What is speech? What makes a restriction content based? What is substantial overbreadth? Can a substantially overbroad content-based restriction on speech ever satisfy strict scrutiny?
The answers to these questions may become clearer any Wednesday now. The Court of Criminal Appeals is currently considering four overbreadth challenges to the constitutionality of different penal statutes. These challenges may, before this article is published, change the face of free-speech law in Texas.
Meanwhile, this article will provide a broad overview of challenges to content-based restrictions on speech.
Vagueness vs. Overbreadth
First Amendment challenges to content-based restrictions come in two forms: vagueness and overbreadth.
A statute is void for vagueness under the First Amendment if:
- A person of ordinary intelligence cannot know what is forbidden;
- There are no determinate guidelines for law enforcement; or
- The law is not sufficiently definite to avoid chilling protected expression.
Take, for example, Texas’s harassment statute, section 42.07 of the Texas Penal Code. The harassment statute forbids certain speech intended to “harass, annoy, alarm, abuse, torment, or embarrass” another. Expression is chilled not only by the statute’s threat of conviction (because a jury might find that the defendant intended to harass, annoy, alarm, abuse, torment, or embarrass) but also by the threat of arrest (because a police officer might think the defendant intended to harass, annoy, alarm, abuse, torment, or embarrass) and the threat of prosecution (because a prosecutor might think the defendant intended to harass, annoy, alarm, abuse, torment, or embarrass).
Courts assume that when dealing with statutes such as sexual assault of a child, which restrict non-speech conduct based on the actor’s intent, a jury can reliably read an actor’s mind.
But speech is special—the Free Speech Clause itself is proof of that. Society does not have the same interest in preventing the chilling of non-speech conduct that it has in ensuring that protected speech is not chilled.
Even assuming that a jury can reliably read a speaker’s mind, section 42.07 risks chilling speech because whether a person will be arrested or prosecuted for his speech depends not on a jury’s mindreading, but on a police officer’s and/or a prosecutor’s.
A person might beat the rap and not the ride, but the ride is expensive and no fun and for the ordinary speaker, both the threat of the ride and the threat of the rap can chill speech. A restriction criminalizing speech based on the speaker’s intent “…blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.” See Thomas v. Collins, 323 U.S. 516, 535 (1945). Under Texas Penal Code section 42.07, it is the threat of prosecution, and not only the threat of conviction, that will likely cause a speaker to hedge and trim.
The speaker who does not intend to annoy has no way to know that his words will not be misinterpreted. He is at the mercy of the inferences of others who might not wish him well. A distinction based on the intent of the speaker or the speech’s effect on its listeners “…offers no security for free discussion.” See Fed. Election Com’n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 468 (2007) (external citation omitted).
The First Amendment overbreadth doctrine is also intended to prevent restrictions chilling protected speech, but it is not dependent on a lack of clarity. While vagueness is about the person knowing what a statute forbids; overbreadth is about what the statute actually forbids. When it comes to speech, the vagueness argument is basically that speakers can’t determine whether constitutionally protected communications are prosecutable under the statute at issue. The overbreadth argument is that protected communications are, in fact, prosecutable under the statute but should not be.
Lawyers often confuse vagueness with overbreadth. If a statute seems to restrict protected speech—if it could be used to restrict a real and substantial amount of protected speech—it is not vague, but overbroad.
The Court of Criminal Appeals itself has shown a lack of clarity regarding the difference between vagueness and overbreadth: “[The defendant’s] argument, as we understand it, is that § 42.07 is overbroad on its face because its inherent vagueness makes it unclear whether it prohibits a substantial amount of protected speech.” See Scott v. State, 322 S.W.3d 662, 665 fn.3 (Tex. Crim. App. 2010) (abrogated on other grounds by Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014)). That is not the argument; that is not what overbroad means.
A content-based restriction that clearly restricts only unprotected speech is valid. A content-based restriction that leaves in doubt whether protected speech is punishable or not is vague. A content-based restriction that clearly restricts a real and substantial amount of protected speech (in relation to its legitimate sweep, the unprotected speech it restricts) is overbroad.
Protected speech is speech outside all recognized categories of historically unprotected speech. States are not free to invent new categories of unprotected speech; they must provide evidence of a longstanding tradition of restricting speech in that category.
So, the overbreadth argument is that the statute, regardless of how ambiguous it might be, forbids speech that is not unprotected.
Returning to the example of Texas Penal Code section 42.07 harassment, while the vagueness argument is that speakers can’t determine whether their speech will be construed as intended to harass, the overbreadth argument is that even speech that is intended to harass (not to mention “annoy, alarm, abuse, torment, or embarrass”) is not unprotected speech, so that the statute by its terms restricts a real and substantial amount of protected speech.
You can see how there might be interplay between these two arguments: one approach courts have taken to save overbroad statutes from overbreadth is to interpret them narrowly—to impose on the Legislature’s words a narrower meaning than the common or legal definition gives them.
Whether rewriting the statute thus is legitimate or not, doing so can convert a statute that was overbroad into one that is vague. While speakers are expected to be familiar with the words of a statute, they are not likewise expected to have read the cases interpreting a statute. So, the fact that the words of the statute alone do not limit the statute’s reach can make the statute itself vague.
Moreover, in Texas, a charging instrument is drafted and a criminal trial jury is instructed according to the language of the statute; there is no mechanism for incorporating narrowing definitions into an indictment, much less a jury charge. Even a defendant who is familiar with the narrowing of an overbroad statute has no guarantee that he will not still be prosecuted and even convicted for his protected speech.
Facial Overbreadth vs. As-Applied Overbreadth
First Amendment overbreadth challenges to statutes can themselves be divided into facial (or as-written) and as-applied challenges.
An as-written challenge makes the argument that, regardless of whether the speaker’s own speech is protected, the statute restricts (based on its content) a real and substantial amount of speech that is protected. An as-applied challenge to a statute is that the speech for which the speaker is being prosecuted (based on its content) is itself protected (that is, not in a recognized category of historically unprotected speech).
As an illustration, defamatory speech is unprotected. If a person is being prosecuted under a facially overbroad or vague statute, but their speech is for some reason unprotected, they might have an as-written but not an as-applied challenge. If a person is being prosecuted under a valid statute, but their speech is protected, he has an as-applied but not an as-written challenge. And if a person is being prosecuted under an overbroad or vague statute for protected speech, they have both an as-written and an as-applied challenge.
As-written challenges can be made pretrial, through either an application for writ of habeas corpus (which can be appealed pretrial) or through a motion to quash (which can only be appealed after a judgment).
Historically, as-applied challenges could only be made in trial because the facts that must be developed to determine whether speech is protected are the same as the facts that must be developed to determine whether the speech violates the statute. Generally, as-applied unconstitutionality challenges were not cognizable in pretrial habeas.
In the Rick Perry case, however, the Texas Court of Criminal Appeals considered the appeal of the then-Governor’s pretrial habeas as-applied challenge to the Abuse of Official Capacity statute. See Ex parte Perry, 483 S.W.3d 884 (2016). The Perry opinion offers two justifications for the cognizability of Perry’s pretrial as-applied challenge. Presiding Judge Keller’s opinion held that Perry’s challenge was cognizable because Perry’s rights would be “effectively undermined if not vindicated prior to trial.” Id. at 895 (footnote omitted).
It is unclear what rights, other than a governor’s right to exercise his veto power, would be cognizable under this rule. For example, intermediate courts have held that the right to free speech is not a right effectively undermined if not vindicated before trial, but it is not obvious that the chilling effect of a pending criminal prosecution on the accused’s right to speak freely does not effectively undermine that right.
Judge Newell, joined by Judges Keasler and Hervey, suggested a different test for pretrial cognizability—a test that might allow a defendant to terminate the chilling effect of a content-based prosecution without the cost and expense of trial. In Judge Newell’s view, “addressing the constitutional claim because the violation is apparent from the pleadings resolves the matter much more cleanly.” Id. at 924.
The Perry split on this issue appears to be the following: Presiding Judge Keller and Judges Yeary and Alcala for the “effectively undermined” rule; Judges Newell, Keasler, and Hervey for the “apparent from the pleadings” rule; Judge Meyers against cognizability for either reason; and Judges Johnson and Richardson not weighing in on the question.
An as-applied challenge under the Free Speech Clause is appropriate when the statute is not facially overbroad, but the defendant’s own speech is constitutionally protected (that is, not in an unprotected category)—in other words, when the statute restricts some protected speech, as exemplified by the defendant’s, but not a real and substantial amount of protected speech. The lesson of Perry’s uncertainty is that, where the constitutional violation is clear from the pleadings (for example, where the sworn Complaint gives enough detail that the court can tell that the accused’s speech is not in fact within any unprotected category), the accused may be able to pursue an as-applied challenge before trial.
Or maybe not. But what does the accused have to lose?
Plenty to Gain
A continuance can be as good as an acquittal for as long as it lasts. If you file a pretrial application for writ of habeas corpus challenging a content-based restriction either as written or as applied to the speech of the accused and the trial court denies relief, you can appeal to the intermediate court of appeals, and from there to the Texas Court of Criminal Appeals. But what happens to the trial-court case in the interim?
As a practical matter, most trial courts want to see legitimate constitutional questions answered before trial and so will not proceed to trial while a habeas appeal is pending. Whether the trial court may proceed to trial while the habeas appeal is pending is an unanswered question.
There have been recent cases from Austin and Beaumont supporting the proposition that a trial court may proceed, but neither case addressed section 11.32 of the Texas Code of Criminal Procedure which provides that once the defendant has appeared in court on the habeas, “he is no longer detained on the original warrant or process, but under the authority of the habeas corpus” until the habeas has been finally determined. See Tex. Code Crim. Proc. § 11.32. If the “original process” is the indictment or information and a person can only be tried on an indictment or information, if the person is no longer detained on the original process, it stands to reason that he cannot be tried until the habeas is resolved.
It’s an open question, though, and it’s going to have to be litigated in mandamus when a trial court attempts to put a defendant to trial while a viable free-speech challenge is pending, and then possibly taken up to the Texas Court of Criminal Appeals on a Petition for Discretionary Review (PDR).