PD-1067-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
November 13, 2015 Transmitted 11/12/2015 4:32:57 PM
Accepted 11/13/2015 12:25:07 PM
ABEL ACOSTA
No. PD-1067-15 CLERK
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
Ex parte James Richard “Rick” Perry
Appeal from Travis County
* * * * *
STATE’S RESPONSE TO APPELLANT’S BRIEF ON THE MERITS
ADDRESSING THE STATE’S PETITION FOR DISCRETIONARY REVIEW
* * * * *
LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No. 13803300
P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
512/463-1660 (Telephone)
512/463-5724 (Fax)
TABLE OF CONTENTS
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
i
INDEX OF AUTHORITIES
Cases
Virginia v. Black, 538 U.S. 343 (2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5n
Nevada Commission on Ethics v. Carrigan, 131 S. Ct. 2343 (2011).. . . . . . . . . . . 4
N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982). . . . . . . . . . . . . . . 6, 7
Ex parte Fornier, __S.W.3d__, No. WR-82,103-01
(Tex. Crim. App. 2015).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
State v. Johnson, __S.W.3d ___, No. PD-0228-14 (Tex. Crim. App. 2015). . . . . . 2
Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971). . . . . . . . . . . . . 6, 7
Ex parte Lo, 434 S.W.3d 10 (Tex. Crim. App. 2013).. . . . . . . . . . . . . . . . . . . . . 2, 3
New York State Club Association v. City of New York, 487 U.S. 1 (1988). . . . . . 2n
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 5
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). . . . . . . . . . . . . . . . . . . . . . . . . . 2n
United States v. Stevens, 559 U.S. 460 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
Members of City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789 (1984).. . . . . . . . . . . . . . . . . . . . . . . . 2n
Thomas v. Collins, 323 U.S. 526 (1945). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Washington State Grange v. Washington State Republican Party,
552 U.S. 442 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2n
Watts v. United States, 394 U.S. 705 (1969).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ii
United States v. Williams, 553 U.S. 285 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Codes
TEX. PENAL CODE §1.07(a)(9)(F). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Other
http://www.supremecourt.gov/oral_arguments
/argument_transcripts/07-869.pdf.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2n
iii
No. PD-1067-15
TO THE COURT OF CRIMINAL APPEALS
OF THE STATE OF TEXAS
Ex parte James Richard “Rick” Perry
* * * * *
STATE’S RESPONSE TO APPELLANT’S BRIEF ON THE MERITS
ADDRESSING THE STATE’S PETITION FOR DISCRETIONARY REVIEW
* * * * *
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
The State Prosecuting Attorney respectfully presents her Response to
Appellant’s Brief on the Merits Addressing the State’s Petition for Discretionary
review.
Overbreadth Test
While the text of the First Amendment is straightforward, the caselaw and
doctrines applying it are not.1 Appellant’s overbreadth analysis includes components
1
Even Supreme Court justices grapple with First Amendment issues. During a
2008 oral argument, Justice Breyer admitted having a “deep misunderstanding of the
1
of the test for a facial challenge. See Appellant’s Brief on the Merits Addressing the
State’s Petition for Discretionary Review at 19-20, 31-35 (arguing the statute is
content-based, presumptively invalid, and not narrowly tailored).2 He contends this
is a proper overbreadth analysis under United States v. Stevens, 559 U.S. 460 (2010);
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); and Ex parte Lo, 434 S.W.3d 10 (Tex.
Crim. App. 2013). Caselaw from both the Supreme Court and this Court have been
unclear and inconsistent.
Ex parte Lo misplaced the burden of proof and conflated the test for facial
unconstitutionality with the standard for First Amendment overbreadth. 434 S.W.3d
at 14, 24. In State v. Johnson, __S.W.3d ___, No. PD-0228-14 (Tex. Crim. App.
content-based test.” Ysura v. Pocatello Education Association, No. 07-869, Oral
A r g u m e n t T r a n s c r i p t , a t 3 2 , F o u n d a t
http://www.supremecourt.gov/oral_arguments/argument_transcripts/07-869.pdf
“I know it’s all over the law, but I’ve never understood it.” Id. Shortly after Justice
Breyer’s comment, Chief Justice Roberts stated, “Since we are in confessional mode,
I’ve never understood forum analysis.” Id. at 33.
2
A typical First Amendment challenge to the facial constitutionality of a statute
claims that the statute is unconstitutional in all of its applications. New York State
Club Association v. City of New York, 487 U.S. 1, 11 (1988); Members of City
Council v. Taxpayers for Vincent, 466 U.S.789, 797-98 (1984). Therefore, it has no
“legitimate sweep.” Washington State Grange v. Washington State Republican Party,
552 U.S. 442, 449 (2008). If the restriction on speech is content-based, strict scrutiny
applies, i.e., the burden is on the State to show the statute is narrowly tailored to
achieve a compelling governmental interest. Reed v. Town of Gilbert, 135 S. Ct.
2218, 2231 (2015).
2
2015), this Court recited the correct test and properly placed the burden on the
defendant to prove overbreadth. Slip op. at 6. But since Johnson, the Court has
recited a portion of Ex parte Lo’s faulty overbreadth analysis. See Ex parte Fornier,
__S.W.3d__, No. WR-82,103-01, Slip op. at 2 (Tex. Crim. App. 2015) (“Although
the State had a compelling interest in protecting children from sexual predators, §
33.021(b) was not narrowly drawn “because there are narrower means of achieving
the State interests advanced here, at least some of which are already covered by other
statutes.”).3 Unfortunately, this Court has not acknowledged or disavowed Ex parte
Lo’s faulty analysis. Until it does, that analysis will continue to confound the bench
and bar.
Contrary to Appellant’s argument, in an overbreadth analysis, whether the
statute is content-based is not relevant. That is because content-based restrictions on
speech are permitted for a “few historic and traditional categories of expression long
3
Judge Yeary’s dissenting opinion explicitly distinguished the two doctrines,
stating, “I believe it important to recognize that the ordinary rule—requiring that a
litigant challenging a legislative enactment as unconstitutional on its face ‘must
establish that no set of circumstances exists under which the [challenged statute]
would be valid[,]’—does not apply to First Amendment overbreadth challenges. A
penal provision does not have to be unconstitutional in all of its applications in order
for an appellate court to declare it facially unconstitutional under the First
Amendment's overbreadth doctrine.” Id. Slip op. at 4 (Yeary, J., dissenting) (citation
omitted, bracketed material in original).
3
familiar to the bar.” Stevens, 559 U.S. at 468. These restrictions do not “abridg[e]
the freedom of speech” within the meaning of the First Amendment because similar
laws existed at the time it was ratified. Nevada Commission on Ethics v. Carrigan,
131 S.Ct. 2343, 2348 (2011). These categories of speech, including “fighting words,”
are deemed “constitutionally proscribable” even though they are not content-neutral.
R.A.V., 505 U.S. at 382, 383-84, 387 (“Even the prohibition against content
discrimination that we assert the First Amendment requires is not absolute. It applies
differently in the context of proscribable speech than in the area of fully protected
speech.”).
Content-based restrictions on proscribable speech can violate the First
Amendment if written in such a way that they also criminalize a substantial amount
of speech that is not proscribable. This is the First Amendment overbreadth test. As
an example, a statute that forbids both “fighting words” and speech that is “mean or
hurtful” restricts both proscribable and non-proscribable speech. If the restriction on
non-proscribable speech is substantial and creates a realistic risk of chilling protected
speech, it is susceptible to an overbreadth determination.
In addition to being overbroad, a content-based restriction that is limited to
only proscribable speech can violate the First Amendment if the restriction is not
viewpoint neutral. In R.A.V., the Court overturned a ban on placing a “burning cross
4
or Nazi swastika,” known to “arouse anger, alarm or resentment in others on the basis
of race, color, creed, religion or gender.” 404 U.S. at 381. Even though the statute
was clearly aimed at “fighting words” it disfavored a particular viewpoint. Id. at 386-
87. In that sense, the statute was too narrow.4 But R.A.V. was not an overbreadth
case.5 And the issue before this Court in the State’s petition is limited to overbreadth.
Regardless, the statute in this case passes muster under the R.A.V. formulation
because it is viewpoint neutral.
The coercion of a public servant statute criminalizes coercive threats. Even
though such threats are expressive, the statute is aimed more at conduct than at
speech. See R.A.V., 404 U.S. at 389 (“Words can in some circumstances violate laws
directed not against speech but against conduct (a law against treason, for example,
is violated by telling the enemy the Nation’s defense secrets.”)). And its restriction
is viewpoint-neutral because it does not favor a particular position. The statute bans
4
The Court later upheld a statute forbidding cross-burning with intent to
intimidate that did not refer to race, color, creed, religion or gender. Virginia v.
Black, 538 U.S. 343, 362-63 (2003).
5
The lower court held that the statue was not overbroad because it addressed only
fighting words–speech that is not protected by the First Amendment. 505 U.S. at
380-81. It also held that the ordinance was not impermissibly content-based because
it was narrowly tailored to accomplish a compelling state interest. Id. at 381. The
Supreme Court granted certiorari on the overbreadth question, but the majority, in
addressing whether the ordinance was viewpoint-discriminatory, acknowledged that
the question did not involve “a technical ‘overbreadth’ claim.” Id. at n. 3.
5
coercive threats regardless of the philosophical, political, religious, or social bent of
the coercer or the action he is attempting to influence. It is only the mode of
communication that is restricted. “The reason why fighting words are categorically
excluded from the protection of the First Amendment is not that their content
communicates any particular idea, but that their content embodies a particularly
intolerable (and socially unnecessary) mode of expressing whatever idea the speaker
wishes to convey.” Id. at 393.
To determine the constitutionality of a statute, it is necessary to fully construe
it. But whether it: 1) regulates speech vs. conduct, 2) is content-based, or 3) is
viewpoint-neutral does not otherwise affect the overbreadth calculus. Overbreadth
involves a simple weighing of protected and unprotected expression. Only when a
statute is challenged for having no permissible applications under the First
Amendment, i.e., a typical facial unconstitutional claim, does “strict scrutiny,”
“compelling interest,” and “least restrictive means” become relevant.
Merits
Appellant cites N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982),
and Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), in support of his
claim that coercive speech is not proscribable. Appellant’s Brief on the Merits
Addressing the State’s Petition for Discretionary Review at 23-24, 37. However,
6
these cases dealt with citizens picketing or leafleting against businesses – speech that
the Court determined was protected despite its coercive nature. Claibourne
Hardware Co., 458 U.S. at 910; Keefe, 402 U.S. at 419. The Supreme Court did not
hold that all coercive speech is protected by the First Amendment. In fact, in a
different context, it has recognized a constitutional limit on an employer’s right to use
coercive speech to persuade his employees with regard to union membership.
Thomas v. Collins, 323 U.S. 526, 537-38 (1945). Furthermore, the type of coercion
at issue in this case is very specific, “a threat, however communicated, to take or
withhold action as a public servant...” TEX. PENAL CODE §1.07(a)(9)(F).
Appellant also contends that the threats forbidden by the coercion statute are
not “true threats” under Watts v. United States, 394 U.S. 705 (1969), and thus do not
survive First Amendment scrutiny. Appellant’s Brief on the Merits Addressing the
State’s Petition for Discretionary Review at 23, 36. Watts is not controlling. Watts
was charged with threatening to kill the President of the United States. Unlike the
offense in Watts, the coercion of a public servant statute does not attempt to prosecute
the threat alone. Rather, it criminalizes the use of a threat as a means of influencing
a public servant in the exercise of a specific duty. The threat is merely an element –
not a stand-alone offense.
Appellant’s brief includes hypotheticals covered by the statute, which he
7
contends would be constitutionally protected. Appellant’s Brief on the Merits
Addressing the State’s Petition for Discretionary Review at 40. Some of these were
incorporated into the court of appeals’ opinion and addressed in the State’s brief.6
But even if some of these hypotheticals are covered by the statute, any potential for
a realistic chilling effect is belied by the absence of evidence that this type of conduct
has ever been prosecuted. See United States v. Williams, 553 U.S. 285, 302 (2008)
(because there had been no prosecutions for the hypotheticals posed, “[w]e can hardly
say, therefore, that there is a ‘realistic danger’ that [the statute] will deter such
activity.”).
Finally, Appellant’s vagueness argument7 is not properly before the Court
because the court of appeals did not address it and Appellants’ PDR did not raise it.
If this Court rules in the State’s favor on overbreadth, it can remand for the court of
appeals to address vagueness.
6
See State’s Brief on the Merits of the States Petition for Discretionary Review at
13-14.
7
Appellant’s Brief on the Merits Addressing the State’s Petition for Discretionary
Review at 46-52.
8
PRAYER FOR RELIEF
WHEREFORE, the State of Texas prays that this Court reverse that part of the
decision of the court of appeals holding TEX. PENAL CODE § 36.03(a)(1),
incorporating TEX. PENAL CODE §1.07(a)(9)(F), unconstitutionally overbroad and
otherwise affirm its decision.
Respectfully submitted,
/s/ LISA C. McMINN
LISA C. McMINN
State Prosecuting Attorney
Bar I.D. No. 13803300
P.O. Box 13046
Austin, Texas 78711
information@spa.texas.gov
512/463-1660 (Telephone)
512/463-5724 (Fax)
9
CERTIFICATE OF COMPLIANCE
The undersigned certifies that according to the WordPerfect word count tool,
this document contains 2250 words.
/s/ LISA C. McMINN
LISA C. McMINN
State Prosecuting Attorney
10
CERTIFICATE OF SERVICE
The undersigned certifies that on this 12th day of November 2015, the State’s
Response to Appellant’s Brief on the Merits Addressing the State’s Petition for
Discretionary Review was served via certified electronic service provider to:
Anthony G. Buzbee
Tbuzbee@txattorneys.com
David L. Botsford
dbotsford@aol.com
Thomas R. Phillips
tom.phillips@bakerbotts.com
Michael McCrum
michael@McCrumlaw.com
David Gonzalez
david@sg-llp.com
/s/ LISA C. McMINN
LISA C. McMINN
State Prosecuting Attorney
11