First Amendment challenge in Texas

2024In the context of a First Amendment challenge, a statute is narrowly drawn if it “uses the least restrictive means of achieving the government interest.” See Ex parte Thompson, 442 S.W.3d 325, 344 (Tex. Crim.

2024In the context of a First Amendment challenge, a statute is narrowly drawn if it “uses the least restrictive means of achieving the government interest.” See Ex parte Thompson, 442 S.W.3d 325, 344 (Tex. Crim.

2005See e.g.,United States v. O'Brien , 391 U.S. 367, 385 , 88 S.Ct. 1673, 1683 , 20 L.Ed.2d 672 (1968) (finding valid a federal law criminalizing the destruction or mutilation of a draft registration against a First Amendment challenge).

2005See e.g.,United States v. O'Brien , 391 U.S. 367, 385 , 88 S.Ct. 1673, 1683 , 20 L.Ed.2d 672 (1968) (finding valid a federal law criminalizing the destruction or mutilation of a draft registration against a First Amendment challenge).

2015See Village of Hoffman Estates, 455 U.S. at 494 (if statute does not reach “a substantial amount of constitutionally protected conduct,” overbreadth challenge fails); Bynum, 767 S.W.2d at 772–73 (overbreadth doctrine limited in context to First Amendment issues); Goyzueta, 266 S.W.3d at 131 (“An overbreadth attack on a statute is recognized only in the context of a First Amendment challenge.”) (citing United States v. Salerno, 481 U.S. 739 (1987)); see, e.g., Duncantell v. State, 230 S.W.3d 835, 843 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (concluding that because interference with pu

2015See Village of Hoffman Estates, 455 U.S. at 494 (if statute does not reach “a substantial amount of constitutionally protected conduct,” overbreadth challenge fails); Bynum, 767 S.W.2d at 772–73 (overbreadth doctrine limited in context to First Amendment issues); Goyzueta, 266 S.W.3d at 131 (“An overbreadth attack on a statute is recognized only in the context of a First Amendment challenge.”) (citing United States v. Salerno, 481 U.S. 739 (1987)); see, e.g., Duncantell v. State, 230 S.W.3d 835, 843 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) (concluding that because interference with pu

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

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

2019“An overbreadth attack on a statute is recognized only in the context of a First Amendment challenge.” Goyzueta v. State, 266 S.W.3d 126, 131 (Tex. App.—Fort Worth 2008, no pet.) (citing United States v. Salerno, 481 U.S. 739 , 107 S. Ct. 2095 , 95 L.

2019“An overbreadth attack on a statute is recognized only in the context of a First Amendment challenge.” Goyzueta v. State, 266 S.W.3d 126, 131 (Tex. App.—Fort Worth 2008, no pet.) (citing United States v. Salerno, 481 U.S. 739 , 107 S. Ct. 2095 , 95 L.

2002Munson Co., 467 U.S. at 956 , 104 S.Ct. at 2847 (facial challenge to statute implicates First Amendment chilling effect concerns and calls for loosened application of ripeness doctrine); Weise, 55 S.W.3d at 620 ; see, e.g., Bader v. State, 15 S.W.3d 599, 603-06 (Tex.App.-Austin 2000, pet. ref'd); Ex parte Anderson, 902 S.W.2d 695, 698-701 (TexApp.-Austin 1995, pet. ref'd) (overbreadth challenges usually reserved for First Amendment violations); Reed v. State, 762 S.W.2d 640, 643-46 (Tex.App.-Texarkana 1988, pet. ref'd) (direct appeal rejecting First Amendment challenge to criminal trespass sta

2002Munson Co., 467 U.S. at 956 , 104 S.Ct. at 2847 (facial challenge to statute implicates First Amendment chilling effect concerns and calls for loosened application of ripeness doctrine); Weise, 55 S.W.3d at 620 ; see, e.g., Bader v. State, 15 S.W.3d 599, 603-06 (Tex.App.-Austin 2000, pet. ref'd); Ex parte Anderson, 902 S.W.2d 695, 698-701 (TexApp.-Austin 1995, pet. ref'd) (overbreadth challenges usually reserved for First Amendment violations); Reed v. State, 762 S.W.2d 640, 643-46 (Tex.App.-Texarkana 1988, pet. ref'd) (direct appeal rejecting First Amendment challenge to criminal trespass sta

2015Jenevein v. Willing, 493 F.3d 551, 557-58 (5th Cir. 2007).

2015Indeed, political speech by elected officials, whose “relationship with [their] employer [i.e., the people] differs from that of an ordinary state employee,” “is at the core of the First Amendment.” Jenevein v. Willing, 493 F.3d 551, 557 (5th Cir. 2007) (finding First Amendment violation by Texas judicial conduct commission when censuring elected judge for public criticism of attorney practicing in his court).

2015This statutory feature differs from, e.g., the Model Penal Code’s stand-alone coercion offense,183 coercion concepts known to civil law,184 and certain federal extortion prohibitions that have been held to require, in cases where a threat foretells lawful rather than unlawful harm, that the objective of the threat be “wrongful” in the sense of seeking property to which the actor had no plausible claim of right.185 • Nor is there any requirement in section 36.03(a)(1) or paragraph (F) that the threat in question lack a “nexus” or logical relationship to the desired conduct.186 Such a limitation

2015Cf. Scott v. State, 322 S.W.3d 662, 668-70 (Tex.Crim.App.2010) (upholding telephone-harassment statute against First Amendment challenge; statute "is directed only at persons who, with the specific intent to inflict emotional distress, repeatedly using the telephone to invade another person's personal privacy, and do so in a manner reasonably likely to inflict emotional distress.”), overruled on other grounds, Wilson v. State, 448 S.W.3d 418, 422-23 (Tex.Crim.App.2014). 183 .

2019Tex., Inc., 975 S.W.2d 546, 555 (Tex. 1998) (“Speech is protected even when the subject or manner of expression is uncomfortable.”); Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 446 (Tex. 1998) (Gonzales, J., dissenting) (“The Supreme Court’s First Amendment analysis has generally started with a presumption that all speech is protected.

2017Recognizing this authority, Compton attempts to distinguish her case from Barber with a “historical and textual basis for a more expansive reading of [a]rticle 1, [s]ection 8 of the Texas Constitution”; however, in doing so, she fails to cite any authority supporting that the elements of a free-speech claim under the Texas Constitution are different than the elements that must be pled under a First Amendment claim, in the context of prior restraint or otherwise, nor does she demonstrate how such differences “are material to [her] case.” See Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002); se

2016Strict scrutiny Under a strict-scrutiny analysis, which has been described as “‘strict’ in theory but usually ‘fatal’ in fact,’”89 the government has the burden of proving that the restriction furthers a 86 Id. 87 See Reed, 135 S. Ct. at 2228 . 88 See Barstow v. State, 742 S.W.2d 495 , 501 n.2 (Tex. App.—Austin 1987, writ denied) (“On questions of federal law . . . all courts in every state owe obedience to the Supreme Court of the United States.”); see also Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (Texas courts “are obligated to follow only higher Texas courts and th

2009See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 434 , 122 S.Ct. 1728 , 152 L.Ed.2d 670 (2002) (plurality op.) (citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46, 47-49, 51-54 , 106 S.Ct. 925 , 89 L.Ed.2d 29 (1986)).

2009See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 434 , 122 S.Ct. 1728 , 152 L.Ed.2d 670 (2002) (plurality op.) (citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46, 47-49, 51-54 , 106 S.Ct. 925 , 89 L.Ed.2d 29 (1986)).

2009See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 434 , 122 S.Ct. 1728 , 152 L.Ed.2d 670 (2002) (plurality op.) (citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46, 47-49, 51-54 , 106 S.Ct. 925 , 89 L.Ed.2d 29 (1986)).

2019“An overbreadth attack on a statute is recognized only in the context of a First Amendment challenge.” Goyzueta v. State, 266 S.W.3d 126, 131 (Tex. App.—Fort Worth 2008, no pet.) (citing United States v. Salerno, 481 U.S. 739 , 107 S. Ct. 2095 , 95 L.

2019“An overbreadth attack on a statute is recognized only in the context of a First Amendment challenge.” Goyzueta v. State, 266 S.W.3d 126, 131 (Tex. App.—Fort Worth 2008, no pet.) (citing United States v. Salerno, 481 U.S. 739 , 107 S. Ct. 2095 , 95 L.

2025How a jury interprets the electronic-harassment offense depends in part on the content of the speech at issue in the case. 18 Texas v. Johnson, 491 U.S. 397, 412 (1989) (subjecting a statute that was content-based as applied to “the most exacting scrutiny”) (quoting Boos v. Barry, 485 U.S. 312, 321 (1988)); Boos, supra (defining “the most exacting scrutiny” as showing “that the "regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end”). 19 See, e.g., Johnson, supra at 419 . 20 See supra at n.14. 21 See id.

2025How a jury interprets the electronic-harassment offense depends in part on the content of the speech at issue in the case. 18 Texas v. Johnson, 491 U.S. 397, 412 (1989) (subjecting a statute that was content-based as applied to “the most exacting scrutiny”) (quoting Boos v. Barry, 485 U.S. 312, 321 (1988)); Boos, supra (defining “the most exacting scrutiny” as showing “that the "regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end”). 19 See, e.g., Johnson, supra at 419 . 20 See supra at n.14. 21 See id.

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

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

2022“The First Amendment doctrine of substantial overbreadth is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others.” Massachusetts v. Oakes, 491 U.S. 576, 581 (1989).

2022“The First Amendment doctrine of substantial overbreadth is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others.” Massachusetts v. Oakes, 491 U.S. 576, 581 (1989).

2021First, the government has a compelling interest in “safeguarding the physical and psychological well-being of a minor.” Id. at 756–57 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982)).

2021First, the government has a compelling interest in “safeguarding the physical and psychological well-being of a minor.” Id. at 756–57 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982)).

2020Massachusetts v. Oakes, 491 U.S. 576, 581 (1989); State v. Johnson, 475 S.W.3d 860, 864-65 (Tex. Crim.

2017See, e.g., Ex parte Perry, 483 S.W.3d 884, 917 (Tex. Crim. .App. 2016) (holding portions of the Coercion of Public Servant or Voter statute unconstitutionally overbroad in violation of the First Amendment and in violation of the separation of powers); State v. Johnson, 475 S.W.3d 860, 882 (Tex. Crim.

2017Recognizing this authority, Compton attempts to distinguish her case from Barber with a “historical and textual basis for a more expansive reading of [a]rticle 1, [s]ection 8 of the Texas Constitution”; however, in doing so, she fails to cite any authority supporting that the elements of a free-speech claim under the Texas Constitution are different than the elements that must be pled under a First Amendment claim, in the context of prior restraint or otherwise, nor does she demonstrate how such differences “are material to [her] case.” See Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002); se

2017Recognizing this authority, Compton attempts to distinguish her case from Barber with a “historical and textual basis for a more expansive reading of [a]rticle 1, [s]ection 8 of the Texas Constitution”; however, in doing so, she fails to cite any authority supporting that the elements of a free-speech claim under the Texas Constitution are different than the elements that must be pled under a First Amendment claim, in the context of prior restraint or otherwise, nor does she demonstrate how such differences “are material to [her] case.” See Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002); se

2015Ford has supplemented this brief argument at trial with citations to Justice Sotomayor's concurrence in Jones, 132 S.Ct. at 956 (Sotomayor, J., concurring), and Stanford v. Texas for the proposition that search warrants must be supported by probable cause that describes the things to be seized with scrupulous exactitude.

2015Ford has supplemented this brief argument at trial with citations to Justice Sotomayor's concurrence in Jones, 132 S.Ct. at 956 (Sotomayor, J., concurring), and Stanford v. Texas for the proposition that search warrants must be supported by probable cause that describes the things to be seized with scrupulous exactitude.

2021The Court rejected a First Amendment defense to New York’s law giving five reasons why “the States are entitled to greater leeway in the regulation of pornographic depictions of children.” Id. at 756 .

2021The Court rejected a First Amendment defense to New York’s law giving five reasons why “the States are entitled to greater leeway in the regulation of pornographic depictions of children.” Id. at 756 .

2024Lebo applied the analysis in Scott to section 42.07(a)(7) and noted that any difference in text is “inconsequential to the First Amendment analysis.” Id. at 407 .

2024Lebo applied the analysis in Scott to section 42.07(a)(7) and noted that any difference in text is “inconsequential to the First Amendment analysis.” Id. at 407 .

2021Tilton v. Marshall, 925 S.W.2d 672, 677 (Tex. 1996).

2015Adan cites to Tilton for the proposition that the First Amendment does not bar all claims that touch on religious conduct. 925 S.W.2d at 677 .

2021Jones — 19 text does not bear a plain contextual meaning or if the text’s unambiguous meaning would lead to “‘absurd consequences that the legislature could not possibly have intended.’”85 In those events, a court may consider extra-textual factors like legislative history,86 the object of the statute, and the consequences of a particular construction.87 When construing a statute in the face of a First Amendment challenge, courts have a duty to employ a reasonable, narrowing construction of a statute to avoid a constitutional violation if the statute at issue is readily susceptible to one.88 I

2021Jones — 19 text does not bear a plain contextual meaning or if the text’s unambiguous meaning would lead to “‘absurd consequences that the legislature could not possibly have intended.’”85 In those events, a court may consider extra-textual factors like legislative history,86 the object of the statute, and the consequences of a particular construction.87 When construing a statute in the face of a First Amendment challenge, courts have a duty to employ a reasonable, narrowing construction of a statute to avoid a constitutional violation if the statute at issue is readily susceptible to one.88 I

2015(Pet. 33a n.23.) Justice White, speaking for the plurality, stated that “there is no First Amendment privilege to refuse to answer the relevant and material questions asked during a good-faith grand jury investigation,” and “no privilege to refuse to appear before such a grand jury until the Government demonstrates some ‘compelling need’ for a newsman's testimony.” Branzburg, 408 U.S. at 708 .

1995The Fifth Circuit also recognized a first amendment privilege for journalists in In re Selcraig, 705 F.2d 789, 792 (5th Cir.1983), but candidly acknowledged the difficulty of finding support for that position in Branzburg , stating, “Our course was dictated by our careful reading of the plurality and concurring opinions in Branzburg v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972).” Again, no particular page of the 20-page Branzburg opinion is cited.

2020In Scott v. State, however, the court of criminal appeals rejected a similar First Amendment challenge to the telephone-harassment portion of the harassment statute. 322 S.W.3d 662 (Tex. Crim.

2020In Scott v. State, however, the court of criminal appeals rejected a similar First Amendment challenge to the telephone-harassment portion of the harassment statute. 322 S.W.3d 662 (Tex. Crim.