Perry, Ex Parte James Richard \"Rick\" ( 2015 )

PD-1067-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/21/2015 9:09:44 PM
Accepted 10/22/2015 8:12:16 AM
October 22, 2015 ABEL ACOSTA
CLERK
NO. PD-1067-15
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS
EX PARTE JAMES RICHARD “RICK” PERRY,
Appellant
________________________________________________________
On Appeal from the 390th Judicial District Court,
Travis County, Texas, Cause No. D-1-DC-14-100139
________________________________________________________
APPELLANT’S BRIEF ON THE MERITS ADDRESSING
THE STATE’S PETITION FOR DISCRETIONARY REVIEW
________________________________________________________
THE BUZBEE LAW FIRM BAKER BOTTS L.L.P.
Anthony G. Buzbee Thomas R. Phillips
State Bar No. 24001820 State Bar No. 00000102
JPMorgan Chase Tower 98 San Jacinto Blvd., Suite 1500
600 Travis Street, Suite 7300 Austin, Texas 78701-4078
Houston, Texas 77002 tom.phillips@bakerbotts.com
Tbuzbee@txattorneys.com Telephone: 512-322-2565
Telephone: 713-223-5393 Facsimile: 512-322-8363
Facsimile: 713-223-5909
BOTSFORD & ROARK
David L. Botsford
State Bar No. 02687950
1307 West Ave.
Austin, Texas 78701
dbotsford@aol.com
Telephone: 512-479-8030
Facsimile: 512-479-8040
ORAL ARGUMENT PREVIOUSLY SCHEDULED BY THE COURT
Identity of Judge, Parties, and Counsel
The following is a complete list of the names and addresses of all parties and
counsel in this case.
Trial Judge: Honorable Bert Richardson, sitting by appointment;
Court of Criminal Appeals, Supreme Court Building, 201 West 14th
Street, Austin, Texas, 78701.
Appellant: Former Governor James Richard “Rick” Perry, c/o
Anthony G. Buzbee, JPMorgan Chase Tower, 600 Travis Street, Suite
7300, Houston, Texas 77002.
Appellant’s Counsel: Anthony G. Buzbee, JPMorgan Chase Tower,
600 Travis Street, Suite 7300, Houston, Texas 77002; Thomas R.
Phillips, 98 San Jacinto Blvd., Suite 1500, Austin, Texas 78701-4078;
and David L. Botsford, 1307 West Avenue, Austin, Texas, 78701
(Lead Counsel on Appeal).
State of Texas: Attorney Pro Tem Michael McCrum, 700 N. Saint
Mary’s Street, Suite 1900, San Antonio, Texas 78205; Assistant
Attorney Pro Tem David Gonzalez, 206 East 9th Street, Suite 1511,
Austin, Texas, 78701.
i
Table of Contents
Identity of Judge, Parties, and Counsel...................................................................... i
Index of Authorities ................................................................................................. iv
Statement of the Case.................................................................................................1
Grounds for Review ...................................................................................................3
Statement of the Facts ................................................................................................4
A.  Proceedings in the district court ............................................................4
B.  B. Proceedings in the court of appeals ..................................................6
Summary of the Argument.......................................................................................10
Argument..................................................................................................................12
A.  Introduction .........................................................................................12
B.  The court of appeals opinion correctly analyzed and decided
Governor Perry’s First Amendment challenges ..................................13
1.  First Amendment Principles .....................................................13
2.  The Statutory Framework .........................................................15
3.  The court of appeals was faithful to this Court’s binding
precedents..................................................................................18
4.  Section 36.03(a)(1), as it incorporates the definition of
“coercion” from Section 1.07(a)(9)(F), implicates the
First Amendment.......................................................................20
5.  The State’s arguments that the statutes do not implicate
the First Amendment are without merit ....................................20
a.  The State’s cases are distinguishable .............................21
b.  The court of appeals was correct that Governor
Perry did not lose his First Amendment rights by
holding public office .......................................................25
ii
6.  Section 36.03(a)(1), as it incorporates the definition of
“coercion” from Section 1.07(a)(9)(F), is a content-based
restriction on speech..................................................................31
7.  Section 36.03(a)(1), as it incorporates the definition of
“coercion” from Section 1.07(a)(9)(F), fails to satisfy
“strict scrutiny” .........................................................................33
C.  Even if the court of appeals erred in its reasoning, its judgment
was correct for other reasons. ..............................................................35
1.  Section 36.03(a)(1), as it incorporates the definition of
“coercion” from Section 1.07(a)(9)(F), is overbroad ...............35
2.  The statutory scheme is facially void for vagueness ................46
Prayer for Relief .......................................................................................................52
Certificate of Compliance ........................................................................................54
Certificate of Service ...............................................................................................54
iii
Index of Authorities
Page(s)
CASES
All. to End Repression v. City of Chicago,
742 F.2d 1007 (7th Cir. 1984) .................................................................................................37
Ashcroft v. A.C.L.U.,
535 U.S. 564 (2002) .................................................................................................................32
Ashcroft v. Am. Civil Liberties Union,
542 U.S. 656 (2004) ...........................................................................................................14, 15
Bd. v. State,
No. 03-96-00024-CR, 1998 WL 271043 (Tex. App.—Austin May 29, 1998,
pet. ref’d) (not designated for publication) ..............................................................................22
Bond v. Floyd,
385 U.S. 116 (1966) .................................................................................................................27
Broadrick v. Oklahoma,
413 U.S. 601 (1973) ...........................................................................................................43, 44
Brown v. Entm’t Merchants Ass’n,
131 S. Ct. 2729 (2011) .......................................................................................................13, 33
Carey v. Brown,
447 U.S. 455 (1980) .................................................................................................................24
City of Seattle v. Ivan,
856 P.2d 1116 (Wash. App. 1993) ...........................................................................................38
Colautti v. Franklin,
439 U.S. 379 (1979) .................................................................................................................49
Collection Consultants, Inc. v. State,
556 S.W.2d 787 (Tex. Crim. App. 1977).................................................................................42
Connick v. Myers,
461 U.S. 138 (1983) .................................................................................................................26
Crouch v. Civil Serv. Comm’n of Tex. City,
459 S.W.2d 491 (Tex. Civ. App.—Houston [14th Dist.] 1970, writ ref’d n.r.e.)....................50
iv
Duncantell v. State,
230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d) ...............................22, 23
Ely v. State,
582 S.W.2d 416 (Tex. Crim. App. 1979).................................................................................47
Ex parte Lo,
424 S.W.3d 10 (Tex. Crim. App. 2013)........................................................................... passim
Ex parte Thompson,
442 S.W.3d 325 (Tex. Crim. App. 2014)......................................................................... passim
Garcetti v. Ceballos,
547 U.S. 410 (2006) .................................................................................................................26
Garrison v. La.,
379 U.S. 64 (1964) ...................................................................................................................41
Gooding v. Wilson,
405 U.S. 518 (1972) .................................................................................................................48
Grayned v. Rockford,
408 U.S. 104 (1972) .................................................................................................................47
Jenevein v. Willing,
493 F.3d 551 (5th Cir. 2007) ...................................................................................................27
Johanns v. Livestock Mktg. Ass’n,
544 U.S. 550 (2005) ...........................................................................................................28, 29
Kramer v. Price,
712 F.2d 174 (5th Cir. 1983) ...................................................................................................47
Long v. State,
931 S.W.2d 285 (Tex. Crim. App. 1991).....................................................................47, 48, 49
McIntyre v. Ohio Elections Comm’n,
514 U.S. 334 (1995) .................................................................................................................13
Meyer v. Grant,
486 U.S. 414 (1988) ...........................................................................................................13, 41
N.A.A.C.P v. Claiborne Hardware Co.,
458 U.S. 886 (1982) .....................................................................................................23, 24, 37
N.Y. Times Co. v. Sullivan,
376 U.S. 254 (1964) .................................................................................................................13
v
Olivas v. State,
203 S.W.3d 341 (Tex. Crim. App. 2006)...........................................................................20, 50
Org. for a Better Austin v. Keefe,
402 U.S. 415 (1971) ...........................................................................................................24, 30
Papachristou v. City of Jacksonville,
405 U.S. 156 (1971) .................................................................................................................47
People v. Iboa,
207 Cal. App. 4th 111 (2012) ..................................................................................................39
Phillips v. State,
401 S.W.3d 282 (Tex. App.—San Antonio 2013, pet. ref’d) ............................................30, 40
Pleasant Grove City v. Summum,
555 U.S. 460 (2009) ...........................................................................................................28, 29
Puckett v. State,
801 S.W.2d 188 (Tex. App.—Houston [14th Dist.] 1990, pet. ref’d) .........................21, 22, 42
R.A.V. v. City of St. Paul,
505 U.S. 377 (1992) .....................................................................................................13, 19, 33
Reed v. Town of Gilbert, Ariz.,
135 S. Ct. 2218 (2015) .............................................................................................................32
Reno v. Am. Civil Liberties Union,
521 U.S. 844 (1997) .................................................................................................................15
Roberts v. State,
278 S.W.3d 778 (Tex. App.—San Antonio 2008, pet. ref’d) ............................................42, 51
Sanchez v. State,
995 S.W.2d 677 (Tex. Crim. App. 1999)...............................................................24, 25, 36, 42
Schaumburg v. Citizens for a Better Env’t,
444 U.S. 620 (1980) .................................................................................................................43
Sorrell v. IMS Health,
131 S. Ct. 2653 (2011) ........................................................................................................13, 33
State v. Hanson,
793 S.W.2d 270 (Tex. App.—Waco 1990, no pet.).........................................37, 45, 46, 48, 51
State v. Johnson,
___ S.W.3d ___, No. PD-0228-14, 2015 WL 5853115 (Tex. Crim. App.
October 7, 2015) ................................................................................................................18, 19
vi
State v. Pauling,
69 P.3d 331 (Wash. 2003)........................................................................................................39
State v. Robertson,
649 P.2d 569 (Or. 1982) ..........................................................................................................38
State v. Strong,
272 P.3d 281 (Wash. App. 2012) .............................................................................................36
State v. Weinstein,
898 P.2d 513 (Ariz. Ct. App. 1995) ...................................................................................37, 38
Tobias v. State,
884 S.W.2d 571 (Tex. App.—Fort Worth 1994, pet. ref’d) ..................................30, 34, 42, 51
U.S. ex rel. Holder v. Circuit Court of 17th Judicial Circuit,
624 F. Supp. 68 (N.D. Ill. 1985) ........................................................................................36, 38
United States v. Coss,
677 F.3d 278 (6th Cir. 2012) ...................................................................................................36
United States v. Jackson,
180 F.3d 55 (2d Cir. 1999).................................................................................................37, 39
United States v. Playboy Entm’t Grp., Inc.,
529 U.S. 803 (2000) ...........................................................................................................13, 33
United States v. Stevens,
559 U.S. 460 (2010) ...............................................................................................14, 20, 44, 45
United States v. Velasquez,
772 F.2d 1348 (7th Cir. 1985) .................................................................................................37
United States v. Williams,
553 U.S. 285 (2008) ...........................................................................................................14, 26
Van Arsdel v. Tex. A&M Univ.,
628 F.2d 344 (5th Cir. 1980) ...................................................................................................50
Virginia v. Black,
538 U.S. 343 (2003) .....................................................................................................13, 23, 36
Virginia v. Hicks,
539 U.S. 113 (2003) .................................................................................................................43
Walker v. Tex. Division, Sons of Confederate Veterans, Inc.,
135 S. Ct. 2239 (2015) .............................................................................................................28
vii
Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442 (2008) .................................................................................................................14
Watts v. United States,
394 U.S. 705 (1969) .....................................................................................................20, 23, 36
Whimbush v. People,
869 P.2d 1245 (Colo. 1994) .....................................................................................................38
Willborn v. Deans,
240 S.W.2d 791 (Tex. Civ. App.—Austin 1951, writ ref’d n.r.e.) ..........................................50
Wood v. Georgia,
370 U.S. 375 (1962) .................................................................................................................27
Wurtz v. Risley,
719 F.2d 1438 (9th Cir. 1983) ...........................................................................................36, 38
STATUTES
Tex. Penal Code § 1.07(a)(9)(F) ............................................................................................ passim
Tex. Penal Code § 1.07(a)(41) .......................................................................................................17
Tex. Penal Code § 1.07(a)(48) .....................................................................................21, 39, 43, 51
Tex. Penal Code § 36.03(a)(1) ............................................................................................... passim
Tex. Penal Code § 36.03(c)............................................................................................................18
Tex. Penal Code § 36.06(a)............................................................................................... 39, 42, 52
Tex. Penal Code § 42.07(a)(2) .......................................................................................................42
OTHER AUTHORITIES
Tex. R. App. P. 47.7.......................................................................................................................22
LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-32 (2d ed. 1988) ..........................14
U.S. Const. amend. I ......................................................................................................................13
viii
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:
COMES NOW Appellant, James Richard “Rick” Perry (Governor Perry),
and pursuant to the Court’s Order of October 7, 2015, presents his brief on the
merits addressing the State’s petition for review, and would respectfully show this
Honorable Court the following:
Statement of the Case
In August 2014, a two-count indictment was returned against Governor
Perry for violating Sections 36.03(a)(1), 1.07(a)(9)(F) (Count II, coercion of public
servant), and 39.02(a)(2) (Count I, abuse of official capacity) of the Texas Penal
Code by threatening to exercise, and then actually exercising, the authority to veto
appropriations vested in the Governor by the Texas Constitution. CR4-5. Ten
days after the indictment, Governor Perry filed an application for pretrial writ of
habeas corpus contesting the legality of his restraint and seeking to bar his
prosecution on both counts, primarily on constitutional grounds. CR11-70.
After the district court denied relief, CR464-84, Perry appealed to the Third
Court of Appeals, which ordered expedited briefing and denied the State’s request
for oral argument. In a published opinion, that court held that all nine constitutional
challenges to Count I and seven constitutional challenges to Count II were not
cognizable because they were not “facial,” merely “as applied.” Slip Op. at 10-32.
The court then granted relief on Count II because the statute was facially invalid
1
under the First Amendment. Id. at 32-97. The court thus found it unnecessary to
address Perry’s cognizable, facial vagueness challenge to the statute. Id. at 97.
Governor Perry filed his petition for discretionary review on August 18,
2015, presenting four grounds challenging the decision that Count I was not
cognizable on pretrial habeas. Two weeks later, the State Prosecuting Attorney
filed her petition for discretionary review attacking the court of appeals’ decision
that Count II was facially invalid under the First Amendment. On October 7, 2015,
this Court granted both petitions, set an expedited briefing schedule, and ordered
separate arguments on each petition.
2
Grounds for Review
1. Did the court of appeals incorrectly conflate the tests for First Amendment
overbreadth and traditional First Amendment facial unconstitutionality?
2. Applying the definition of “coercion” from Tex. Penal Code § 1.07(a)(9)(F),
does the Coercion of a Public Servant statute ban a substantial amount of
constitutionally protected speech relative to its plainly legitimate sweep?
3
Statement of Facts
A. Proceedings in the district court
On August 15, 2014, a Travis County grand jury returned a two-count
indictment against then-Governor James Richard “Rick” Perry alleging that
Governor Perry broke the law by threatening to veto an item of appropriations and
subsequently issuing a veto. CR4-5.1
Count II, alleging that Governor Perry committed Coercion of a Public
Servant under Sections 36.03(a)(1) and 1.07(a)(9)(F) of the Texas Penal Code,
states:
Beginning on or about June 10, 2013, and continuing through June 14,
2013, in the County of Travis, Texas, by means of coercion, to wit:
threatening to veto legislation that had been approved and authorized
by the Legislature of the State of Texas to provide funding for the
continued operation of the Public Integrity Unit of the Travis County
District Attorney’s Office unless Travis County District Attorney
Rosemary Lehmberg resigned from her official position as elected
District Attorney, James Richard “Rick” Perry, intentionally or
knowingly influenced or attempted to influence Rosemary Lehmberg,
a public servant, namely, the elected District Attorney for Travis
County, Texas, in the specific performance of her official duty, to wit:
the duty to continue to carry out her responsibilities as the elected
District Attorney for the county of Travis, Texas through the
completion of her elected term of office, and the defendant and
Rosemary Lehmberg were not members of the same governing body
of a governmental entity, such offense having been committed by
defendant, a public servant, while acting in such an official capacity
1
Count I, which is not implicated by either of the grounds for review in the State’s petition
for discretionary review, alleges that Governor Perry committed Abuse of Official Capacity
under Section 39.02(a) of the Texas Penal Code. CR4-5. The gist of this count is that Governor
Perry “misused” government property by vetoing funding for the Travis County Public Integrity
Unit (“PIU”). CR4-5.
4
as a public servant.
CR5. The gist of this charge is that he attempted to “influence” Travis County
District Attorney Rosemary Lehmberg by threatening to veto funding for the PIU.
Id.2
On August 19, 2014, Governor Perry was processed by the Travis County
Sheriff and released on bond pending trial. CR8-10.
On August 25, 2014, Governor Perry filed an Application for Pretrial Writ
of Habeas Corpus (the “Application”). He challenged the legality of his restraint
and specifically sought “to bar the prosecution” on both counts. CR11, 49. The
Application presented eleven constitutional claims as to Count II, CR17-19.3
The district court gave the State almost three months to respond, which it did
on November 7, 2014. CR274. Governor Perry filed a reply on November 17,
2014. CR391.
Fourteen nationally-known constitutional scholars filed an amicus curiae
brief in support of Governor Perry’s Application. CR367-90. The amici supported
Governor Perry’s prayer for dismissal of Count II on the ground that the statutory
provisions, read together, criminalize speech protected by the First Amendment
2
In April 2015, the State conceded that the threat of the veto was “not a true threat.” See
April 27, 2015 Supplemental Clerk’s Record at 88. Furthermore, the district court has interpreted
Count II as alleging a Class A misdemeanor offense, as opposed to a third degree felony as
contended by the State. CR441.
3
These eleven claims are also set forth in the court of appeals opinion at 7-8.
5
and are facially invalid. CR384-89.
On January 27, 2015, the district court denied the Application without a
hearing. CR464-84. The court rejected Governor Perry’s facial challenges to
Section 36.03(a)(1), as it incorporates the definition of “coercion” contained in
Section 1.07(a)(9)(F).4 The district court, “in an abundance of precaution,” CR475,
applied a strict scrutiny analysis because of the “presumption of invalidity”
associated with a content based restriction on speech, citing Ex parte Lo, 424
S.W.3d 10, 14-18 (Tex. Crim. App. 2013). CR475. Despite this heightened
standard, the court held that the provisions were not facially unconstitutional under
the First Amendment or the Fourteenth Amendment. CR474-84.5
B. Proceedings in the court of appeals
Governor Perry timely appealed to the Third Court of Appeals. The
constitutional scholars (with some additions) who had filed an amicus curiae brief
in the district court renewed their support of Governor Perry’s prayer for dismissal
of Count II. Amici urged the same two grounds as it had in the district court. On
4
These challenges were Governor Perry’s claims 1-4 as to Count II.
5
The court ruled that the remainder of Governor Perry’s constitutional challenges to both
counts were not cognizable in a pretrial habeas proceeding because they supposedly raised
merely as-applied, rather than facial, constitutional challenges. CR468-73. While the court
acknowledged that these arguments were “compelling” and “may be relevant at a later time,” it
declined to reach their merits on the mistaken belief that “the court’s hands are tied” under
existing case law regarding cognizability. CR472-73. Furthermore, the district court held that
Governor Perry’s one statutory challenge to Count II was not cognizable in a pretrial habeas
proceeding, CR482, but the district court sustained this same statutory challenge in ruling on
Governor Perry’s motion to quash. CR459-62 (sustaining challenge to Count II for failing to
6
July 24, 2015, the court of appeals issued an opinion and judgment.
The court of appeals began its analysis by construing the challenged statutes,
noting that “it is impossible to determine whether a statute reaches too far without
first knowing what the statute covers.” Slip Op. at 39. The court’s extensive
analysis, id. at 39-61, led it to conclude that Section 36.03(a)(1) was a far more
expansive criminal prohibition on speech than the district court had believed. Id. at
60. It also concluded that “it is this vast breadth that causes section 36.03(a)(1), as it
incorporates paragraph (F), to impinge upon substantial amounts of First
Amendment-protected speech among Texas’s public servants.” Id. at 60-61.
Then, the court considered whether the speech prohibited by the statutory
scheme was in fact protected by the First Amendment. Id. at 61 et seq. Applying
recognized First Amendment case law, it concluded that the statutory scheme
criminalized “core political speech,” which includes “speech by public servants
regarding their official actions that is aimed at prompting other public servants to
undertake official action.” Id. at 62. Because the First Amendment’s protections
are at their “zenith” for such speech, id., the court rejected the State’s arguments
that public servants like Governor Perry have either no First Amendment rights at
all or limited rights that can be restricted by law. Id. at 63-71. The court also
concluded that none of the historical exceptions to First Amendment protections,
negate statutory exception and granting State leave to amend).
7
such as the exception for speech that is integral to criminal conduct, apply here.
Id. at 71-85.6
Next, the court addressed whether the statutory scheme’s “impingement” on
First Amendment rights “can be justified.” Id. at 85. Because Section 36.03(a)(1)
“targets speech having a specified content (communicated intent to inflict one of
the six categories of harms enumerated in the ‘coercion’ definition) based on the
communicative impact the threat has or is intended to have (bringing about certain
specified conduct of a public servant),” the court concluded that it “must be
classified as a ‘content-based’ speech prohibition—on its face.” Id. at 85-86. Thus,
the State bore the burden to rebut the presumption of invalidity by showing that the
statutory scheme satisfies the applicable “strict scrutiny” standard. Id. at 86.
Accordingly, the State had to prove that the statutory scheme “[is]
(1) necessary to serve (2) a compelling state interest and (3) [is] narrowly drawn
(i.e., that it employ[s] the least restrictive means to achieve its goal and there [is] a
close nexus between the government’s compelling interest and the restriction).”
Id. Although the court “assum[ed] without deciding” that the State’s “asserted
interests would rise to the level of ‘compelling,’“ it concluded that “section
6
The court concluded that “[t]hese kinds of threats are ‘speech incident to criminal
conduct’ only if the basic workings of government are considered criminal conduct, a
proposition we cannot sanction.” Slip Op. at 82. The court noted that the State’s attempt to
characterize “these threats as ‘coercive’“ so as to “displace them from the First Amendment
protections” ran afoul of Supreme Court precedent that “‘offensive’ and ‘coercive’ speech [is]
nevertheless protected by the First Amendment.” Id. at 82 & n.269.
8
36.03(a)(1), as it incorporates paragraph (F)” is not “‘narrowly drawn’ to achieve
those objectives.” Id. at 87. The court reasoned that it “begins to strain even
rational-basis scrutiny to conclude that a statute that goes as far as to criminalize a
public servant’s threat merely to lawfully exercise his delegated powers as a
related consequence of another public servant’s failure or refusal to comply with a
lawful demand for action would protect ‘the integrity’ of government or prevent
‘interference’ with public servants’ performance of their delegated functions.” Id.
at 87-88. Indeed, “[i]f anything, the effect of the statutes in those circumstances
would be to undermine these interests by criminalizing much of the ordinary day-
to-day workings of government. And to the extent the unique circumstances of the
judicial process might justify the prosecution as it would apply in that context,” the
statutory “proscription extends far more broadly.” Id. at 88.
The court also concluded that Section 36.03(a)(1), as it incorporates
1.07(a)(9)(F), was not “necessary” to effectuate the State’s interests. Id. Noting
Governor Perry’s comparisons to this Court’s opinion in Ex parte Lo, 424 S.W.3d
10 (Tex. Crim. App. 2013), the court “agree[d] that while some applications of
section 36.03(a)(1) and paragraph (F) may be permissible or justified under the
First Amendment, Lo’s rationale would be an additional reason for invalidating the
statute as to other applications.” Id. at 88-89.
The court then addressed whether the “‘alarming’ breadth” of the statutory
9
scheme, “reaching even a public servant’s declared intention to take or withhold
action lawfully, aimed at bringing about another public servant’s lawful action that
the first public servant could lawfully demand or require,” id. at 88, could be saved
by any “reasonable narrowing construction.” Id. at 91. Finding a plausible
narrowing construction to be legally untenable, id. at 89-96, the court held that
“section 36.03(a)(1), as it incorporates paragraph (F) of the Penal Code’s
‘coercion’ definition, is facially invalid under the First Amendment and is thus
unenforceable.” Id. at 97. And “[b]ecause this holding entitles Perry to habeas
relief with respect to Court II of the indictment,” the court decided that it “need not
address his remaining arguments.” Id.
Summary of the Argument
The court of appeals correctly analyzed and decided Governor Perry’s First
Amendment challenges to Section 36.03(a)(1), as it incorporates the definition of
“coercion” in Section 1.07(a)(9)(F): a “threat, however communicated” “to take or
withhold action as a public servant.” The court properly concluded that the statutory
scheme criminalizes all statements by public servants that threaten lawful action and
merely have the effect of influencing another public servant. The court properly
found this scheme criminalized only speech, not conduct. And it also properly
concluded that the statutory scheme penalizes not unprotected speech, but “core
political speech” for which First Amendment’s protections are at their “zenith.”
10
The State’s arguments that the statutory scheme does not implicate the First
Amendment were properly rebuffed by the court of appeals. The speech
criminalized by the statutes does not fall into any historical exception to the First
Amendment. The statutory scheme does not require a “true threat:” “statements
where the speaker means to communicate a serious expression of an intent to
commit an act of unlawful violence.” Nor does it require a threat of “unlawful”
action, and it does not apply to speech that is integral to criminal conduct.
The court of appeals also properly rejected the State’s arguments that
Governor Perry’s speech was “governmental speech” exempt from the protections
of the First Amendment and that he himself has no First Amendment rights
because he was a public servant.
Importantly, the appeals court faithfully followed this Court’s prior opinions
by concluding that the statutory scheme was a content-based restriction on First
Amendment rights. Recognizing the presumption of invalidity and corresponding
strict scrutiny standard that apply to content-based restrictions, the appeals court
properly found that the statutory scheme was not necessary to serve any state
interests. And before invalidating the statutory scheme, the appeals court properly
examined whether the breadth of its proscriptions are capable of any narrowing
construction. Simply stated, the court of appeals reached an undeniably correct
result, even without addressing Governor Perry’s facial vagueness arguments.
11
Argument
A. Introduction
The State’s grounds for review ask whether the court of appeals erred in
holding that Section 36.03(a)(1), as it incorporates the definition of “coercion”
contained in Section 1.07(a)(9)(F), “is facially unconstitutional under the First
Amendment overbreadth doctrine.” State PDR at 2.
Governor Perry urges this Court to affirm the judgment of the court of
appeals on precisely the grounds set forth in the court of appeals’ opinion. It
correctly mirrors the analysis used by this Court in its recent pronouncements, and
accurately analyzes the statutory scheme and legal issues attendant to its
conclusion that “section 36.03(a)(1), as it incorporates paragraph (F) of the Penal
Code’s ‘coercion’ definition, is facially invalid under the First Amendment and is
thus unenforceable.” Slip Op. at 97. Additionally, since the court of appeals
declined to address Governor Perry’s facial vagueness claims, this Court should
consider whether the grant of discretionary review was improvidently granted
since, if this Court reverses the court of appeals’ decision on Count II, the merits of
the unaddressed, cognizable and dispositive facial vagueness challenge will still
have to be addressed by this Court or the court of appeals.
12
B. The court of appeals opinion correctly analyzed and decided
Governor Perry’s First Amendment challenges
1. First Amendment Principles
The First Amendment, which has been incorporated by the Due Process
Clause of the Fourteenth Amendment to apply to the states, e.g., Virginia v. Black,
538 U.S. 343, 358 (2003), provides that “Congress shall make no law . . . abridging
the freedom of speech.” U.S. Const. amend. I. Core political speech, such as the
alleged statement by Governor Perry that he would exercise his veto power if
Lehmberg did not resign her office, lies at the very heart of First Amendment
protection. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995)
(courts must apply “exacting scrutiny” to laws burdening core political speech);
Meyer v. Grant, 486 U.S. 414, 425 (1988) (First Amendment protection is “at its
zenith” for core political speech). This heightened protection stems from our
“profound national commitment” to the principle that “debate on public issues
should be uninhibited, robust, and wide-open.” N.Y. Times Co. v. Sullivan, 376
U.S. 254, 270 (1964). “Content-based regulations are presumptively invalid, and it
is rare that a regulation restricting speech because of its content will ever be
permissible.” Ex parte Thompson, 442 S.W.3d 325, 348 (Tex. Crim. App. 2014)
(citing Sorrell v. IMS Health, 131 S. Ct. 2653, 2667 (2011) (quoting R.A.V. v. City
of St. Paul, 505 U.S. 377, 382 (1992)) and Brown v. Entm’t Merchants Ass’n, 131
S. Ct. 2729 at 2738 (2011) (citing United States v. Playboy Entm’t Grp., Inc., 529
13
U.S. 803, 818 (2000); Ex parte Lo, 424 S.W.3d at 15.
To succeed in a typical facial attack, a defendant must establish “that no set
of circumstances exists under which [the statute] would be valid,” or that the
statute lacks any “plainly legitimate sweep.” United States v. Stevens, 559 U.S.
460, 472 (2010) (citations and quotation omitted). However, in the context of the
First Amendment, the Supreme Court recognizes “a second type of facial
challenge,” whereby a law may be invalidated as overbroad if “a substantial
number of its applications are unconstitutional, judged in relation to the statute’s
plainly legitimate sweep.” Id. at 473 (quoting Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 n.6 (2008) (internal quotation marks
omitted)). Thus, a statute is facially unconstitutional and violates the overbreadth
doctrine if “it prohibits a substantial amount of protected speech.” United States v.
Williams, 553 U.S. 285, 292 (2008). A law that is overbroad cannot be validly
applied against any individual. LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL
LAW § 12-32, 1036 (2d ed. 1988). Courts must not “uphold an unconstitutional
statute merely because the Government promised to use it responsibly.”
Thompson, 442 S.W.3d at 350 (quoting Stevens, 559 U.S. at 480).
In addition, a statute regulating the content of speech is subject to “strict
scrutiny” and will be invalidated unless it constitutes the “least restrictive means”
of effectuating a “compelling [state] interest.” Ashcroft v. Am. Civil Liberties
14
Union, 542 U.S. 656, 658, 666 (2004); Ex parte Lo, 424 S.W.3d at 19; Ex parte
Thompson, 442 S.W.3d at 348. A statute that prohibits protected speech “is
unacceptable if less restrictive alternatives would be at least as effective in
achieving the legitimate purpose that the statute was enacted to serve,” and “the
burden is on the Government to prove that the proposed alternatives will not be as
effective as the challenged statute.” Ashcroft, 542 U.S. at 665 (quoting Reno v.
Am. Civil Liberties Union, 521 U.S. 844, 874 (1997).
2. The Statutory Framework
The first step in evaluating Governor Perry’s facial challenges requires an
examination of the relevant statutory language. Section 36.03, entitled “Coercion
of Public Servant or Voter,” provides the following:
(a) A person commits an offense if by means of coercion he:
(1) influences or attempts to influence a public servant in a specific
exercise of his official power or a specific performance of his official
duty or influences or attempts to influence a public servant to violate
the public servant’s known legal duty; or
(2) influences or attempts to influence a voter not to vote or to vote in
a particular manner.
(b) An offense under this section is a Class A misdemeanor unless the
coercion is a threat to commit a felony, in which event it is a felony of the
third degree.
(c) It is an exception to the application of Subsection (a)(1) of this section
that the person who influences or attempts to influence the public servant is
a member of the governing body of a governmental entity, and that the
action that influences or attempts to influence the public servant is an
15
official action taken by the member of the governing body. For the purposes
of this subsection, the term “official action” includes deliberations by the
governing body of a governmental entity.
Coercion, as used in Section 36.03(a)(1), is defined in Section 1.07(a)(9) of
the Texas Penal Code as follows:
(9) “Coercion” means a threat, however communicated:
(A) to commit an offense;
(B) to inflict bodily injury in the future on the person threatened or
another;
(C) to accuse a person of any offense;
(D) to expose a person to hatred, contempt, or ridicule;
(E) to harm the credit or business repute of any person; or
(F) to take or withhold action as a public servant, or to cause a public
servant to take or withhold action.
The term “public servant” is defined in Section 1.07(a)(41) of the Texas
Penal Code as follows:
(41) “Public servant” means a person elected, selected, appointed, employed,
or otherwise designated as one of the following, even if he has not yet
qualified for office or assumed his duties:
(A) an officer, employee, or agent of government;
(B) a juror or grand juror; or
(C) an arbitrator, referee, or other person who is authorized by law or
private written agreement to hear or determine a cause or controversy;
or
16
(D) an attorney at law or notary public when participating in the
performance of a governmental function; or
(E) a candidate for nomination or election to public office; or
(F) a person who is performing a governmental function under a claim
of right although he is not legally qualified to do so.
The statutory language that forms the basis for Count II is written in broad
strokes. It begins with Section 36.03(a)(1), which makes it a crime to coerce a
public servant. An individual commits an offense if he or she, “by means of
coercion . . . influences or attempts to influence a public servant in a specific
exercise of his official power or a specific performance of his official duty or
influences or attempts to influence a public servant to violate the public servant’s
known legal duty.” Tex. Penal Code § 36.03(a)(1). “Coercion” is then defined in
the definition section of the Penal Code as “a threat, however communicated,” to
do six distinct things, including “to take or withhold action as a public servant, or
to cause a public servant to take or withhold action.” Id. § 1.07(a)(9)(F). “Public
servant” is also defined broadly to encompass all aspects of state government,
including any “officer, employee, or agent of government,” “a juror or grand
juror,” “an arbitrator,” a political candidate, and even “an attorney at law or notary
public when participating in the performance of a government function.” Id. §
1.07(a)(41). Against this expansive sweep, the coercion statute contains a single,
narrow exception, for “member[s] of the governing body of a governmental entity”
17
when they take “official action.” Id. § 36.03(c).
3. The court of appeals was faithful to this Court’s binding
precedents.
The court of appeals’ opinion closely mirrors the structure and legal analysis
utilized by this Court in Ex parte Lo, supra, Ex parte Thompson, supra, and State
v. Johnson, ___ S.W.3d ___, No. PD-0228-14, 2015 WL 5853115 (Tex. Crim.
App. October 7, 2015). That opinion correctly applies well established First
Amendment jurisprudence from these and other cases.
Lo involved a pretrial writ of habeas corpus alleging that a specific
subsection of the felony offense of online solicitation of a minor (Section
33.0121(b) of the Texas Penal Code) was facially unconstitutional. 424 S.W.2d at
14-15. Lo determined that the statute was a “content-based” regulation of speech,
and therefore applied the constitutionally required presumption of invalidity and
the corresponding “strict scrutiny” test. Id. The Court concluded that the statute is
“overbroad because it prohibits a wide array of constitutionally protected speech
and is not narrowly drawn to achieve only the legitimate objective of protecting
children from sexual abuse.” Id. at 14.
Thompson also involved a pretrial writ of habeas corpus alleging that a
specific subsection of the improper photography statute (Section 21.15(b)(1) of the
Texas Penal Code) was facially unconstitutional in violation of the First
Amendment. 442 S.W.3d at 331. This Court agreed, holding that the statute was a
18
“content-based” regulation of speech that did not satisfy “strict scrutiny” because it
is not “the least restrictive means of achieving the compelling government interest
in question.” Id. at 348-349. The Court then, out of “an abundance of caution,”
engaged in an overbreadth analysis and concluded that the statute was substantially
overbroad. Id. at 349-351.
In Johnson, this Court followed an approach similar Lo and Thompson in
striking down the flag-destruction statute, Section 42.11 of the Texas Penal Code,
as facially invalid on its face because it is unconstitutionally overbroad in violation
of the First Amendment. Johnson, 2015 WL 5853115, at *2.
The court of appeals reached the correct result under Lo, Thompson and
Johnson. As in those cases, the court of appeals determined that the statutory
scheme was content-based, and then applied “strict scrutiny” to find it facially
invalid because it was not sufficiently narrowly drawn to achieve any legitimate
objectives behind them. Thus, far from conflating legal concepts,7 as the State’s
petition for discretionary alleges,8 the court of appeals correctly analyzed the First
7
In R.A.V. v. City of St. Paul, 505 U.S. 377, 381 n.3 (1992), the Supreme Court granted
certiorari to examine petitioner’s claim that the St. Paul ordinance “violat[es] overbreadth ...
principles of the First Amendment. The Court elected not to engage in an traditional overbreadth
analysis, observing that petitioner had advanced “not just a technical ‘overbreadth” claim—i.e., a
claim that the ordinance violated the rights of too many third parties,” but also “included the
contention that the ordinance was ‘overbroad’ in the sense of restricting more speech than the
Constitution permits, even in its application to him, because it is content based.” The Court
concluded “that the ordinance is facially unconstitutional in that it prohibits otherwise permitted
speech solely on the basis of the subjects the speech addresses.” Id.
8
The State claims that “whether the statute is content based never enters into overbreadth
19
Amendment implications of Section 36.03(a)(1), as it incorporates Section
1.079(a)(9)(F).
4. Section 36.03(a)(1), as it incorporates the definition of
“coercion” from Section 1.07(a)(9)(F), implicates the First
Amendment.
“Coercion” is defined as a “threat,” “however communicated,” to do or
perform one or more of the six types of actions defined in 1.07(a)(9)(A-F). While
the term “threat” is not statutorily defined, this Court has previously defined “threat”
as “a communicated intent to inflict harm or loss on another or on another’s
property.” Olivas v. State, 203 S.W.3d 341, 345-46 (Tex. Crim. App. 2006). It is
therefore clear that the Legislature has limited “coercion” to speech, excluding
conduct from the statute’s purview. Thus, the statute on its face necessarily
implicates the First Amendment. Watts v. United States, 394 U.S. 705, 706-07 &
n.* (1969) (written or oral threats “to take the life or to inflict bodily harm upon the
President” or others in line of succession “makes criminal a form of pure speech”).
5. The State’s arguments that the statutes do not implicate the
First Amendment are without merit.
The State argues that the court of appeals erred at the outset because
coercive threats are outside the protection of the First Amendment. This claim is
analysis, State PDR at 5, but this is inaccurate. In United States v. Stevens, 559 U.S. 460 (2010),
relied upon by the State in its petition, the Supreme Court invalidated the animal cruelty statute
because it was “substantially overbroad,” 559 U.S. 482, but it did so only after concluding that
the statute was “presumptively invalid” because it “explicitly regulates expression based on
content.” Id. at 468. The Court’s overbreadth analysis compared the presumptively
20
without merit.
In the court of appeals, the State argued that Governor Perry’s speech was
unprotected because it amounted to a “retaliatory act,” “verbal extortion,” or a
“quid pro quo threat[] made under a display of authority and power.” St. Br.at 6-7.
But the sections under challenge criminalize far more than retaliation, extortion,
and quid pro quo threats. See App.Br. at 10-17.
The State reads both statutes in isolation to attempt to negate their actual
effect. But when Section 36.03(a)(1) is read, as it must be, in conjunction with
Section 1.07(a)(9)(F), “coercion” need not be illegal, unlawful, tortious, or even a
“true threat.” Read together, the statutes cannot be read narrowly.9
a. The State’s cases are distinguishable.
The cases cited by the State cannot save these statutes from facial invalidity.
The State’s main authority, Puckett v. State, 801 S.W.2d 188 (Tex. App.—Houston
[14th Dist.] 1990, pet. ref’d), addressed both facial and as-applied challenges to the
more narrowly drawn retaliation statute, Section 36.06(a), by a defendant who
“repeatedly stated in no uncertain terms that he would kill [the arresting officer]
impermissible as opposed to the permissible applications of the statute.
9
Section 1.07(a)(9)(F) does not require the prohibited “threat” to be unlawful, and Section
36.03(a)(1) does not require the “coercion” to be unlawful. Since the term “unlawful” is defined
by the Penal Code to mean “criminal or tortious or both and includes what would be criminal or
tortious but for a defense not amounting to justification or privilege,” Tex. Penal Code §
1.07(a)(48), it necessarily follows that Section 36.03(a)(1), when read in conjunction with
Section 1.07(a)(9)(F), covers any and all speech that can be construed as a “threat” if it otherwise
meets the requirements of Section 36.03(a)(1).
21
when he got out of jail.” Id. at 194. The court said that “it is clear that these
statements by [Puckett] could reasonably be interpreted” as a “true threat”
reflecting an “intent to kill or injure,” and hence not protected speech. Id.
Similarly, Bd. v. State, No. 03-96-00024-CR, 1998 WL 271043 (Tex. App.—
Austin May 29, 1998, pet. ref’d) (not designated for publication),10 involved a
challenge to the tampering statute, Section 36.05, in conjunction with the narrower
definition of “coercion” in Section 1.07(a)(9)(D), which criminalizes a threat “to
expose a person to hatred, contempt or ridicule.” Id. at *4 (citation and quotation
omitted). Thus, even if this unpublished opinion had any precedential value, it
does not apply to the same statutory scheme involved here. Finally, Duncantell v.
State, 230 S.W.3d 835 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d),
involved the rejection of an overbreadth challenge to the “interference with public
duties” statute, Section 38.15(a)(1) of the Texas Penal Code. The Court found that
the defendant engaged in conduct which he knew or should have known would
interrupt, disrupt, impede, or interfere with a peace officer performing a duty
imposed by law, “such as investigating an accident or arresting a criminal suspect.”
230 S.W.3d at 844. That, the court held, was “not expressive conduct protected by
the First Amendment.” Id. (emphasis added). Importantly, the court specifically
noted that Section 38.15(d) “provides that it is a defense to prosecution under the
10
Board has no precedential value under Tex. R. App. P. 47.7.
22
statute if the interruption, disruption, impediment, or interference alleged consists
of speech only.” Id. at 843 (emphasis added). Accordingly, the court stated “we
must only examine the interference statute’s limitations on conduct to determine if
it restricts a substantial amount of constitutionally protected conduct.” Id. at 844-
45 (emphasis added).
None of these cases are relevant. Governor Perry was indicted under a
materially different provision of the Penal Code, Section 36.03(a)(1), in
conjunction with the broader definition of “coercion” in Section 1.07(a)(9)(F). But
even if Puckett, Board, and Duncantell supported the State’s markedly narrow
view of First Amendment protections, they would not bind this Court because they
would be irreconcilable with the requirement that only “true threats”—which the
U.S. Supreme Court has defined as “statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful
violence”—lack First Amendment protection. Black, 538 U.S. at 359 (no
protection for cross burning that communicates threat of bodily harm or death); see
also Watts, 394 U.S. at 707-08 (no protection for threat to assassinate the President
of the United States).
Moreover, the State never acknowledges, let alone distinguishes, cases cited
by Perry and expressly relied on by the court of appeals, like N.A.A.C.P v.
Claiborne Hardware Co., 458 U.S. 886, 910 (1982), which explained that “speech
23
does not lose its protected character . . . simply because it may embarrass others or
coerce them into action.” (Emphasis added). The facts of Claiborne are
particularly instructive. There, a civil-rights boycott organizer warned that boycott
breakers would be “disciplined,” and that “if we catch any of you going into any of
them racist stores, we’re gonna break your damn neck.” Id. at 902. While such
statements “might have been understood as inviting an unlawful form of discipline
or, at least, as intending to create a fear of violence,” id. at 927, they still enjoyed
First Amendment protection because expression on public issues “has always
rested on the highest rung of the hierarchy of First Amendment values.” Id. at 913
(quoting Carey v. Brown, 447 U.S. 455, 467 (1980)); see also Org. for a Better
Austin v. Keefe, 402 U.S. 415, 419 (1971) (“The claim that . . . expressions were
intended to exercise a coercive impact on respondent does not remove them from
the reach of the First Amendment. Petitioners plainly intended to influence
respondent’s conduct by their activities; that is not fundamentally different from
the function of a newspaper.” (Emphasis added)).
Furthermore, the State relies on language in Sanchez v. State, 995 S.W.2d
677, 688 (Tex. Crim. App. 1999), noting that “verbal extortion ‘has no more
constitutional protection than that uttered by a robber while ordering his victim to
hand over the money.’” St.Br. at 7. But Sanchez—a prosecution for official
oppression by sexual harassment under Section 39.03(a)(3)—merely analogized
24
sexual harassment by a public servant to official extortion and bribery on the
ground that “the receipt of someone’s submission to sexual conduct” was
comparable to “the use of official power to obtain a benefit to which the official
was not otherwise entitled” in the form of “money or tangible property.” 995
S.W.2d at 688.11 Count II of the indictment does not allege extortion, bribery, or
receipt of a personal benefit. More importantly, any such allegations would be
irrelevant to Governor Perry’s facial challenge because the plain language of
Section 36.03(a)(1) and Section 1.07(a)(9)(F) extends far beyond extortionate
threats or bribery.
b. The court of appeals was correct that Governor Perry
did not lose his First Amendment rights by holding
public office.
The State also advances the novel claim that Governor Perry cannot make a
facial overbreadth challenge to Section 36.03(a)(1) and Section 1.07(a)(9)(F)
because, in exercising his official duties as Governor of Texas, he enjoyed no First
Amendment rights. See St.Br. at 8-10. The State cites two recognized instances of
prohibition: (1) certain government-employee speech, which is subject to no
greater First Amendment protection than the speech of private employees; and
11
In Sanchez, this Court commented that if the official oppression statute were to cover
“conduct welcomed by the recipient in a corrupt bargain,” then such conduct could also be
prosecuted under the prostitution or bribery statutes. 995 S.W.2d at 684 & n.5. Similarly, if
there were any facts supporting the State’s use of its colorful metaphors such “retaliatory act,”
“verbal extortion,” or “quid pro quo threat” then the State could have sought an indictment under
other, arguably applicable statutes.
25
(2) the concept of government speech itself. Id. The court of appeals properly
rejected both of these. Slip Op. at 63-71.
But neither of these principles has anything to do with criminalizing speech,
much less criminalizing an elected official’s political speech through the
mechanism of an overboard statute. First, from a strictly legal standpoint, facial
overbreadth analysis deals not with the statute as applied to the particular
defendant, but whether “it prohibits a substantial amount of protected speech.”
Williams, 553 U.S. at 292. Governor Perry’s own First Amendment rights are
therefore irrelevant to the resolution of his facial overbreadth challenge.
With regard to government-employee speech, the State points out that the
First Amendment generally does not protect statements made by public servants in
the course of their employment. St.Br. at 9 (citing Garcetti v. Ceballos, 547 U.S.
410, 422 (2006)). But this employee-speech “exception” is not really an exception
at all—it just makes unelected public servants, who are employees, subject to civil
employment-law standards comparable to employees in the private sector. Just
like a private employer, governmental entities “need a sufficient degree of control
over their employees’ words and actions” to ensure the “provision of public
services.” Garcetti, 547 U.S. at 418; see also Connick v. Myers, 461 U.S. 138, 143
(1983) (“[G]overnment offices could not function if every employment decision
became a constitutional matter.”).
26
The rights of those directly selected by the people to govern, such as the
Governor of Texas, are not so limited. Indeed, 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) (Texas Judicial Conduct Commission
violated First Amendment rights by censuring elected judge for public criticism of
attorney practicing in his court). “The role that elected officials play in our society
makes it all the more imperative that they be allowed freely to express themselves
on matters of current public importance.” Wood v. Georgia, 370 U.S. 375, 395
(1962) (reversing contempt conviction of elected sheriff based on criticism of
court’s grand jury investigation). The Supreme Court has expressly rejected the
idea that the First Amendment protects only the “citizen-critic” and not elected
officials as well. Bond v. Floyd, 385 U.S. 116, 136 (1966) (state legislature
violated elected representative’s First Amendment rights by refusing to seat him
based on his controversial remarks about the Vietnam War).
The State also errs by characterizing Governor Perry’s alleged threat as
“government speech” exempt from the First Amendment—as if anything uttered
by a government employee, or the Governor himself, can be criminalized without
any First Amendment analysis at all. St.Br. at 8-9. The State’s authorities for this
bizarre and frankly dangerous notion have nothing whatsoever to do with
27
criminalizing speech. They merely acknowledge that the First Amendment
generally allows the government to communicate its own particular viewpoints
without subsidizing or promoting other viewpoints to the same extent as its own.
See Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) (city could select
which monuments to place in public park); Johanns v. Livestock Mktg. Ass’n, 544
U.S. 550, 561 (2005) (federal government could choose to spend money promoting
beef consumption). The Supreme Court recently reaffirmed this doctrine in
Walker v. Tex. Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239
(2015) (Texas could constitutionally exclude from its specialty license plates
SVC’s proposed design featuring the Confederate battle flag).12 But none of these
cases authorize the government to criminalize speech by government employees or
anyone else, must less elected leaders.
Even if First Amendment protections were somehow withdrawn from
“government speech” as a general proposition, Governor Perry’s alleged threat is
not the sort of officially-sanctioned “government speech” involved in the cited
cases. His statements—which the State in its “bill of particulars” now concedes
were never made directly to Lehmberg, see March 2, 2015 SuppCR at 6, and were
12
Walker holds that “specialty license plates issued pursuant to Texas’ statutory scheme
convey government speech.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct.
2239, 2246 (2015). The Court stated that because “the government can speak for itself,” and
“[w]hen the government speaks, it is not barred by the Free Speech clause from determining the
content of what it says,” Texas could constitutionally exclude from its license plate SVC’s
proposed design and logo. Id. at 2245-46.
28
merely “implied or disguised,” see St.Br. at xvi—were not presented as the official
viewpoint of the State of Texas, but rather his own viewpoint as the Governor of
Texas. Cf. Pleasant Grove, 555 U.S. at 473-74 (city spoke through a Ten
Commandments monument when it “took ownership of that monument and put it
on permanent display in a park that it owns and manages and that is linked to the
City’s identity”); Johanns, 544 U.S. at 561 (beef promotion campaign was
government speech because the activities were “prescribed by law in their general
outline” and “developed under official government supervision”). The State wants
to have it both ways: characterizing Governor Perry’s alleged speech as the official
position of the State while at the same time prosecuting him as an individual for
expressing it.
From its faulty premise that speech by government officials enjoys no First
Amendment rights, the State also concludes that the Legislature can always limit
the speech of its own members without running afoul of the First Amendment,
even if that requires restricting some “incidental” private speech in the process.
St.Br. at 10-11. The State argues that the specific statutory language at issue
merely restricts private speech in order to express the “viewpoint” that “official
speech should not be coerced speech.” Id.
The State’s apparent argument is that Section 36.03(a)(1) and Section
1.07(a)(9)(F) express a government “viewpoint” and can therefore freely
29
criminalize any private speech made with the intent to influence the speech (or
conduct) of a public official, regardless of the words used, without further First
Amendment concerns. Section 36.03(a)(1), it must be recalled, is applicable to any
citizen, whether that citizen is a public official, a public official acting in his
individual capacity, or a private citizen.13 Thus, under the State’s argument, a
newspaper editorial expressing the personal view of the editor, which was intended
to pressure and have a “coercive impact” on a public servant, could be
criminalized, even though the First Amendment clearly protects such speech. Org.
for a Better Austin, 402 U.S. at 419 (emphasis added).
The State’s argument also mistakenly assumes that the coercion statute “is
the Texas Legislature regulating its own speech and actions.” St.Br. at 11. But the
State fails to account for the statutory exception of Section 36.03(c), which—far
from regulating the Legislature’s “own speech”—excludes from the purview of
Section 36.03(a)(1) “official actions” taken by “a member of the governing body of
a governmental entity” that are intended to influence another public servant. This
exception reflects a legislative determination that “coercion” by one public servant
against another public servant is not always or even necessarily a crime under
13
Count II specifically alleges that Governor Perry was “acting in an official capacity as a
public servant.” But the statutory language allows prosecution of a private citizen as well as a
public servant, regardless of whether the public servant is speaking in his public or individual
capacity. See e.g., Tobias v. State, 884 S.W.2d 571, 577 (Tex. App.—Fort Worth 1994, pet.
ref’d); Phillips v. State, 401 S.W.3d 282, 287-89 (Tex. App.—San Antonio 2013, pet. ref’d).
30
Section 36.03(a)(1). Indeed, when the defendant is himself or herself a certain
type of public servant (i.e., “a member of the governing body of a governmental
entity”) and the defendant takes “official action” that “influences or attempts to
influence a public servant” (i.e., the alleged victim of the “coercion”), there is no
crime under Section 36.03(a)(1). The statutory exception negates the State’s
argument here that the Legislature was attempting to limit its own speech. But
even if the State’s explanation were not so obviously wrong on so many levels, the
State never explains how the Legislature, under the guise of “regulating its own
speech,” could abrogate individual members’ constitutional rights, much less those
of private citizens throughout Texas. Both have the right to say anything to a
public servant as long as it is does not constitute a “true threat.”
Simply stated, none of the State’s arguments attempting to deflect the impact
of the First Amendment on Section 36.03(a)(1), as it incorporates the definition of
“coercion” from Section 1.07(a)(9)(F), has any merit.
6. Section 36.03(a)(1), as it incorporates the definition of
“coercion” from Section 1.07(a)(9)(F), is a content-based
restriction on speech.
The coercion statute does not target all threats against a public servant, but
only those with a certain content—i.e., “threat[s] . . . to take or withhold official
action” that “attempt to influence or influence” public servants. Tex. Penal Code
§§ 1.07(a)(9)(F), 36.03(a)(1). As such, it distinguishes “favored speech from
31
disfavored speech on the basis of the ideas or views expressed” and is clearly
content-based. Ex parte Thompson, 442 S.W.3d at 345; Ex parte Lo, 424 S.W.3d
at 15-14 In the court of appeals, the State itself conceded that Section 36.03(a)(1)
and Section 1.07(a)(9)(F) are content-based restrictions on speech. St. Br. 14-15.
Thus, “strict scrutiny” is the proper standard of review, “because, ‘as a general
matter, the First Amendment means that government has no power to restrict
expression because of its message, its ideas, its subject matter, or its content.’” Ex
parte Lo, 424 S.W.2d at 16 (quoting Ashcroft v. A.C.L.U., 535 U.S. 564, 573
(2002)). Under that standard, the statute is presumed invalid. Ex parte Thompson,
442 S.W.3d at 344-345; Ex parte Lo, 424 S.W.3d at 15.
In the court of appeals, the State disputed that strict scrutiny applied for the
same reasons it proffered that Governor Perry lacked any free speech rights. It
claimed that the presumption of constitutionality applies to the statutes because
“regulating coercive threats by public officials is distinct from regulating purely
political speech by private citizens.” St.Br. at 14-15. And it suggested that strict
scrutiny is inapplicable because “only content-based regulations on private
citizen’s speech would be held presumptively invalid and subject to strict
14
In Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2230 (2015), the Supreme Court
specifically observed that “a law banning the use of sound trucks for political speech—and only
political speech—would be a content-based regulation even if it imposed no limits on the
political viewpoints that could be expressed.” Reed further compels the conclusion that the
limitation the statutory scheme, proscribing communications by one public official to another
that threaten to take or withhold official action, is a content-based restriction.
32
scrutiny.” St.Br. at 19-20 (emphasis in original). But these attempts to divorce the
protections of the First Amendment from the government are, as has been
discussed above, incorrect.
7. Section 36.03(a)(1), as it incorporates the definition of
“coercion” from Section 1.07(a)(9)(F), fails to satisfy “strict
scrutiny.”
Under strict scrutiny, a law regulating speech or expression may be upheld
only if it is narrowly drawn to serve a compelling government interest. Ex parte
Thompson, 442 S.W.3d at 344; Ex parte Lo, 424 S.W.3d at 15-16, 19. A statute is
“narrowly drawn” if it uses the least restrictive means of achieving the government
interest.” Ex parte Thompson, 442 S.W.3d at 344; Playboy Entm’t Grp., Inc., 529
U.S. at 813; Ex parte Lo, 424 S.W.3d at 15-16, 19. Such “content-based
regulations are presumptively invalid, and ‘[i]t is rare that a regulation restricting
speech because of its content will ever be permissible.’” Ex parte Thompson, 442
S.W.3d at 348 (citing Sorrell v. IMS Health 131 S. Ct. 2653, 2667 (2011) (quoting
R.A.V. v. City of St. Paul, 505 U.S. at 382) and Entm’t Merchants Ass’n, 131 S. Ct.
2729 at 2738 (citing Playboy Entm’t Grp., 529 U.S. at 818)).
The State cannot salvage Sections 36.03(a)(1) and 1.07(a)(9)(F) by arguing
that they are the least restrictive means of achieving a compelling state interest.
Any compelling state interests are already addressed by the other types of threats
that constitute “coercion” under Section 1.07(a)(9). The State surely has a
33
compelling interest in preventing threats of unlawful or criminal acts against public
servants, but Section 1.07(a)(9)(A) already covers threats “to commit an offense.”
And while the State has a compelling interest in preventing threats of violence
against public servants, Tobias v. State, 884 S.W.2d 571, 580-81 (Tex. App.—Fort
Worth 1994, pet. ref’d), this interest is already addressed by Section
1.07(a)(9)(B)’s coverage of threats “to inflict bodily injury in the future on the
person threatened or another.” And to the extent extortionate threats against public
servants are not already covered by these prior two provisions, Sections
1.07(a)(9)(C) through (E) address threats of defamation and invasion of privacy.
In short, there is no compelling state interest left to serve by Section
1.07(a)(9)(F)’s catch-all coverage of threats “to take or withhold action as a public
servant.” The only discrete function of this provision, when combined with
Section 36.03(a)(1), is to prohibit constitutionally-protected speech.
An analogous situation was presented in Ex parte Lo, 424 S.W.3d 10 (Tex.
Crim. App. 2013), in which this Court struck down a subsection of the Penal Code
which prohibited sex-related online communications with minors. That statute
(like the one here) was a “content-based regulation” and “presumptively invalid.”
Id. at 15. According to the Court, the statute was not narrowly tailored because
“everything that [it] prohibits and punishes is speech and is either already
prohibited by other statutes (such as obscenity, distributing harmful material to
34
minors, solicitation of a minor, or child pornography) or is constitutionally
protected,” such as sexually explicit works of literature and popular television
shows and movies. Id. at 20 (emphasis in original). The same logic applies to
Sections 36.03(a)(1) and 1.07(a)(9)(F). See also Thompson, 442 S.W.3d at 349-50
(striking down as overbroad a criminal photography statute because, while the
statute had some “legitimate applications,” it “appl[ied] to any non-consensual
photograph, occurring anywhere, as long as the actor ha[d] an intent to arouse or
gratify sexual desire,” including photographs of celebrities and public sunbathers).
C. Even if the court of appeals erred in its reasoning, its judgment
was correct for other reasons.
1. Section 36.03(a)(1), as it incorporates the definition of
“coercion” from Section 1.07(a)(9)(F), is overbroad.
The court of appeals’ judgment was also correct because the statutes forming
the basis for Count II, when read together, are overbroad. See Ex parte Thompson,
442 S.W.3d at 349-351.
The court of appeals discussed the overbreadth of the statutory scheme
throughout its opinion, but did not formally declare the provisions violative of the
First Amendment overbreadth doctrine. It held only that “section 36.03(a)(1), as it
incorporates paragraph (F) of the Penal Code’s ‘coercion’ definition, is facially
invalid under the First Amendment and is thus unenforceable.” Slip Op. at 97.
As noted above, a state can outlaw threats of violence against a public
35
servant without raising any First Amendment concerns. “True threats”—which the
U.S. Supreme Court has defined as “statements where the speaker means to
communicate a serious expression of an intent to commit an act of unlawful
violence”—have no First Amendment protection. Black, 538 U.S. at 359 (no
protection for cross burning that communicates threat of bodily harm or death); see
also Watts, 394 U.S. at 707-08 (no protection for threat to assassinate the President
of the United States). Threats to commit an unlawful act are also generally not
protected. See Wurtz v. Risley, 719 F.2d 1438, 1442 (9th Cir. 1983) (no protection
for threat to commit rape); U.S. ex rel. Holder v. Circuit Court of 17th Judicial
Circuit, 624 F. Supp. 68, 71 (N.D. Ill. 1985) (no protection for threat to damage
property). And courts have also held that the First Amendment does not protect
extortion (i.e., threats of harm or defamation made to obtain a wrongful profit).
See United States v. Coss, 677 F.3d 278, 289-90 (6th Cir. 2012) (no protection for
threat to damage reputation made with intent to wrongfully obtain property); cf.
Sanchez v. State, 995 S.W.2d 677, 687-88 (Tex. Crim. App. 1999) (no protection
for sexual harassment made with intent to wrongfully obtain sexual favors); see
also State v. Strong, 272 P.3d 281, 287 (Wash. App. 2012) (noting that extortion
involves “compelling of the victim to give up property” and is thus “an extension
of theft”).
“Speech does not lose its protected character, however, simply because it
36
may embarrass others or coerce them into action.” Claiborne Hardware Co., 458
U.S. at 886 at 910. Most threats do not fall into the categories of unprotected
speech listed above and instead enjoy “broad protection” under the First
Amendment. All. to End Repression v. City of Chicago, 742 F.2d 1007, 1014 (7th
Cir. 1984). Non-extortionate threats to commit lawful action are protected by the
First Amendment, even if they influence another public servant. See State v.
Hanson, 793 S.W.2d 270, 272 (Tex. App.—Waco 1990, no pet.) (“Coercion of a
lawful act by a threat of lawful action is protected free expression.”). And courts
have recognized that “a threat to cause economic loss is not inherently wrongful.”
United States v. Jackson, 180 F.3d 55, 70 (2d Cir. 1999) (listing, as examples, a
consumer’s threat to sue for breach of warranty or file a complaint with a
consumer protection agency). Indeed, threats are “common in everyday business
and personal interactions.” State v. Weinstein, 898 P.2d 513, 515 (Ariz. Ct. App.
1995) (listing, as examples, car owner’s threat to tell friends not to patronize a
dealer unless repairs are made, a store owner’s threat to report a customer to a
credit reporting agency unless bills are paid, and a mother’s threat to report her ex-
husband to the court if he fails to pay back child support). Threats are also
common in American political discourse, often being inseparable from ideas or
advocacy. See United States v. Velasquez, 772 F.2d 1348, 1357 (7th Cir. 1985)
(giving, as an example, a threat to picket an organization to induce social or
37
political action). Even threats to commit minor criminal offenses (such as threats
of civil disobedience) can be protected speech. See Wurtz, 719 F.2d at 1442
(listing, as examples, threats of sit-ins, marches in the street, and mass picketing);
Holder, 624 F. Supp. at 70 (listing additional examples).
Given the broad protection accorded to threats under the First Amendment,
courts have not hesitated to strike down broadly-written coercion and extortion
laws on grounds of overbreadth. See, e.g., Wurtz, 719 F.2d at 1441-42 (striking
down Montana intimidation statute prohibiting threats “to commit any criminal
offense,” no matter how minor or the purpose of the threat); Holder, 624 F. Supp.
at 71 (striking down Illinois intimidation statute prohibiting threats to “commit any
criminal offense”); Weinstein, 898 P.2d at 515 (striking down extortion statute that
prohibited obtaining property by threats to expose disreputable information, which
impinged on legitimate negotiation tactics); Whimbush v. People, 869 P.2d 1245,
1247-48 (Colo. 1994) (striking down extortion statute prohibiting making any
threat to harm with intent to induce action, which improperly “covers threats of
collective action in support of group demands”); State v. Robertson, 649 P.2d 569,
589-90 (Or. 1982) (striking down coercion statute prohibiting a wide range of
threats merely intended to induce some action by another); City of Seattle v. Ivan,
856 P.2d 1116, 1120 (Wash. App. 1993) (striking down city’s coercion ordinance
which prohibited a wide range of threats merely intended to induce some action by
38
another). Other courts have given coercion and extortion statutes narrow
constructions to avoid constitutional issues. See, e.g., Jackson, 180 F.3d at 70
(construing extortion statute to only include “wrongful” threats to obtain property
from another, and recognizing that some threats to obtain property are legitimate
negotiation tactics); People v. Iboa, 207 Cal. App. 4th 111, 120-21 (2012) (statute
proscribing use of “threats” to interfere with duties of executive officer construed
as limited to “threats of unlawful violence”); State v. Pauling, 69 P.3d 331, 387-89
(Wash. 2003) (narrowing otherwise overbroad extortion statute to only include
“wrongful” threats made with intent to obtain property from another).
As written, Sections 36.03(a)(1) and 1.07(a)(9)(F) criminalize a breathtaking
amount of constitutionally protected speech. As explained above, they purport to
criminalize (with only one exception) any threat by a public servant to take any
official action as a means of merely influencing the conduct of any other public
servant.15 Importantly, the statute is not limited to threats of “unlawful” conduct,
see Tex. Penal Code § 1.07(a)(48) (defining “unlawful” as “criminal or tortious or
both”), in contrast to other similar statutes. See, e.g., id. § 36.06(a) (illegal to
“intentionally or knowingly . . . threaten[] to harm another by an unlawful act” in
retaliation for public service (emphasis added)).
15
The statute also applies to all citizens, even public servants acting in their individual
capacities, who attempt “to cause a public servant to take or withhold action” under the last
clause of Section 1.07(a)(9)(F).
39
The implications are astounding, as they would render criminal many
common scenarios in state government. For instance, a manager could not threaten
to fire or demote a government employee unless the employee increased his
productivity. A government employee could not threaten to resign unless her pay
or benefits were increased, or to file a complaint unless workplace harassment
were stopped. A judge could not threaten to sanction an attorney for the State, to
declare a mistrial if jurors did not avoid misconduct, or to deny warrants that failed
to contain certain information. An inspector general could not threaten to
investigate an agency’s financial dealings. A prosecutor could not threaten to
bring criminal charges against another public servant. A university administrator
could not threaten to withdraw funding from a professor’s research program. A
public defender could not threaten to file a motion for suppression of evidence to
secure a better plea bargain for his client. A prosecutor could not communicate to
a judge in chambers his intent to file a potentially embarrassing motion to recuse
unless the judge voluntarily recused herself. Were it not for the fact that members
of a “governing body” are excepted from the statute, even members of the House
and Senate would presumably be breaking the law when they negotiated among
themselves to resolve differences in conference committee.16 The list is virtually
16
Indeed, even a threat directed against a third party can trigger criminal liability if
intended to influence a public servant. See Phillips v. State, 401 S.W.3d 282, 289 (Tex. App.—
San Antonio 2013, pet. ref’d) (upholding conviction of 911 caller who threatened to kill
40
endless.17 Statements so intrinsic to government, particularly when they relate to
matters of public policy, lie at the core of First Amendment protection. See Meyer,
486 U.S. at 422 (First Amendment protection is “at its zenith” for core political
speech); Garrison v. La., 379 U.S. 64, 74-75 (1964) (“[S]peech concerning public
affairs is more than self-expression; it is the essence of self-government.”).
Inescapably, the plain language of Sections 36.03(a)(1) and 1.07(a)(9)(F)
prohibit a striking number of ordinary activities that involve constitutionally
protected speech, much of it political in nature. In fact, as written, the statutory
language would make the ordinary functioning of government impossible. This is
a textbook case of overbreadth.
To support its ruling, the district court below cited several cases where
Texas courts rejected facial First Amendment challenges to statutory language that
was narrowly drawn and not constitutionally overbroad. CR475-478. But these
cases deal with different statutory sections and distinguishable facts. The Second
Court of Appeals rejected a First Amendment challenge to Sections 36.03(a)(1)
and 1.07(a)(9)(A), under which a private citizen was charged with threatening to
particular police officer and thus influenced which officer a 911 dispatcher sent to the scene).
For example, a government employee who threatened a trespasser and thereby caused a nearby
peace officer to intervene would be a criminal under these provisions.
17
This list of potential implications was so compelling that the court of appeals
incorporated many of them into its opinion. Slip Op. at 58-60. And while the State’s petition
attempts to distinguish two of them, its petition nevertheless admits that “[s]ome of the court of
appeals’ hypotheticals may be valid.” State PDR at 12.
41
“commit an offense” (murder and assault) against three court-of-appeals justices.
Tobias, 884 S.W.2d at 580-82. The Fourteenth Court of Appeals upheld a
retaliation statute which prohibited “threat[s] to harm another by an unlawful act.”
Puckett v. State, 801 S.W.2d at 192 (quoting former Tex. Penal Code § 36.06(a)).
This Court upheld a harassment statute that prohibited “threat[s], by telephone or
in writing, to take unlawful action.” Collection Consultants, Inc. v. State, 556
S.W.2d 787, 792 (Tex. Crim. App. 1977) (emphasis added) (quoting former Tex.
Penal Code § 42.07(a)(2)). The Fourth Court of Appeals upheld a theft statute that
prohibited extortion i.e., “unlawfully appropriat[ing]” property by means of
“coercion” as defined in Section 1.07(a)(9)(D) and (E) (i.e., threats of defamation).
Roberts v. State, 278 S.W.3d 778, 790-93 (Tex. App.—San Antonio 2008, pet.
ref’d). Finally, this Court upheld a sexual harassment statute that prohibited public
servants from conditioning a right or privilege on submission to sexual advances—
conduct that the court analogized to extortion. Sanchez, 995 S.W.2d at 687-88.
In every one of these cases, the statutes at issue were narrowly written to
focus on unprotected speech. None of these cases stands for the broad proposition
that all threats—even those which are not “true threats”—are unprotected speech,
much less that the State has a compelling interest in preventing their
communication. And none of these cases dealt with, much less upheld, the much
broader statutory language at issue here, which is not limited to threats to
42
“unlawfully” take or withhold official action. See Tex. Penal Code § 1.07(a)(48)
(defining “unlawful” to mean “criminal or tortious or both and includes what
would be criminal or tortious but for a defense not amounting to justification or
privilege”).18
Citing Broadrick v. Oklahoma, 413 U.S. 601 (1973), the State claims the
statutory scheme’s overbreadth has not been demonstrated to be “realistic or
substantial,” because there is “no evidence that in the years since the coercion
statute was enacted, any public servant has been chilled.” State PDR at 12.
Overbreadth is an “expansive remedy” that has been provided by the Supreme
Court “out of concern that the threat of enforcement of an overbroad law can deter
or ‘chill’ constitutionally protected speech—especially when the overbroad statute
imposes criminal sanctions.” Virginia v. Hicks, 539 U.S. 113, 119 (2003) (citing
Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 634 (1980).
But the overbreadth doctrine’s concern with “chilling” protected speech
“attenuates as the otherwise unprotected behavior that forbids the State to sanction
moves from ‘pure speech’ toward conduct.” Id. at 124 (citing Broadrick, 413 U.S.
at 615). “To put the matter another way, particularly where conduct and not
merely speech is involved, we believe that the overbreadth of a statute must not
18
As the district court recognized, Governor Perry intends to assert a “public duty”
justification defense under Texas Penal Code Section 9.21 if this case ever proceeds to trial.
CR472 n.7.
43
only be real, but substantial as well, judged in relation to the statute’s plainly
legitimate sweep.” Broadrick, 413 U.S. at 615. This analysis considers “a
statute’s application to real-world conduct, not fanciful hypotheticals, and there
must be a “realistic danger that the statute itself will significantly compromise
recognized First Amendment protections of parties not before the Court. Stevens,
559 U.S. at 485.
Here, because Section 36.02(a)(1), in conjunction with Section
1.07(a)(9)(F), criminalizes only speech that does not constitute a “true threat,” this
particular statutory scheme has no plainly legitimate sweep. The determination by
the court of appeals that the “extent and nature” of the statutory scheme’s
alarmingly broad proscription on “First Amendment-protected territory” “cannot
merely be left to remedy through future case-by-case adjudication,” Slip Op. at 39,
is a recognition that the statutory scheme criminalizes a substantial amount of
protected speech in absolute terms. A fortiori, the statutory overbreadth is
“realistic or substantial,” as it includes “core political speech” for which the First
Amendment’s protections are at their “zenith.” Id. at 62.
Indeed, this is entirely consistent with United States v. Stevens, where the
Supreme Court invalidated the animal cruelty statute because it was “substantially
overbroad.” 559 U.S. 482. But it did so only after concluding that the statute was
“presumptively invalid” because it “explicitly regulates expression based on
44
content.” Id. at 468. The Court’s overbreadth analysis examined the
presumptively impermissible applications of the statute and compared them to the
permissible ones, without examining whether there was any “evidence” of a
“chilling” effect on First Amendment rights.
Finally, the court of appeals recognized the relative absence of criminal
prosecutions under Section 36.02(a)(1) and Section 1.07(a)(9)(F)—at least until
this misguided prosecution—is most probably because of Hanson’s declaration,
twenty-five years ago, that this exact statutory scheme is unconstitutional. Slip Op.
at 90. The State’s argument would seem to stand First Amendment jurisprudence
on its head, upholding the statute on the basis of a lack of “evidence” of an actual
chilling effect when in fact, the statute is aimed only at criminalizing speech
otherwise protected by the First Amendment.
The only case to address the constitutionality of the statutory language at
issue here affirmed the dismissal of an indictment which was based on a threat of
lawful conduct. See Hanson, 793 S.W.2d at 273. Hanson held that a prior version
of Section 36.03(a)(1) was unconstitutionally vague as applied to a threat of lawful
action because “[c]oercion of a lawful act by a threat of lawful action is protected
free expression,” and a reasonable person could only guess whether “the term
‘threat’ encompass[ed] a threat of lawful action or only prohibit[ed] a threat of
unlawful action.” Id. at 272 (emphasis added). While Hanson expressly declined
45
to reach the question of the statute’s overbreadth, id. at 273, its First Amendment
holding supports that challenge as well.
Text, precedent, and common sense all point to the same conclusion:
Sections 36.03(a)(1) and 1.07(a)(9)(F), in conjunction, would essentially
criminalize the ordinary give and take of politics as well as the administration of
state government, all in violation of the First Amendment and without serving any
compelling state interest. For these reasons, the statutory language is facially
unconstitutional and void, as well as overbroad. The court of appeals reached the
proper result.
2. The statutory scheme is facially void for vagueness
The coercion statute is fatally unclear about the conduct it purports to
prohibit. CR18, 35-41, 413-16. The district court reasoned, erroneously, that
because some conduct (such as threats of violence) are clearly covered by the
language of the statute, the language must survive a facial vagueness challenge.
CR479-82. But laws regulating speech are measured by stricter standards of
certainty. As with his First Amendment challenges, Governor Perry is challenging
the facial vagueness of Sections 36.03(a)(1) and 1.07(a)(9)(F) when read together,
not either standing alone.
Due process requires that criminal laws be sufficiently clear in two distinct
respects. First, a person of ordinary intelligence must be given a reasonable
46
opportunity to know what is prohibited. Long v. State, 931 S.W.2d 285, 287 (Tex.
Crim. App. 1991) (citing Grayned v. Rockford, 408 U.S. 104, 108 (1972)).
Second, the law must establish determinate, explicit guidelines to prevent arbitrary
enforcement by the government. Long, 931 S.W.2d at 287 (citing Grayned, 408
U.S. at 108-09). Thus, a statute is void for vagueness if it “either forbids or
requires the doing of an act in terms so vague that men of common intelligence
must guess as to its meaning and differ as to its application.” Ely v. State, 582
S.W.2d 416, 419 (Tex. Crim. App. 1979); Papachristou v. City of Jacksonville,
405 U.S. 156, 162 (1971).
In addition, when First Amendment freedoms are implicated, as here, the
law must be sufficiently definite to avoid chilling protected expression. Long, 931
S.W.2d at 287-88 (citing Grayned, 408 U.S. at 109). “When a statute is capable of
reaching First Amendment freedoms, the doctrine of vagueness demands a greater
degree of specificity than in other contexts.” Long, 931 S.W.2d at 287-88 (quoting
Kramer v. Price, 712 F.2d 174, 177 (5th Cir. 1983) (quotation marks omitted)).
That heightened specificity is necessary to preserve the right of free expression
because “[u]ncertain meanings inevitably lead citizens to steer far wider of the
unlawful zone than if the boundaries of the forbidden areas were clearly marked.”
Grayned, 408 U.S. at 109 (internal ellipsis and quotation marks omitted). When a
vagueness challenge involves First Amendment considerations, the usual strictures
47
of facial challenges are relaxed; a criminal statute may be held facially invalid for
vagueness even though it may not be unconstitutional in every application or even
as applied to the defendant’s conduct. Long, 931 S.W.2d at 288 (citing Gooding v.
Wilson, 405 U.S. 518 (1972)).
Sections 36.03(a)(1) and 1.07(a)(9)(F) raise a fundamental and vexing
question for any public servant19 who wishes to comply with the law: does the
statutory language actually prohibit any threat to “take or withhold action as a
public servant” that merely “influences” another public servant? As Hanson
recognized, substantial uncertainty exists about whether this language was truly
intended to embrace threats of lawful action, which are protected by the First
Amendment. See Hanson, 793 S.W.2d at 272-73 (holding this statutory language
was unconstitutionally vague as applied to threats of lawful action).20 Moreover, a
similar uncertainty exists about whether the statute was intended to cover threats of
unlawful action, as such threats are already addressed by subparts (A) through (E)
of the “coercion” definition in Section 1.07(a)(9).
Further compounding the vagueness of these sections is the fact that the
offense requires no culpable mental state. Technically, an offense could be
19
Since the statute also applies to non-public servants, the lack of notice applies to all
citizens regardless of whether they are public servants (and regardless of the capacity in which
they speak).
20
This uncertainty is heightened now because public servants might reasonably rely on
Hanson’s holding that the First Amendment protects threats of lawful action.
48
committed under these provisions whenever a public servant makes a threat “to
take or withhold [official] action,” Tex. Penal Code § 1.07(a)(9)(F), as long as the
threat merely has the effect of “influenc[ing]” another public servant. Id. §
36.03(a)(1). Indeed, the statutory language does not require that an offender even
know about the threat’s influence on the other public servant. Even a threat of
official action inadvertently heard and acted upon by another public servant could
be a criminal offense. The absence of a culpable mental state means that citizens
cannot determine whether their conduct is prohibited—a plain violation of due
process. See Colautti v. Franklin, 439 U.S. 379, 395 (1979) (statute that
criminalized killing a viable fetus held unconstitutionally vague where no scienter
was required with respect to fetus’s viability, thus creating “a trap for those who
act in good faith”); Long, 931 S.W.2d 285 at 290 (striking down harassment statute
as unconstitutionally vague in part because statutory requirement of a police report
“does little or nothing to inform an ordinary person that his conduct is forbidden
because the subsection contains no culpable mental state”; “[t]he wording of the
statute does not require the defendant to know that the victim has made such a
report” (emphasis in original)).
The vagueness of the statutory language is underscored by the fact that it
confusingly appears to characterize as “coercion” a threat that does not even rise to
the level of duress. For example, a public official who resigns under duress is
49
allowed to rescind the resignation and recover the office. Crouch v. Civil Serv.
Comm’n of Tex. City, 459 S.W.2d 491, 494 (Tex. Civ. App.—Houston [14th Dist.]
1970, writ ref’d n.r.e.). Yet had Lehmberg resigned because of Governor Perry’s
alleged veto threat, she could not have shown duress. “[A] threat to do what one
has a legal right to do, as bringing suit in court to enforce a claimed civil right,
cannot constitute duress.” Willborn v. Deans, 240 S.W.2d 791, 793-95 (Tex. Civ.
App.—Austin 1951, writ ref’d n.r.e.) (emphasis added) (holding that sheriff could
not recover his office on grounds of duress after being pressured out of office by
district attorney’s threat to bring removal proceedings). Similarly, a threat that
“delineat[es] the options available” and forces a public official to make “a
reasoned choice between two validly imposed alternatives” is not duress as a
matter of law. Van Arsdel v. Tex. A&M Univ., 628 F.2d 344, 346 (5th Cir. 1980)
(holding that university employee could not recover his position on grounds of
duress after resigning due to university’s threat to bring dismissal proceedings
against him based on accusations of sexual harassment).
The district court rejected Governor Perry’s facial vagueness challenge to
Sections 36.03(a)(1) and 1.07(a)(9)(F) without adequately addressing the substance
of that challenge. The trial court first noted that the word “threat” has established
dictionary definitions. CR480 (quoting Olivas v. State, 203 S.W.3d 341, 345-46
(Tex. Crim. App. 2006)). Most words do. But these definitions fail to resolve the
50
fundamental source of vagueness in the statutory language—i.e., whether the
“threat” described in Section 1.07(a)(9)(F) refers to threats of lawful action,
unlawful action, or both. The trial court also cited two cases which held that
threat-related language was not unconstitutionally vague. CR481. But neither of
those cases addressed the language at issue here. Tobias upheld Section
36.03(a)(1) to the extent it involved coercion under Section 1.07(a)(9)(A) (i.e.,
threats to commit an offense). See 884 S.W.2d at 580-82. Roberts upheld a statute
prohibiting theft by means of coercion under Section 1.07(a)(9)(D) and (E) (i.e.,
threats of defamation). Roberts, 278 S.W.3d at 790-93. In short, no case has
upheld the statutory language at issue here—Section 36.03(a)(1) to the extent it
involves coercion under Section 1.07(a)(9)(F) (i.e., threats to take or withhold
official action). And this language is materially broader—and vaguer—than any of
the language in the other subsections of Section 1.07(a)(9). It does not contain any
limitation to threats of “unlawful” conduct. See Tex. Penal Code § 1.07(a)(48)
(defining “unlawful” to mean “criminal or tortious or both”).
As discussed above, the only case to address this language held that it was
unconstitutionally vague as applied to threats of lawful conduct. See Hanson, 793
S.W.2d at 273. Hanson expressly declined to reach the question of facial
vagueness. Id. However, because the vagueness identified by Hanson is a
pervasive feature of the statutory language and trenches on First Amendment
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freedoms to an intolerable degree, Sections 36.03(a)(1) and 1.07(a)(9)(F) are also
facially vague.
The Legislature has enacted other statutes addressing threats against public
servants that do not suffer from these vagueness defects, if only because they
require the threats to be “unlawful.” See, e.g., Tex. Penal Code § 36.06(a) (offense
to “intentionally or knowingly . . . threaten to harm another by an unlawful act” in
retaliation for public service or to interfere with public service (emphasis added)).
But the Legislature failed to do so when it last amended and melded Sections
36.03(a)(1) and 1.07(a)(9)(F) in 1994. For the reasons given above, these
provisions are unconstitutionally vague on their face, and Count II of Governor
Perry’s indictment is void and must be dismissed.
Prayer for Relief
WHEREFORE, PREMISES CONSIDERED, Governor Perry respectfully
prays that this Court affirm the court of appeals’ judgment holding that Section
36.03(a)(1), as it incorporates the definition of “coercion” contained in Section
1.07(a)(9)(F), is facially invalid under the First Amendment, either as an
impermissible content-based restriction or as overbroad. This Court should affirm
the court of appeals’ judgment or, alternatively, hold that discretionary review was
improvidently granted because of the court of appeals’ failure to reach Governor
Perry’s facial vagueness arguments. If this Court reverses the court of appeals
52
holding as to Count II, Governor Perry prays that it engage in a de novo review of
Governor Perry’s facial vagueness arguments since they augment his First
Amendment facial challenges and thereafter order Count II dismissed. If this Court
were both to reverse the court of appeals holding as to Count II and decline to
review the facial vagueness challenge, then this Court should remand the case to
the court of appeals for its consideration of the facial vagueness challenges.
Respectfully submitted,
THE BUZBEE LAW FIRM BAKER BOTTS L.L.P.
/s/ Anthony G. Buzbee /s/ Thomas R. Phillips
Anthony G. Buzbee Thomas R. Phillips
State Bar No. 24001820 State Bar No. 00000102
JPMorgan Chase Tower 98 San Jacinto Blvd., Suite 1500
600 Travis Street, Suite 7300 Austin, Texas 78701-4078
Houston, Texas 77002 tom.phillips@bakerbotts.com
Tbuzbee@txattorneys.com Telephone: 512-322-2565
Telephone: 713-223-5393 Facsimile: 512-322-8363
Facsimile: 713-223-5909
BOTSFORD & ROARK
/s/ David L. Botsford
David L. Botsford
State Bar No. 02687950
1307 West Ave.
Austin, Texas 78701
dbotsford@aol.com
Telephone: 512-479-8030
Facsimile: 512-479-8040
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Certificate of Compliance
I hereby certify that this document contains 11,072 words in the portions of
the document that are subject to the word limits of Texas Rule of Appellate
Procedure 9.4(i), as measured by the undersigned’s word-processing software.
/s/ David L. Botsford
David L. Botsford
Certificate of Service
This is to certify that a true and complete copy of this document has been
electronically emailed to Lisa McMinn, State Prosecuting Attorney, Michael
McCrum, Attorney Pro Tem, and to Mr. David Gonzalez, Assistant Attorney Pro
Tem on the same date it was electronically filed with the Clerk of the Court of
Criminal Appeals.
/s/ David L. Botsford
David L. Botsford
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