constitutionally might be applied to him” and that the doctrine’s “principal advantage . . . for a litigant is that it enables him to benefit from the statute’s unlawful application to someone else.”) (internal citations and quotations omitted). 110 Morehead, 807 S.W.2d at 580 (quoting Coates v. Cincinnati, 402 U.S. 611, 61

2021The overbreadth doctrine is based on the principle that “a governmental purpose to control or prevent activities constitutionally subject to regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” Gholson v. State, 667 S.W.2d 168, 172 (Tex. App.—Houston [14th Dist.] 1983, pet. ref’d).

2001The overbreadth doctrine is based on the principle that “a governmental purpose to control or prevent activities constitutionally subject, to regulation may not be achieved by means which are unnecessarily broad and thereby invade the 'area of protected freedoms.” Gholson v. State, 667 S.W.2d 168, 172 (Tex.App. — Houston [14th Dist.] 1983, pet. ref'd).

2025In Ex parte Thompson, also decided after Lo, the Court questioned the need to conduct an overbreadth analysis but did so in an abundance of caution. 442 S.W.3d 325, 349 (Tex. Crim.

2024“The overbreadth doctrine is ‘strong medicine’ to be employed with hesitation and only as a last resort.” Ex parte Lee, 617 S.W.3d 154 , 163 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d) (quoting Thompson, 442 S.W.3d at 349 ).

2025This Court extensively addressed the nature of the overbreadth doctrine in State v. Johnson.18 Pointedly, if a statute violates the overbreadth doctrine, it is unconstitutional on its face.19 And the overbreadth doctrine is part of substantive First Amendment law.20 For these propositions, Johnson accurately cited Supreme Court precedent.21 A state court is not free to ignore the overbreadth doctrine, nor can it say that it is not always a federal constitutional doctrine.22 Even though 16 See Lo, 424 S.W.3d at 20 (referring to the written works of “Lolita,” “50 Shades of Grey,” “Lady Chatterly

2024Overbreadth Challenge In the remaining portion of his sole issue, Robinson argued that Texas Penal Code section 33.021(c) is unconstitutional because it is “void for overbreadth.” According to Robinson, the “speech restricted by section 33.021(c) falls into none of the Supreme Court’s historically recognized categories of unprotected speech.”6 A statute is facially invalid under the First Amendment’s overbreadth doctrine if it prohibits a “substantial” amount of protected speech “judged in relation to the statute’s plainly legitimate sweep.” See Ex parte Lo, 424 S.W.3d at 18 ; Ex parte Wheeler

2021But the First Amendment’s overbreadth doctrine allows a court to declare a law unconstitutional on its face “even if it may have some legitimate application and even if the parties before the court were not engaged in activity protected by the First Amendment.” Id. at 864–65 (first citing United States v. Stevens, 559 U.S. 460, 473 , 130 S. Ct. 1577, 1587 (2010); and then Sabri v. United States, 541 U.S. 600 , 609–10, 124 S. Ct. 1941 , 1948–49 (2004)). 7 that Section 36.063 is a content-based restriction on speech, is subject to a strict- scrutiny analysis, forbids protected speech, and fails

2021But the First Amendment’s overbreadth doctrine allows a court to declare a law unconstitutional on its face “even if it may have some legitimate application and even if the parties before the court were not engaged in activity protected by the First Amendment.” Id. at 864–65 (first citing United States v. Stevens, 559 U.S. 460, 473 , 130 S. Ct. 1577, 1587 (2010); and then Sabri v. United States, 541 U.S. 600 , 609–10, 124 S. Ct. 1941 , 1948–49 (2004)). 7 that Section 36.063 is a content-based restriction on speech, is subject to a strict- scrutiny analysis, forbids protected speech, and fails

2015See id. 109 See id. at 90-91 (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)); see also Board of Trustees v. Fox, 492 U.S. 469, 482-84 (1989) (observing that “the person invoking overbreadth may challenge a statute that infringes protected speech even if the statute constitutionally might be applied to him” and that the doctrine’s “principal advantage . . . for a litigant is that it enables him to benefit from the statute’s unlawful application to someone else.”) (internal citations and quotations omitted). 110 Morehead, 807 S.W.2d at 580 (quoting Coates v. Cincinnati, 402 U.S. 611, 61

2015See id. 109 See id. at 90-91 (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)); see also Board of Trustees v. Fox, 492 U.S. 469, 482-84 (1989) (observing that “the person invoking overbreadth may challenge a statute that infringes protected speech even if the statute constitutionally might be applied to him” and that the doctrine’s “principal advantage . . . for a litigant is that it enables him to benefit from the statute’s unlawful application to someone else.”) (internal citations and quotations omitted). 110 Morehead, 807 S.W.2d at 580 (quoting Coates v. Cincinnati, 402 U.S. 611, 61

2015In Provo City Corporation v. Willden, that Court observed, “the federal rules on standing . . . are not binding on state courts, and the article III constitutional restrictions and federalistic prudential considerations that have guided the evolution of federal court standing law are not necessarily relevant to the development of the standing rules that apply in Utah’s state courts.” 768 P.2d 455, 456 (Utah 1989).

2015In Provo City Corporation v. Willden, that Court observed, "the federal rules on standing ... are not binding on state courts, and the article III constitutional restrictions and federalistic prudential considerations that have guided the evolution of federal court standing law are not necessarily relevant to the development of the standing rules that apply in Utah's state courts." 768 P.2d 455, 456 (Utah 1989).

2015See id. 109 See id. at 90-91 (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)); see also Board of Trustees v. Fox, 492 U.S. 469, 482-84 (1989) (observing that “the person invoking overbreadth may challenge a statute that infringes protected speech even if the statute constitutionally might be applied to him” and that the doctrine’s “principal advantage . . . for a litigant is that it enables him to benefit from the statute’s unlawful application to someone else.”) (internal citations and quotations omitted). 110 Morehead, 807 S.W.2d at 580 (quoting Coates v. Cincinnati, 402 U.S. 611, 61

2015See id. 109 See id. at 90-91 (citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973)); see also Board of Trustees v. Fox, 492 U.S. 469, 482-84 (1989) (observing that “the person invoking overbreadth may challenge a statute that infringes protected speech even if the statute constitutionally might be applied to him” and that the doctrine’s “principal advantage . . . for a litigant is that it enables him to benefit from the statute’s unlawful application to someone else.”) (internal citations and quotations omitted). 110 Morehead, 807 S.W.2d at 580 (quoting Coates v. Cincinnati, 402 U.S. 611, 61

2015See id. at 32 (citing Garcia, 823 S.W.2d at 797 ); Manrique, 40 S.W.3d at 554 .

2001State v. Garcia, 823 S.W.2d 793, 796-97 (Tex.App.—San Antonio 1992, pet. ref'd). 4 Overbreadth The overbreadth doctrine has not been applied outside the limited context of First Amendment protected speech and the justification for its application applies weakly, if at all, in the ordinary commercial context.

2019But the First Amendment’s overbreadth doctrine allows a court to declare a law unconstitutional on its face “even if it may have some legitimate application and even if the parties before the court were not engaged in activity protected by the First Amendment.” Id. at 864–65 (citing United States v. Stevens, 559 U.S. 460, 473 , 130 S. Ct. 1577, 1587 (2010); and Sabri v. United States, 541 U.S. 600 , 609–10, 124 S. Ct. 1941 , 1948–49 (2004)). 13 describe the offensive behavior—“harass, annoy, alarm, abuse, torment, or embarrass.” Kramer, 712 F.2d at 176–78; Long, 931 S.W.2d at 297 ; May, 765 S.

2015App. 1996) (citing Grayned v. Rockford, 408 U.S. 104 , 108-09 (1972); Kramer v. Price, 712 F.2d 174, 176-77 (5th Cir. 1983). 117 Ellis, 309 S.W.3d at 80 .

2024An overbreadth complaint is thus “a second type of facial challenge.” United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State Grange v. Washington State Republican Party, 552 U.S. 442 , 449 n.6 (2008)); accord Americans for Prosperity Found. v. Bonta, 594 U.S. 595, 615 (2021); see also 4 Virginia v. Hicks, 539 U.S. 113, 119 (2003) (“The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges.”).3 First Amendment as-applied challenge based on free speech Diez states his as-applied challenge this way: “The ques

2022An overbreadth challenge may succeed “if a substantial number of [the statute’s] applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442 , 450 n.6 (2008).

2024In Perry, the court was confronted with an overbreadth challenge to the same “coercion of a public servant statute.” And, like here, the court in Perry had to ascertain the meaning of “threat” as used in the statutory definition of “coercion.”10 Id. at 904–05.

2022To succeed in an overbreadth challenge, the person challenging the statute “must demonstrate from the text [of the law] and from actual fact that a substantial number of instances exist in which the Law cannot be applied constitutionally.” New York State Club Ass’n v. City of New York, 487 U.S. 1, 14 (1988); Perry, 483 S.W.3d at 902 .

2020The overbreadth doctrine prohibits the government from ‘banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.’” Wagner v. State, 539 S.W.3d 298, 310 (Tex. Crim.

2019“Thus, the overbreadth doctrine prohibits the government from ‘banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.’” Wagner v. State, 539 S.W.3d 298, 310 (Tex. Crim.