concurring.
The decisions of five justices in two opinions are based on the fundamentally flawed premise that the Free Expression Clause of the Texas Constitution, Tex. Const, art. I, § 8, is in some relevant way “broader” or more protective of free expression than the First Amendment to the United States Constitution. Because of this alleged greater breadth, a majority of the Court strikes down the trial court’s order.
I disagree that our clause is “broader” than its federal counterpart in any sense that affects this case. In fact, I am not certain that the order of the trial court below violates the Texas Constitution in any respect. Only because I conclude that the order violates the guarantees of the First Amendment do I join in the Court’s judgment discharging the Relators. Accordingly, I write separately.
I.
A.
The comparative breadth construct to which the Court adheres can mean very different things to different beholders. Here, it does not dissuade Justice Gonzalez from recognizing the fundamental dichotomy between direct and indirect governmental regulation, long a starting point in most state and federal analyses of free speech. It does lead him, however, to require a higher countervailing interest to justify in restricting speech than do the federal courts or most state courts. In contrast, the doctrine leads the plurality to erect a test that, as Justice Gonzalez explains, virtually eviscerates the notion of protecting any competing interests or rights that are harmed by speech. Both writings, however, purport to rely on Davenport v. Garcia, 834 S.W.2d 4 (1992), in which this Court first adopted the comparative breadth construct.
One obvious reason for such divergent results is that comparative breadth is not a one-dimensional concept. In the free expression context, for example, a constitutional provision may be “broad” or “narrow” on at least six axes, including: 1) the types of expression deemed protected, 2) the range of potential infringers against which the provision is operable, 3) the range of potential persons and entities who may invoke the protection, 4) the type of permissible restrictions and sanctions on free expression, 5) the degree of importance necessary for a competing interest or right to restrict free expression, and 6) how narrowly the infringement on free expression must be tailored to accommodate that competing interest or right. Thus, to pronounce one free expression clause as broader than another is, standing alone, of little help.
As to any axes along which breadth may appropriately be measured in this case, I maintain that the Texas Free Expression Clause is not “broader” than the corresponding guarantee of the First Amendment.1 A closer examination of our provi*17sion demonstrates why I reject the Court’s conclusion, and why I find it necessary only to reach Relators’ First Amendment claims.
B.
Article I, Section 8 reads as follows:
Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publications of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases,
¶⅛ Const, art. I, § 8.
It seems obvious that no provision which expressly recognizes criminal libel prosecutions can be read as approaching Justice Black’s absolutist vision of free expression. The unadorned text, however, does not reveal whether this guarantee should properly be read as any “broader” in protecting Relators’ free expression rights than the prevailing understanding of the First Amendment.2 To make such a determination, we must search for the import of terms like “liberty,” “speak, write or publish,” “subject,” “responsible,” “abuse,” “law,” and “curtailing,” as they relate to the provision as a whole. Only after we make an independent determination of our *18guarantee’s meaning should we attempt to compare its reach with another guarantee.
To interpret any provision of the Texas Constitution, we start with our recent pronouncement in Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391, 394 (Tex.1989):
In construing [a section of the Texas Constitution], we consider “the intent of the people who adopted it.” [citations omitted] In determining that intent, “the history of the times out of which it grew and to which it may be rationally supposed to have direct relationship, the evils intended to be remedied and the good to be accomplished, are proper subjects of the inquiry.” [citation omitted] However, because of the difficulties inherent in determining the intent of voters over a century ago, we rely heavily on the literal text. We seek its meaning with the understanding that the Constitution was ratified to function as an organic document to govern society and institutions as they evolve through time, [citation omitted]3
In applying this standard to Article I, Section 8, I thus look to the literal text, to the general historical context from which it arose, to the sources from which our framers derived it, to their deliberations in choosing it, to the understanding of the voters in adopting it, to its development in the judicial opinions of this and other states, and to its need to serve an evolving and expanding society. See Tex. Const, art. I, § 29 (“... we declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate_”). I also look to the entire provision and the relationship between its component parts, not, as do the plurality and concurrence, merely to the first clause of the first half of the first sentence. After all, the whole guarantee, although separated into two adjoining sections in prior Texas Constitutions, was combined by the framers of the current Constitution into a single section, presumably for a reason.
Finally, I consider also the experience of other jurisdictions, many of whom share similar free expression guarantees. Closely corresponding provisions existed in thirteen of the 25 American states at the time of our 1836 Independence Convention, including every state which had joined the Union after 1791. By our 1875 Convention, 26 of the 36 other states had such a clause, as do 36 of the 49 other states today.4 I am convinced that our language reflects not an attempt to glorify “all that is unique to Texas,” Davenport, 834 S.W.2d at 22, but a conscious desire to examine “the action of the other States” and “profit by their example and experience.” Debates of the Texas Convention of 1845 at 89 (William F. Weeks, reporter) (1846) (remarks of Delegate Isaac Van Zandt of Harrison County).5
*19With these general principles in mind, I turn to the words of our guarantee to determine “the evils intended to be remedied and the good to be accomplished.” Edgewood, 777 S.W.2d at 394.
II.
A.
Article I, Section 8, begins as follows: Every person shall be at liberty to speak, write, and publish his opinions on any subject, being responsible for the abuse of that privilege_
By its plain terms, this portion of the guarantee both grants and limits the freedom of expression, for one may later be called to account for exercising the “privilege” of the “liberty” of expression. The language derives from the eighteenth century right at English common law to publish books and pamphlets without prior government approval. See generally FREDERICK Seaton Siebert, Freedom of the Press in England 1476-1776: The Rise and Decline of Government Controls (1952); Philip Hamburger, The Development of the Law of Seditious Libel and the Control of the Press, 37 Stan.L.Rev. 661 (1985). This English “liberty of the press,” while no doubt advanced in its time, was a far cry from modern notions of free expression. See Jonathan Emord, Freedom, Technology, and the First Amendment (1991). It was truly a situation of “let the publisher beware,” for the mere absence of censors afforded no protection against a myriad of common law and statutory mechanisms by which an expression could be sanctioned after publication. As Blackstone explained:
[Wjhere blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by English law ... the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matters when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity_ Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating or making public of bad sentiments, destructive of the ends of society, is the crime which society corrects.
4 William Blackstone, Commentaries 151-52 (emphasis in original). Some of these very words were enshrined in the speech and press guarantees of the Pennsylvania Constitution of 1790.6 What “Blackstone thus recognized as the law of England came to be ... an established constitutional right in Pennsylvania as to both speech and press.” William Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 173 A.2d 59, 62 (1961), cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961). This language eventually spread to most other American states,7 and has been included in all the constitutions of Texas.8
Under the Blackstonian view, disfavored expression, once uttered or published, could be punished not only by private civil ac*20tions, but also, if written, by criminal libel actions for criticisms of individuals or entities (“private libel”), of the government or its officials (“seditious libel”), of the church (“blasphemous libel”), or of the “laws or nature” or “public morality” (“obscene libel”). See Thomas CoopeR, TREatise on the Law of Libel and the Liberty of the Press 58-61 (1822); see also Francis L. Holt, The Law of Libel 51 (1812); Blackstone, 4 Commentaries at 151. Although libel defendants theoretically enjoyed the benefits of trial by jury, the courts largely nullified this protection by deciding the most crucial issues of the case. Cooper, Treatise on the Law of Libel and the Liberty of the Press 95; George W. Cooke, Treatise on the Law of Defamation 31 (1846). About all that the jury could ever decide was whether the defendant did in fact disseminate the writing (“publication”), the sense in which the words in question should be read (“innuendo”), or whether the writing was “of and concerning” the victim (“colloquium”). In criminal actions, moreover, truth was not a defense, because all utterances damaging to one’s reputation, particularly those which were accurate, were considered to have the tendency to create animosities and to disturb the public peace by provoking violent retaliation. Blackstone, 4 Commentaries at 150. Thus, the general rule became “the greater the truth, the greater the libel.” See W. Blake Odgers, Odgers on Libel and Slander 340 (1881).
During the many constitutional conventions convened in Texas in the nineteenth century, debate centered not on whether to abandon this basic common law structure, but on whether or how to modify it. The real questions were what defenses to criminal libel prosecutions should be enshrined and what issues should be reserved for the jury in such actions. As for the “liberty to speak, write, or publish,” its meaning as a restriction only against prior restraint was well understood. As one framer explained: “[T]he government which fails to protect character from unjust and unprovoked aspersion, is as imperfect as one that fails to protect life. The one is as dear as the other, and ought as much to be placed under the protecting shadow of the law.” 1845 Debates at 93 (Remarks of Delegate Yolney E. Howard of Bexar County). Expression was thus a conditional right, whose exercise in no way excused responsibility.
One could dismiss our forbears’ use of Blackstonian language as an historical anomaly, except that the English common law formulation was but one extant tradition of free expression. Even in eighteenth century England, many of Blackstone’s contemporaries argued that the liberties of speech and press should be defined much more broadly. Grounding their views in the earlier work of philosophers like Milton, Locke, and Spinoza, the radical Whigs argued that society and government actually benefitted, rather than suffered, from vigorous debate. Trenchard and Gordon, who published Cato’s Letters in the London Journal from 1720 to 1723, argued for a broad right to express oneself without fear of consequences. See Essay No. 15, On Freedom of Speech; That the Same is Indispensable from Publick Liberty (Feb. 4,1720), in Jonathan Trenchard and Thomas Gordon, Cato’s Letters 100 (L. Levy ed. 1971); see generally William T. Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression, 84 Co-lum.L.Rev. 91 (1984).
The radical Whig view enjoyed broad support in colonial America, where an especially vigorous press regularly defied the law by criticizing their local royal governments. See, e.g., Arthur M. Schlesinger, Prelude to Independence: The Newspaper War On Britain 1764-76 (1958); David A. Anderson, The Origins of the Press Clause, 30 U.C.L.A. L.Rev. 455, 512-13 (1983). Many historians even believe that, by the commencement of the Revolution, the American notion of speech and press liberty was closer to Cato’s than Blackstone’s. They point to the Address to the Inhabitants of the Province of Quebec, where the Continental Congress in 1774 expounded on free expression as one of the “fundamental rights of the colonists”:
The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the ad*21vancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiment on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officials are shamed into more honorable and just means of conducting affairs.
1 Journals op the Continental Congress 1774-1789 at 108 (1968). Moreover, nine of the thirteen original states adopted Revolutionary constitutions with some free press guarantee,9 and none used the crabbed terms of the English common law. Many scholars have suggested that this more expansive approach was also embodied in the First Amendment to the United States Constitution, which was sent to the states by Congress in 1789 and became effective two years later.10
By contrast, there is little doubt about the intent and effect of the free speech provision of the 1790 Pennsylvania Constitution, the paradigm for the Texas guarantee. The entire 1790 Constitution was unquestionably a triumph for conservative commercial interests and their allies and a defeat for radical Whigs and their allies, who championed the Constitution of 1776. See Rosalind L. Brannines, Pennsylvania Constitutional Development 9-20 (1960); Robert L. Brunhouse, The Counter-Revolution in Pennsylvania, 1776-1790 (1942). The free expression clause was no exception to that trend. See Anderson, 30 U.C.L.A.L.REV. at 490 n. 211.
Even those who claimed that the First Amendment placed stringent restrictions on the federal government recognized the states’ greater authority to regulate expression. As President Jefferson explained to Abigail Adams in 1804:
Nor does the opinion of the unconstitutionality and consequent nullity of [the Sedition Act of 1798] remove all restraint from the overwhelming torrent of slander which is confounding all vice and virtue, all truth and falsehood in the US. The power to do that is fully possessed by the several state legislatures. It was reserved to them, and was denied to the general government, by the constitution according to our construction of it. While we deny that Congress have a right to controul [sic] the freedom of the press, we have ever asserted the right of the states, and their exclusive right, to do so_ In general the state laws appear to have made the presses responsible for slander as far as is consistent with their useful freedom.
Letter, Thomas Jefferson to Abigail Adams, September 11, 1804, in 1 The Adams-Jefferson Letters 279 (Lester J. Cappon ed., 1959).
Texas courts have traditionally adhered to this limited view of the state’s free expression guarantee. As was explained in Ex parte Tucker, 110 Tex. 335, 220 S.W. 75 (1920):
The purpose of this provision is to preserve what we call “liberty of speech” and the “freedom of the press,” and at the same time hold all persons accountable to the law for the misuse of that liberty or freedom. Responsibility for the abuse of that privilege is as fully emphasized by its language as that the privilege itself shall be free from all species of restraint ... Punishment for the abuse of the right, not prevention of its exercise, is what the provision contemplates.
220 S.W. at 76. Thus, prior restraint is always prohibited, assuming the expression *22does not rise to the level of “conduct,” 11 but the government can require accountability for expressions, once made, that constitute “abuse” of the privilege of free expression. As the Court in Davenport reiterated: “[U]nder our broader guarantee, it has been and remains the preference of this Court to sanction a speaker after, rather than before, the speech occurs.” Davenport, 834 S.W.2d at 9.
B.
The Texas Free Expression Clause provides an additional guarantee in the second clause of the first sentence:
[A]nd no law shall ever be passed curtailing the liberty of speech, or of the press.
This provision, which has also been included in every adopted Texas Constitution,12 enjoys far less general acceptance in other American jurisdictions. Only four states had similar language in 1836, and only 16 other states had it when the Constitution of 1876 was framed. Even today, fewer than half the states afford such protection in their constitutions.13
As with the first clause, the delegates to the various Texas constitutional conventions expended little effort in framing this language. In all probability, the text was borrowed, directly or indirectly, from the First Amendment to the United States Constitution. Cf. SHAD Alliance, 498 N.Y.S.2d at 101, 488 N.E.2d at 1213, and authorities cited therein. What the framers and ratifiers originally intended to protect by these words is less certain.
Both the Connecticut and Wisconsin supreme courts, for example, have recently concluded that similar language in their constitutions serves only to modify or supplement a more general right of free expression articulated in the “liberty and responsibility” clause. In Cologne v. Westfarms Assoc., the Connecticut Supreme Court looked to contemporary newspaper reports of the 1818 constitutional convention to conclude that the framers viewed the clause as:
applying] only to the passage of laws restraining freedom of speech or press and ... not by its terms affordpng] protection ... against restrictions upon the exercise of those rights which government officials may impose whether or not sanctioned by law.
469 A.2d at 1209 (emphasis added). Even under a more modern conception of “law,” the Wisconsin Supreme Court in Jacobs v. Major, explained:
The two independent clauses ... are related to each other with [the liberty and responsibility formulation] expressing the right to free speech and the second stating the entity, the state, against whom the right is shielded.
407 N.W.2d at 837.
Furthermore, the available history suggests that this language was not viewed by many framers as particularly protective of free speech. The framers of the Wisconsin Constitution of 1846, for example, rejected as too indefinite a proposed provision mo-delled on the First Amendment protections of free speech, petition, and assembly. See Jacobs v. Major, 407 N.W.2d at 849 (Abrahamson, J., concurring and dissenting); State HistoRical Society of Wisconsin, The Convention of 1846 at 365 (Milo M. Quaite ed., 1919). At the Pennsylvania Convention of 1790, Delegate Henry Miller, who consistently voted against expanding the liberty of expression, wanted to substitute language similar to this clause (“no law *23shall ever be passed abridging the freedom of speech or of the press”) for the detailed Pennsylvania guarantee. Minutes of the Convention of the Commonwealth of Pennsylvania 383 (1790); see id. at 166,174. At the Texas Constitutional Convention of 1845, Delegate Lemuel D. Evans of Fannin County, always a vigorous advocate of free expression rights,14 moved unsuccessfully to strike the entire clause. 1845 Debates at 73. Similarly, at the Reconstruction Convention of 1868, Delegate R.K. Smith of Galveston County, who voted with the Radical Republicans to replace most of the Texas bill of rights with the exact language of the federal bill of rights,15 also moved unsuccessfully to strike this clause. 1 Journal of the Reconstruction Convention of 1868 at 663 (1870). That Miller favored such language, while Evans and Smith opposed it, is circumstantial evidence of the relative importance placed on these words in the eighteenth and nineteenth centuries.
Furthermore, it must be remembered that, whatever its original purpose, during the time our constitutions were framed the free expression guarantees of the First Amendment were generally applied only to forbid prior restraints. See, e.g., Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879 (1907); Theophilus PaRsons, The Political, Personal, and Property Rights of A Citizen of the United States 169 (1874), quoted in, Emord, Freedom at 87-90; Joseph Story, Commentaries on the Constitution of the United States § 993, at 703-04 (1833). For all practical purposes, therefore, the state and federal guarantees were regarded as the same. See Ex parte Tucker, 220 S.W. at 76 (“The experience of the English nation and some of the American colonies under the tyranny of [licensing] systems is the reason [the ban on prior restraints] is one common to the Constitutions of the American States, and for its incorporation, in like words, in the First Amendment to the Federal Constitution”). While the federal experience demonstrates the elasticity of these elegant words, no Texas case has yet suggested that the second clause imparts protection greater than either the “liberty and responsibility” clause or the First Amendment, or that it modifies the state’s ability to impose punishment for expressions deemed an “abuse.” See id.
C.
The next clause of Article I, Section 8 provides as follows:
In prosecutions for the publications of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence.
Ironically, because the United States Supreme Court now apparently interprets the First Amendment to prohibit criminal sanctions for any true statement, see Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); see also Gertz v. Welch, 418 U.S. 323, 346-48, 94 S.Ct. 2997, 3010-11, 41 L.Ed.2d 789 (1974); Farnsworth v. Tribune Co., 43 Ill.2d 286, 253 N.E.2d 408, 411-12 (1969); Commonwealth v. Armao, 446 Pa. 325, 286 A.2d 626, 629, *24632 (1972), the provisions of the third clause fail to resonate with modern concepts of free expression. But our framers “accepted the concept that a republican form of government can be politically libeled and that the offender should be criminally prosecuted.” Levy, Emergence of a FREE Press at 212 (discussing Pennsylvania Constitution of 1790). To them, in fact, this language was the key provision in deciding how much constitutional protection to accord free expression. Thus, we must examine the history and development of this clause to understand the underlying intent of the entire guarantee.
By departing from the common law rule that even true statements could be punishable if they tended to incite or offend, the framers and ratifiers made an implicit policy determination that the value of some types of utterances would outweigh any harm they might cause to government stability or personal reputation. What interests were sufficiently important to require a truth defense generated more discussion and more motions than did the framing of all other components of our free expression clause combined.
When our constitutions were written, three distinct formulations regarding evidence of truth in libel trials existed. The first, originating in the Pennsylvania Constitution of 1790, restricted the admissibility of truth solely to a few narrow categories of statements related to public and governmental affairs.16 The second, appearing first in the New York Constitution of 1821, was more open-ended, providing a complete defense to when the speaker acted “with good motives and justifiable ends.”17 The third, appearing first in the Mississippi Constitution of 1817, simply permitted evidence of truth in all libel prosecutions.18
By 1836, ten states had adopted the Pennsylvania model and three the New York model, but only two followed the Mississippi model, which had even been abandoned in that state.19 Yet the Constitution of the Republic of Texas adopted language almost identical to the original Mississippi clause:
In all prosecutions for libels, the truth may be given in evidence.
Tex. Const., Dec. of Rights § 5 (1836). It was, for its time, a markedly liberal pronouncement.
When Texas, in compliance with the joint resolution of Congress for annexation, 5 Stat. 797, adopted and ratified its first state constitution, the framers rejected the earlier formulation in favor of a Pennsylvania-type clause:
In prosecutions for the publications of papers investigating the conduct of officers, or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence.
Tex. Const, art. I, § 6 (1845). This decision reflected the framers’ rejection of a broad commitment to a vigorous, untrammeled press. “What good can be subserved, what benefit arise,” asked Delegate James Love of Galveston County, from the public discussion of “every little indiscretion which may occur in the community?” The press had “no business whatever to enter into private character; let them confine their strictures and remarks to the public officers of the government.” 1845 Debates at 76. Delegate James S. Mayfield of Fayette County agreed, asking: “In what manner is the cause of freedom and liberty throughout the world to be promoted by allowing an editor to publish truths, even with regard to the relations of private *25life?” Id. at 81. Delegate Isaac Van Zandt of Harrison County observed:
I would not diminish the liberty of the press: I would have it as free as the winds of heaven; I would put no clog upon it. But let this liberty be employed with discretion. You give every one the right to bear arms for his own defence: but does it follow that he has the right to slay his neighbor in all cases?
Id. at 90. Although the delegates were closely divided, eventually the more restrictive view prevailed. As one historian concluded: “The movement for complete liberty died hard, but in the end it gained only a clause added to the original section [as reported by the General Provisions Committee], “or where the matter published is proper for public information.” Frederic L. Paxson, The Constitution of Texas, 1845, 18 Sw. Hist. Q. 386, 395 (1915).
Virtually no changes were made in this language in the next three constitutions.20 However, a vigorous effort was again made to expand the scope of the truth defense at the 1875 Convention. The Bill of Rights Committee initially offered a broader clause, but during debate the delegates narrowed the language. Journal of the Constitutional Convention 338-39 (1875). Eventually, on the motion of Delegate John H. Reagan of Anderson County, the familiar language of the 1845 Constitution was reinstituted by the framers. See id. at 339; Galveston Daily News, October 13, 1875, at 1; Houston Daily TelegRaph, October 13, 1875, at 1.
Thus, by 1876, the Texas Constitution was hardly on the cutting edge of free expression; it was not even in the mainstream. Only six other state constitutions still provided for such a circumscribed truth defense, while nineteen used either the New York or Mississippi models.21 Even Pennsylvania, which originated the Texas approach in 1790, had abandoned it for a more liberal standard,22 as had Great Britain, where Lord Campbell’s Act of 1843 had made truth with good motives a defense in a prosecution for criminal libel. See 6 & 7 Viet. c. 96 (1843); Levy, Emergence of a Free Press at 212.
D.
The final clause of Article I, Section 8 provides:
And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.
This clause expands the common law role of fact finders in criminal libel prosecutions, ensuring them the right to render a general verdict in the same manner as they do in other criminal cases. That is to say, the clause permits a jury to decide guilt or innocence by applying the relevant legal standards to its view of the evidence, resolving each of the subsidiary issues legally necessary to reach its verdict: whether the material is libellous, whether the defendant published it, and the sense in which the material should be read.23 Some states *26trace similar constitutional provisions directly to the Fox Libel Act, 32 Geo. III. ch. 60 (1792), see, e.g., Gray v. Mossman, 91 Conn. 430, 99 A. 1062, 1066-67 (1917); Oakes v. State, 98 Miss. 80, 54 So. 79, 82 (1910); McWilliams v. Workers’ Printing Co., 188 Mo.App. 504, 174 S.W. 464, 467 (1915), while others have suggested that the provision was inspired by the Peter Zenger trial of 1735. See Rodney A. Smol-la, FRee Speech in an Open Society at 29-30 (1992); Levy, Emergence of a Free Press at 212. Today, nineteen other states incorporate a parallel guarantee in their free expression clause.24
III.
A.
What is one to make of all this? Many of the framers’ deliberations now seem obscure, and, as we have seen, the provisions most important to them have been effectively superseded by the evolving guarantees of the First Amendment. Yet in applying these antique words to contemporary situations, we must remain faithful to the essential purposes of the framers and ratifiers. Several conclusions stand out.
First, the broad, majestic guarantees of the first two clauses were combined with the precise, technical provisions of the last two. Any fair reading of our free expression guarantee must consider the provision as a whole, not merely the first portion thereof.25 In addition to the truth defense clause, our Constitution characterizes expression as a “privilege” in the first clause,26 and qualifies the jury’s role as “under the direction of the court, as in other cases” in the fourth clause.27 Third, there was little desire to sanction the actions of those who would “discuss and scan every private act of our lives,” 1845 Debates at 81 (remarks of Delegate Mayfield), “utter calumnies against [women],” id. at 73 (remarks of Delegate Van Zandt), publicize “every little indiscretion which may occur in the community,” id. at 76 (remarks of Delegate Love), or “drag [a woman] before the public gaze [and] publish to the world every peccadillo or misdeed in her history,” id. at 81 (remarks of Delegate Mayfield). While speech could not be censored in advance, protection would not be afforded for those who invaded the “private relations of private citizens.” Id. at 70 (remarks of Delegate Van Zandt).
B.
To apply what we have learned to the facts at hand, we must first determine whether the trial court’s orders constitute prior restraints on speech. If they do, they are unconstitutional, as there is no assertion that the expression here constituted “conduct” or “threatened conduct.” Ex parte Tucker, 220 S.W. at 76. After all,
It has never been the theory of free institutions that the citizen could say only what courts or legislatures might license him to say, or that his sentiments on any subject or concerning any person should be supervised, before he could ut*27ter them.... Liberty of speech will end when such control begins.
Id.
In the present order, however, the trial court was not acting as a censor either as to the content of Relators’ expression or as to the identity of persons allowed to speak. Instead, the challenged portions of the in-junctive relief regulated only where Rela-tors might stand while demonstrating. While some restriction of time, place and manner may be so spatially extensive as to constitute a prohibition against a speaker or his or her message, not every limitation rises to this level. Hence, a citywide ban on the sale of a newspaper would be barred by Article I, Section 8, see Ex parte Neill, 32 Tex.Crim. 275, 22 S.W. 923, 923-24 (1893) (striking down local ordinance that declared Chicago newspaper a nuisance and prohibited its sale within city limits); cf. Organization for a Better Austin v. O’Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971) (injunction barring leaflet-ting anywhere in city was prior restraint), but a restriction of a few feet on abusive or damaging speech surely should not. Such a limited restriction would enable the speakers to deliver their message to whom they want, but in a manner that accords some weight to the rights of others. Striking such a balance between competing interests is at the heart of free exercise jurisprudence, both under the federal and Texas guarantees. See State v. Garcia, 823 S.W.2d 793, 797-98 (Tex.App.—San Antonio 1992, writ denied) (applying time, place, and manner analysis to Article I, Section 8 claim); Lindsay v. Papageorgiou, 751 S.W.2d 544, 549-50 (Tex.App.—Houston [1st Dist.] 1988, writ denied) (same). As Professor Cox has observed: “Freedom of expression, despite its primacy, can never be absolute_ Some balancing is inescapable. The ultimate question is always, where has — and should — the balance be struck?” Archibald Cox, Freedom of Expression 4 (1980).
This is especially true under state constitutional guarantees like ours, where a balancing of interests is inherent in the notion of “abuse.” Speech is “abused” when the legally cognizable benefits arising from unfettered expression are outweighed by the legally cognizable costs to competing and conflicting interests. Thus, in Bering v. SHARE, the Washington Supreme Court held that abortion clinic protesters “abused” their speech rights “by blocking ingress and egress and by engaging in coercive and disorderly picketing,” which in turn “impede[d] access to health care, and ... impinge[d] upon women’s constitutional right to make and effectuate the abortion decision.” 106 Wash.2d 212, 721 P.2d at 918, 931 (1986), cert. dism’d, 479 U.S. 1050, 107 S.Ct. 940, 93 L.Ed.2d 990 (1987).
This is precisely the type of balance, long required of courts, which the plurality opinion today rejects. But such fact-specific inquiry, far from mere “labeling,” is at the core of what courts must do when competing rights and interests collide. For precisely the reasons articulated by Justice Gonzalez, I conclude that 100-foot bans on demonstrators who seek to confront women and call public attention to their choice decision to seek abortion services are not prior restraints. They instead merely regulate the location of expression, and their validity must be tested under our Constitution by whether the expression constitutes an “abuse” for which the speakers have been held “responsible.”
C.
How does the plurality justify abandoning a balancing process to impose a near absolute protection for speech? It offers three basic justifications. All fail.
1.
First, the plurality looks not to authorities involving time, place and manner restrictions, but to cases reviewing essentially total bans on expression. It applies the test of Davenport, which clearly involved a prior restraint, to the facts of this case, announcing:
Freedom of expression may not be restricted solely on grounds that its exercise will have the effect of providing imminent and irreparable harm. Restraints may be imposed only if the in-*28junctive relief encompasses the least restrictive means of protecting against the alleged harmful effect.
859 S.W.2d at 6. The plurality also cites other prior restraint cases, including Ex parte Tucker; Ex parte McCormick, 129 Tex.Crim. 457, 88 S.W.2d 104, 106-07 (1935) (“gag order” on media coverage of trial); Ex parte Foster, 44 Tex.Crim. 423, 71 S.W. 593, 594-95 (1903) (same); Ex parte Neill; Pirmantgen v. Feminelli, 745 S.W.2d 576, 579 (Tex.App.—Corpus Christi 1988, no writ) (injunction against libel); Strang v. Biggers, 252 S.W. 826 (Tex.Civ.App.—Dallas 1923, no writ); and Mitchell v. Grand Lodge Free & Accepted Masons, 56 Tex.Civ.App. 306, 121 S.W. 178, 179 (Dallas 1909, no writ).28 The plurality points to no other jurisdiction currently failing to recognize a distinction between prior restraint and legitimate regulation of speech, and I find none. This extraordinary result could create much harm, and much mischief, if adopted by this Court as a universal principle.
2.
Second, the plurality purports to rely on the “jurisprudence and ... history” of our state free speech clause as expressed by this Court in Davenport, 859 S.W.2d at 5. A detailed exploration of the Court’s rationale in that case reveals the fallacy of this reliance.
In Davenport, the Court first claimed to conduct a “careful and detailed analysis of the development and interpretation of article one, section eight ... to give effect to what is indelibly written into our state constitution.” 834 S.W.2d at 21. In concluding that Texas has always selected an “expansive freedom of expression clause ... to ensure broad liberty of speech,” id. at 8, the Court committed a number of astonishing errors.
For instance, the Court claimed that the language of the proposed constitution of 183329 “incorporated the strong desire of Texans to speak without fear of governmental repression.” Id. at 7. This is a curious conclusion regarding a provision *29that, in common with most contemporary American state constitutions, expressly recognized criminal libel prosecutions.30
Next, the Court intimated that the 1836 Constitution demonstrated special emphasis on speech, since that document “in general closely tracked the wording of the United States Constitution, differing language was chosen to protect speech.” 834 S.W.2d at 7. In fact, “[t]he constitution of the Republic of Texas is a composite structure of portions of the constitutions of the United States and of several of the state constitutions in effect at that time.” Rupert N. Richardson, Framing the Constitution of the Republic of Texas, 31 Sw. Hist.Q. 191, 209 (1928). Only a few phrases of the Declaration of Rights were substantially the same as the American Bill of Rights. In short, “[t]he Declaration of Rights contains nothing new and consists substantially of what one can find attached to the constitution of almost any state.” Id. at 213; see also J.E. Ericson, Origins of the Texas Bill of Rights, 62 Sw.Hist.Q. 457, 457, 465-66 (1959).
In discussing the framing of both the 1845 and 1876 Constitutions, the Court wholly ignored the scope of the truth defense, characterized by one delegate as “the battle ... of freedom against tyranny.” 1845 Debates at 77 (remarks of Delegate Francis Moore of Harris County). Rather, it mentioned only two preliminary, unimportant decisions from each of these conventions, all of which were essentially irrelevant to the final product.31
Finally, the Court attached immense significance to the framers’ substitution of “person” for “citizen” in the opening phrase of Article I, Section 8. This “care*30ful attention to [the provision’s] language,” the Court asserted, “indicates a desire in Texas to ensure broad liberty of speech.” 834 S.W.2d at 8. There is, however, no evidence that the change was accomplished as a careful or even a conscious choice by the framers and ratifiers. From the surviving records of the Convention, it appears that the use of “person” was perhaps a printer’s error or, at best, an editorial decision of the Committee on Style and Arrangement.32
Finally, the Court offered a broader “historical review to understand the origins of our liberties as Texans and the intentions of our forebears.” 834 S.W.2d at 19. From this look to “our treasured state heritage, law and institutions,” 834 S.W.2d at 22, the Court concluded that “[o]ur rich history demonstrates a long-standing commitment in Texas to freedom of expression,” id. at 19, thus implying that “all that is unique to Texas” somehow encompasses an especial devotion to speech. Id. at 22.
The Court first concluded that “the authoritarianism and unresponsiveness of Mexico to [certain] attempts to exercise and establish protection of free speech” were “a contributing factor to Texas’ revolution and independence,” id. at 7, and that “[f]rom the outset of this state’s history, freedom of expression was a priority.” Id. While both statements may well be true, the historical record recited in Davenport does not establish either position.
Davenport’s proffered proof for these assertions is limited almost exclusively to the fact that Stephen F. Austin was imprisoned after sending his October 2, 1833, letter to the ayuntamiento of Bexar. Although Mexican officials “conducted] that Austin was guilty of treason for plotting to withdraw Texas from Mexico,” see Robert Hall, Remonstrance-Citizen’s Weapon Against Government’s Interference, 68 Tex.L.Rev. 1409, 1417 (1990), Texans soon concluded that Mexico had “incarcerated in a dungeon, for a long time, one of our citizens, for no other cause but a zealous endeavor to procure the acceptance of our constitution, and the establishment of a state government.” The Declaration of Independence of the Republic of Texas (1836), reprinted in 1 H.P.N. Gammel, The Laws of Texas 1822-1897 at 1835 (1898). Austin himself, at least while still in Mexico, viewed the controversy as an example of “appearances” triumphing over reality. See Stephen F. Austin, Exposición Al Pub-lico Sobre Los Asuntos De Texas (1835) [Explanation to the Public Concerning the Affairs of Texas], translated in 8 Tex. Hist.Assn. Q. 232, 249 (1905) (Ethel Zivley Rather, trans.).
Today the plurality demonstrates Austin’s longstanding concern for the right of free expression, beginning with his sugges*31tions for electoral reform during Mexico’s first empire, see Eugene C. BarkeR, The Life of Stephen F. Austin 71-72 (1969), and continuing through his Circular from the Committee of Safety to the Jurisdiction of Austin, October 8, 1885. 2 Papers of the Texas Revolution 1835-36 at 17, 19 (John H. Jenkins ed., 1973) (“The ... party ... now governing in Mexico ... [has] suppressed, by military influence, the expression of public opinion_”). But no other revolutionary document specifically references Mexico’s deprivation of free expression rights — not the San Jacinto Resolutions of August 8, 1835, 1 The Papers of the Texas Revolution at 317-21; not the Nacogdoches Resolutions of August 15, 1935, id. at 343-45; not Austin’s Brazoria speech of September 8, 1835, id. at 423-27; not the Declaration of the People of Texas in General Convention Assembled adopted by the Consultation on November 7,1835,1 Gammel at 522; not the Address of the General Council of the Provisional Government of Texas to the Mexican People of December 11, 1835, id. at 651-52; not the Resolution of the Provisional Government for Calling a Convention of December 10, 1836, id. at 980-82; not the Goliad Declaration of Independence on December 20, 1835, id. at 817-20; not even the Texas Declaration of Independence of March 2, 1836. Id. at 834-37. Texans repeatedly expressed their indignation over Mexico’s deprivation of the right of trial by jury, the right to bear arms, and the right to religious freedom, but free expression was essentially unnoticed in all the literature promoting and explaining their cause.
Moreover, nothing in the historical record establishes that Texans, either then or now, have been singularly or uniquely devoted to free expression. No doubt, our earliest Anglo-American colonists cherished this right. As the Mexican Commissioner to Texas, Don Manuel de Mier y Teran, advised President Guadalupe Victoria in 1828: “Among these foreigners are fugitives from justice, honest laborers, vagabonds and criminals, but honorable and dishonorable alike travel with their political constitutions in their pockets, demanding the privileges ... which such a constitution guarantees.” See Barker, The Life of Stephen F. Austin at 261. Such devotion did not always extend to tolerance for the exercise of free expression by others. Thus, the “widespread passion for freedom of speech” in the Republic of Texas “contributed to the frequency of fights and, to a lesser extent, of duels.” William Ransom Hogan, Rampant Individualism in the Republic of Texas, 44 Sw.Hist.Q. 454, 456-57 (1941), reprinted in William Ransom Hogan, The Texas Republic 267, 269 (1946). Intolerance prevented Sam Houston from speaking at the courthouse in Brenham during his unsuccessful race for Governor in 1857,33 and after the Civil War the Union commander for Texas was moved to report:
Free speech and free press, as the terms are generally understood in other States, have never existed in Texas. In fact, the citizens of other states can not appreciate the state of affairs in Texas without actually experiencing it.
Official Report of General J.J. Reynolds, November 4, 1868, reprinted in Journal of the Reconstruction Convention, Second Session 111-12 (1870). Even in modern times, one observer believes:
In its zeal to maintain its own prosperous status quo, the ... Texas establishment tended to ignore, repress, or attack individuals and groups with different values .... This uncompromising stance on behalf of the Texas power structure may have created its own antithesis — a strong, colorful tradition of iconoclastic journalism. By stifling a reasonable range of dissent, the Texas establishment may have forced individualist writers to more radical stands and more flamboyant rhetoric.
James McEnteer, Fighting Words: Independent Journalists in Texas xii-xiii (1992).
*32Surely most Texans believe in free speech, at least most of the time. But I submit that the “unique values, customs, and traditions of our citizens,” Davenport, 834 S.W.2d at 20, are, with regard to free expression, in fact the shared legacy of the American heritage, if not of the entire modern constitutional tradition. See, e.g., FRANklin D. Roosevelt, State of the Union Message, January 6, 1941 (“In the future days, which we seek to make secure, we look forward to a world founded upon four essential freedoms. The first is freedom of speech and expression — everywhere in the world.”)
3.
Finally, Davenport raises the notion of a living constitution, stating:
[Historical analysis is only a starting point. The constitution of our state is an organic document, [citation omitted] In no way must our understanding of its guarantees be frozen in the past. Rather, our concept of freedom of expression continues to evolve over time.
834 S.W.2d at 19. Contrary to the charges of the plurality, I have not “forgotten” that our constitutional understanding can change, or that the framers and ratifiers would not have us apply one of our great freedoms in the same way to modern circumstances as they might have applied it to their own problems a century ago. Davenport, for example, correctly referenced new “forms of expression” and “new methods of infringing on speech” as examples of new circumstances requiring new protection. See id. But today’s plurality eschews all specifics, saying only that “we as jurists are summoned to give effect to [the Constitution’s] terms whenever liberty is threatened.” 859 S.W.2d at 14. Thus, to find fault with the plurality’s case authority, historical development, or intent analysis becomes not merely irrelevant, but proof positive of the critic’s constitutional naivete. Surely our fundamental freedoms are “evolved” or “unfrozen” for some better reason than five justices’ ephemeral notion of the greater good. Our summons to case-by-case activism is a poor substitute for a principled articulation of the means by which our understanding of fundamental liberties can change with time.
D.
I conclude that nothing in the language or purpose of the Texas Free Expression Clause authorizes us to abandon the notion of accommodating competing interests, as the plurality has done, or even to afford greater weight in the balancing of interests to free expression than we would under the First Amendment, as Justice Gonzalez proposes. Under the first clause, with its explicit reference to abuse, I would be inclined to give even less weight to expression interests than the expansive wording of the First Amendment provides. One could argue that the second clause, which so closely parallels the First Amendment, cf. Ex parte Tucker, 220 S.W. at 76, mandates a more similar balance. We are not required, however, to use past or present First Amendment doctrine as a minimum “floor” which our independent guarantee must be interpreted to meet or exceed. Previous intimations to the contrary in some of our opinions are, in my view, simply wrong. See LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex.1986); Sax v. Votteler, 648 S.W.2d 661 (Tex.1983); see also Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991); Brown v. State, 657 S.W.2d 797, 799 (Tex.Crim.App.1983).34
*33Given the many difficulties with our guarantee, it would be difficult to articulate its precise meaning with confidence. I decline to make the attempt for a simple, but to me compelling reason: the trial court’s orders fail to meet constitutional muster under the more familiar contours of the First Amendment.
IV.
In turning to the First Amendment to resolve this case, I am by no means avoiding the issue before us. In fact, while Relators request relief under both the federal and state constitutions, they devote barely 15 percent of their briefs before this Court to the latter claims; the rest pertains solely to their First Amendment arguments. Respondents undertake no independent discussion of Article I, Section 8 jurisprudence at all, simply distinguishing such cases as Davenport and Tucker, along with First Amendment prior restraint cases, from the place and manner regulations at issue here. Only because of the false construct of considering state constitutional issues first, pronounced by this Court in Davenport, has it been necessary for seven justices who join in the judgment to write three separate, time-consuming opinions.35
Relators assert that the 100-foot bans on demonstrating violate their rights under the United States Constitution in three respects: (1) the restrictions impermissibly infringe upon their freedom of speech; (2) the restrictions constitute an invalid prior *34restraint; and (3) the term “demonstrating” is unconstitutionally vague as it has been applied in this case.
It is undisputed that the expressive activities in which Relators were engaged, whether characterized as “praying,” “preaching,” or “demonstrating,” are protected “speech” under the First Amendment, and thus are also federally protected against state infringement by virtue of the due process clause of the Fourteenth Amendment. Likewise, it is undisputed that the public streets and sidewalks where these activities occurred have long been deemed “public fora” for purposes of First Amendment analysis. See Frisby v. Schultz, 487 U.S. 474, 479-81, 108 S.Ct. 2495, 2499-2500, 101 L.Ed.2d 420 (1988); United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983). In a public forum:
[T]he government’s ability to permissibly restrict expressive conduct is very limited: the government may enforce reasonable time, place, and manner regulations as long as the restrictions [1] are content neutral, [2] are narrowly tailored to serve a significant government interest, and [3] leave open alternative channels of communication. Additional restrictions such as an absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling government interest.
Id. at 177, 103 S.Ct. at 1707 (internal citations and quotation marks omitted); see also Ward v. Rock Against Racism, 491 U.S. 781, 790-91, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989).
It is clear under federal law that the restrictions imposed in this case were an attempt at a “time, place, and manner” restriction rather than an “absolute prohibition on a particular type of expression” or prior restraint. See, e.g., Northeast Women’s Center, Inc. v. McMonagle, 939 F.2d 57 (3rd Cir.1991); Portland Feminist Women’s Health Center v. Advocates for Life, 859 F.2d 681 (9th Cir.1988); Pro-Choice Network of Western New York v. Project Rescue, 799 F.Supp. 1417 (W.D.N.Y.1992); Hirsh v. City of Atlanta, 261 Ga. 22, 401 S.E.2d 530 (1991); Planned Parenthood Ass’n of Cincinnati, Inc. v. Project Jericho, 52 Ohio St.3d 56, 556 N.E.2d 157 (1990); Bering v. SHARE, 721 P.2d 918; Thompson v. Police Dept. of New York, 145 Misc.2d 417, 546 N.Y.S.2d 945 (N.Y.Sup.1989).
Under the first “prong” of the “time, place, and manner” analysis, courts have consistently held restrictions similar to the ones challenged here to be “content-neutral.” See McMonagle, 939 F.2d at 63; New York State NOW v. Terry, 886 F.2d 1339, 1363-64 (2nd Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990); Portland Feminist Women’s Health Center, 859 F.2d at 686; Pro-Choice Network, 799 F.Supp. at 1432-33; Fargo Women’s Health Organization, Inc. v. Lambs of Christ, 488 N.W.2d 401, 407-08 (N.D.1992); Hirsh, 401 S.E.2d at 533; Project Jericho, 556 N.E.2d at 162; Bering, 721 P.2d at 925; Parkmed Co. v. Pro-Life Counselling, Inc., 91 A.D.2d 551, 457 N.Y.S.2d 27, 29 (1982). The orders here regulate only:
[W]here, and how [the Relators] might speak, but not what [they] might say. The challenged sections ... make no mention whatsoever of abortion or any substantive issue_ In fact, the [restraining orders] could apply equally to protests which supported abortion as well as to protests which opposed abortion, or indeed, to protests supporting or opposing any other cause.
McMonagle, 939 F.2d at 63. Clearly, they are content-neutral.36 Under the remaining *35elements of the time, place, and manner test, we are required to balance carefully the interests the orders are intended to vindicate with the need to protect and preserve the “uninhibited, robust, and wide-open” debate that the First Amendment envisions. New York Times v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964). This is true even when individuals, and their private affairs, are unwittingly or unwillingly pulled into the fray. See, e.g., Frisby, 487 U.S. at 479, 108 S.Ct. at 2499 (analyzing place restrictions on residential picketing); cf. Mississippi Women’s Medical Clinic v. McMillan, 866 F.2d 788, 795-96 (5th Cir.1988) (refusing to hold trial court’s refusal to issue anti-picketing injunction against pro-life forces an abuse of discretion). So long as clinic patients and staff are ensured access, the mere possibility that these unwilling listeners might find the protesters’ message and presence distasteful, upsetting, or disturbing is not alone sufficient to justify a restriction on expression under the First Amendment. Ordinarily, “to avoid further bombardment of [their] sensibilities,” unwilling listeners like the plaintiffs here are “simply [to] avert[] their eyes.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 211, 95 S.Ct. 2268, 2273, 45 L.Ed.2d 125 (1975). I would agree with Justice Gonzalez that the interests advanced in support of the challenged orders, the clinic patients’ right to an abortion and the clinic owners’ right to engage in lawful activities, are at least “significant” for purposes of the time, place, and manner analysis. While this Court in its 1948 decision Ex parte Henry struck down a 100-foot place restriction under the First Amendment, I might nonetheless be inclined to hold, on the strength of more recent federal precedent, that a 100-foot restriction on demonstrating is, all other things being equal, a sufficiently nar.rowly tailored means of advancing these interests that would leave open adequate alternative channels of communication. See McMonagle, 939 F.2d at 72 (restriction allowing only 6-8 protesters within 500 feet of clinic property); Bering, 721 P.2d at 922-24, 931 (restriction barring demonstrations along front of clinic building); see also Burson v. Freeman, — U.S. -, -, 112 S.Ct. 1846, 1856-57, 119 L.Ed.2d 5 (1992) (upholding statute banning display or distribution of campaign literature and solicitation of votes within 100 feet of polling place; Court “d[id] not view the question whether the 100-foot boundary line could be tighter as a question of constitutional dimension. Reducing the boundary to 25 feet [was] a difference only in degree, not a least restrictive alternative in kind.”); Boos v. Barry, 485 U.S. 312, 329, 108 S.Ct. 1157, 1168, 99 L.Ed.2d 333 (1985) (upholding portion of ordinance permitting no more than 3 picketers within 500 feet of embassy); Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965) (upholding statute banning demonstrating “near” a courthouse applied to protest taking place 101 feet away); but see Hirsh, 401 S.E.2d at 533 (provision in order permitting small number of demonstrators within 50-foot demonstration-free zone was necessary to ensure that adequate alternative means of communication were available).
There are, however, two related difficulties in the challenged orders. First, particularly with respect to the order applicable to clinics other than Planned Parenthood, there is nothing in the record concerning the physical layouts of the numerous clinics in relation to their respective property lines, the property lines in relation to public sidewalks and roads, or the features of the areas in which the clinics were located. Fargo Women’s Health Clinic, 488 N.W.2d at 409. As the plurality points out, clinics covered by this order were evidently located in such diverse surroundings as high-rise office buildings. In attempting to apply, in the name of administrative convenience, a blanket set of restrictions to such *36a wide variety of clinics, the trial court overlooks the careful, fact-specific balancing of interests required under the First Amendment. Further, by failing to provide any information concerning the surroundings and location of individual clinics, we have no way of judging the propriety of the 100-foot restriction in each location and whether such provisions ensure adequate alternative channels of communication. See id. Under the First Amendment, it is the responsibility of parties seeking state-imposed place restrictions on expressive activity to adduce evidence from which the trial court — and appellate courts, if necessary — can ascertain whether parties wishing to express themselves may adequately make themselves heard.
Second, as both the plurality and concurrence point out in the course of their respective analyses of Relators’ Texas free speech clause claims, there are a number of other provisions in the orders, not challenged by Relators, designed to effectuate the interests that Plaintiffs assert. In addition to the 100-foot restriction, the orders prohibit:
“Trespassing on, sitting in, blocking, impeding or obstructing access to, ingress into or egress from” the clinics or clinic parking lots;37
“Demonstrating within twenty-five (25) feet of any person seeking access to or leaving” the clinics or their parking lots “or in any way impeding such person’s ... entrance to or exit from the clinics or parking lots;”
“Physically abusing, grabbing, intimidating, harassing, touching, pushing, shoving, or crowding persons entering or leaving, working at, or using any services” at the clinics;38
Making any sound or noise “that is so loud that it disturbs, injures, or endangers the health and safety of any patient or employee” of the clinics;
“Harassing, intimidating or physically abusing any doctor, health care professional, or other staff member, or employee or volunteer who assists in the provision of services” at any facility;
“Attempting to take, or in any manner inducing, encouraging, directing, aiding, or abetting others to take” any of the above actions.
Hence, even without the 100-foot restrictions, the orders guarantee physical access for clinic patients and staff free of harassment, violence, or intimidation. Further, each person seeking access to or leaving the clinics is afforded a 25-foot, demonstration-free bubble around them. To date, only one court has upheld such an expansive place restriction when included in an order, like the ones challenged today, containing a variety of other protections for clinic patients and staff. See McMonagle, 939 F.2d at 71-73 (restriction allowing 6-8 protesters within 500 feet of clinic property); compare Pro-Choice Network, 799 F.Supp. at 1434-35, 1440-41 (upholding 15-foot place restriction in context of order with structure virtually identical to those of this case).39
I would accordingly hold that Plaintiffs have failed to demonstrate that the challenged 100-foot restrictions are sufficiently narrowly tailored and leave open adequate alternative channels of communication to pass muster under the First Amendment.
V.
Before closing, I pause briefly to respond to the dissenting opinion’s arguments that Relators’ claims should properly be dispensed with under some version of the so-called “collateral bar” rule like that propounded by the United States Supreme Court in Walker v. City of Birmingham, *37388 U.S. 307, 315-21, 87 S.Ct. 1824, 1829-32, 18 L.Ed.2d 1210 (1967). I cannot ignore the long-established Texas practice of permitting litigants imprisoned for the violation of court orders restricting speech to challenge the constitutionality of those orders through habeas proceedings. See, e.g., Ex parte Pierce, 161 Tex. 524, 342 S.W.2d 424 (1961), cert. denied, 366 U.S. 928, 81 S.Ct. 1650, 6 L.Ed.2d 388 Ex parte Henry, 215 S.W.2d 588; Ex parte Tucker, 220 S.W. 75; see also Ex parte McCormick, 88 S.W.2d 104; Ex parte Foster, 71 S.W. 593.
I do not agree, however, with the plurality’s wholly unsupported suggestion that Texas’ failure to follow the federal-style collateral bar rule is attributable to any supposedly greater “importance attached to freedom of expression in our state’s jurisprudence.” 859 S.W.2d at 2. A number of other states, like Texas, have permitted collateral attacks on court orders via habeas or similar proceedings. None, including some that deem their free speech clauses to be broader in at least some respects than the First Amendment, have linked the notion of a more expansive free speech clause with their refusal to follow the collateral bar rule. See In re Berry, 68 Cal.2d 137, 65 Cal.Rptr. 273, 279-82, 436 P.2d 273, 279-82 (Cal.1968); see also Wood v. Goodson, 253 Ark. 196, 485 S.W.2d 213, 217 (1972); State ex. rel. Superior Court v. Sperry, 79 Wash.2d 69, 483 P.2d 608, 611 (1971), cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P.2d 594, 596 (1966).
VI.
The revitalized commitment to state constitutions has been one of the most important jurisprudential developments of our generation. Contrary to the repeated insinuations of the plurality, I question neither the power nor the obligation of our Court to apply state, as well as national, constitutional guarantees to the claims before us. Moreover, our application of the state constitution need not be controlled, or even informed, by how past or current federal courts have read corresponding guarantees of the United States Constitution.
Unfortunately, however, the manner in which some state courts have exercised this authority has led some commentators to view state constitutional guarantees as merely a convenient vehicle for result-oriented pronouncements. See authorities cited at Davenport, 834 S.W.2d at 38 n. 10 (Hecht, J., concurring). Our recent writings in the free expression area have also done little to dispel this notion. From the unseemly chauvinism of Davenport to the blatantly partisan factual recitation of today’s plurality opinion, it would appear that some see our Texas Constitution as little more than “a handy grab bag filled with a bevy of clauses that may be exploited” to achieve “some particular social goal.” Ronald R.K. Collins, Reliance on State Constitutions — Away From a Reactionary Approach, 9 Hastings Const. L.Q. 1, 2 (1981). If I have authored an “expansive writing ... to dissent from each and every underpinning of” Davenport, 6 S.W.2d at -, it is only because that opinion is so perforated with error, constructs so flawed a foundation for a methodological framework for future decisions. I do, indeed, “fret” over such a writing by this Court, 859 S.W.2d at 8, n. 14, and I fervently hope that our subsequent efforts in this area will prove more substantial. For this case, as the guarantees of the First Amendment to the United States Constitution provide all the relief sought by Relators, I rely solely on that authority to concur in the judgment that Relators remain discharged.
CORNYN, J., joins in this opinion.
APPENDIX
COMPENDIUM OF STATE FREE SPEECH CLAUSES
ALABAMA
1819
(effective Dec. 14, 1819)
Art. I, § 8: Every citizen may freely speak, write, and publish his sentiments on *38all subjects, being responsible for the abuse of that liberty.
Art. VI, § 14: In prosecutions for the publishing of papers investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the courts.
1861
(effective Mar. 21, 1861)
Same as 1819 provisions.
1865
(effective Sept. 30, 1865)
Art. I, § 5: That every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty.
Art. I, § 13: That in prosecutions for the publication of papers investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and that in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court.
1867
(effective July 13, 1868)
Art. I, § 6: That any citizen may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty.
Art. I, § 14: That in prosecution for the publication of papers investigating the official conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and that in all indictments for libel, the jury shall have the right to determine the law and the facts under the direction of the court.
1875
(effective Dec. 6, 1875)
Art. I, § 5: Same as Art. I, § 6 (1867).
Art. I, § 13: That in prosecutions for the publication of papers investigating the official conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and that in all indictments for libel the jury shall have the right to determine the law and the facts under the direction of the court.
1901
(effective Nov. 28, 1901) (present)
Art. I, § 4: That no law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty.
Art. I, § 12: That in all prosecutions for libel or for the publication of papers investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and that in all indictments for libel, the jury shall have the right to determine the law and the facts under the direction of the court.
ALASKA
1956
(effective Jan. 3, 1959) (present)
Art. I, § 5: Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.
ARIZONA
1910
(effective Feb. 14, 1912) (present)
Art. II, § 6: Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.
ARKANSAS
1836
(effective June 15, 1836)
Art. II, § 7: That printing-presses shall be free to every person; and no law shall ever be made to restrain the rights thereof. *39The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print on any subject — being responsible for the abuse of that liberty.
Art. II, § 8: In prosecutions for the publication of papers investigating the official conduct of officers or men in public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury shall have the right to determine the law and the facts.
1861
(effective June 1, 1861)
Same as 1836 provisions.
1864
(effective Apr. 11, 1864)
Art. II, § 7: That printing-presses shall be free to every person; and no law shall ever be made to restrain the rights thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print, on any subject — being responsible for the abuse of that liberty.
Art. II, § 8: In prosecutions for the publication of papers investigating the official conduct of officers or men in public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence, and in all indictments for libels, the jury shall have the right to determine the law and the facts.
1868
(effective June 22, 1868)
Art. I, § 2: The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions is one of the invaluable rights of man, and all persons may freely speak, write and publish their sentiments on all subjects, being responsible for the abuse of such right. In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it shall appear to the jury, that the matter charged as libellous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted.
1874
(effective Oct. 13, 1874) (present)
Art. II, § 6: The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions is one of the invaluable rights of man; and all persons may freely write and publish their sentiments on all subjects, being responsible for the abuse of such right. In all criminal prosecutions for libel the truth may be given in evidence to the jury; and, if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party charged shall be acquitted.
CALIFORNIA
1849
(effective Sept. 9, 1850)
Art. I, § 9: Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
1879
(effective May 7, 1879)
Art. I, § 9: Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. Indictments found, or information laid, for publications in newspapers, shall *40be tried in the county where such newspapers have their publication office, or in the county where the party alleged to be libeled resided at the time of the alleged publication, unless the place of trial shall be changed for good cause.
Present
(1879 as amended June 3, 1980)
Art. I, § 2(a): Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.
Art. I, § 2(b): A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.
Nor shall a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.
As used in this subdivision, “unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.
COLORADO
1876
(effective Aug. 1, 1876) (present)
Art. II, § 10: That no law shall be passed impairing the freedom of speech; that every person shall be free to speak, write, or publish whatever he will on any subject, being responsible for all abuse of that liberty; and that all suits and prosecutions for libel, the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.
CONNECTICUT
1776'
(effective Aug. 1776)
Para. 2: And be it further enacted and declared, That no Man’s Life shall be taken away: No Man’s Honor or good Name shall be stained....
1818
(effective Nov. 1818)
Art. I, § 5: Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty.
Art. I, § 6: No law shall ever be passed to curtail or restrain the liberty of speech or of the press.
Art. I, § 7: In all prosecutions or indictments for libels the truth may be given in evidence, and the jury shall have the right to determine the law and the facts, under the direction of the court.
1955
(effective Jan. 1, 1955)
Art. I, § 5: Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.
*41Art. I, § 6: No law shall ever be passed to curtail or restrain the liberty of speech or of the press.
Art. I, § 7: In all prosecutions or indictments for libels, the truth may be given in evidence, and the jury shall have the right to determine the law and the facts, under the direction of the court.
1965
(effective Dec. 30, 1965) (present)
Art. I, §§ 4, 5, and 6 same as Art. I, §§ 5, 6, and 7 (1955).
DELAWARE
1776*
(effective Sept. 20, 1776)
Declaration of Rights and Fundamental Rules, § 23: That the Liberty of the Press ought to be inviolably preserved.
1792
(effective June 12, 1792)
Art. I, § 5: The press shall be free to every citizen who undertakes to examine the official conduct of men acting in a public capacity; and any citizen may print on any subject, being responsible for the abuse of that liberty. In prosecutions for publications investigating the proceedings of officers, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury may determine the facts and the law, as in other cases.
1831
(effective Dec. 2, 1831)
Art. I, § 5: The press shall be free to every citizen who undertakes to examine the official conduct of men acting in a public capacity, and any citizen may print on any such subject, being responsible for the abuse of that liberty. In prosecutions for publications investigating the proceedings of officers, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the jury may determine the facts and the law, as in other cases.
1897
(effective June 10, 1897)(present)
Art. I, § 5: The press shall be free to every citizen who undertakes to examine the official conduct of men acting in a public capacity; and any citizen may print on any subject, being responsible for the abuse of that liberty. In prosecutions for publications, investigating the proceedings of officers, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the jury may determine the facts and the law, as in other cases.
FLORIDA
1838
(effective Mar. 3, 1845)
Art. I, § 5: That every citizen may freely speak, write, and publish his sentiments, on all subjects, being responsible for the abuse of that liberty; and no law shall ever be passed to curtail, abridge, or restrain the liberty of speech or of the press.
Art. I, § 15: That in all prosecutions and indictments for libel the truth may be given in evidence; and, if it shall appear to the jury that the libel is true, and published with good motives, and for justifiable ends, the truth shall be a justification; and the jury shall be the judges of the law and facts.
1861
(effective Apr. 27, 1861)
Same as 1838 provisions.
1865
(effective Nov. 7, 1865)
Art. I, § 5: That every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty; and no law shall be passed to curtail, abridge, or restrain the liberty of speech or of the press.
Art. I, § 15: That in all prosecutions and indictments for libel, the truth may be given in evidence; and, if it shall appear to the jury that the libel is true, and published with good motives, and for justifiable ends, *42the truth shall be a justification; and the jury shall be the judges of the law and facts.
1868
(effective July 4, 1868)
Art. I, § 10: Every citizen may fully speak and write his sentiments on all subjects, being responsible for the abuse of that right, and no law shall be passed to restrain or abridge the liberty of speech or the press. In all criminal prosecutions and civil actions for libel the truth may be given in evidence to the jury, and if it shall appear that the matter charged as libellous is true, but was published from good motives, the party shall be acquitted or exonerated.
1885
(effective June 1, 1887)
Art. I, § 13: Every person may fully speak and write his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for libel the truth may be given in evidence to the jury, and if it shall appear that the matter charged as libellous is true, but was published for good motives, the party shall be acquitted or exonerated.
1969
(effective Jan. 1, 1969) (present)
Art. I, § 4: Every person may speak, write and publish his sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated.
GEORGIA
177f
(effective Feb. 5, 1777)
Art. LXI: Freedom of the press and trial by jury to remain inviolate forever.
1789
(effective May 6, 1789)
Art. IV, § 3: Freedom of the press and trial by jury shall remain inviolate.
1798
(effective May 30, 1798)
Art. IV, § 5: Freedom of the press, and trial by jury, as heretofore used in this State, shall remain inviolate; and no ex post facto laws shall be passed.
1861
(effective Aug. 1861)
Art. I, § 8: Freedom of thought and opinion, freedom of speech, and freedom of the press, are inherent elements of political liberty. But while every citizen may freely speak, write and print, on any subject, he shall be responsible for the abuse of that liberty.
1865
(effective Dec. 1865)
Art. I, § 6: Freedom of speech, and freedom of the press, are inherent elements of political liberty. But while every citizen may freely speak or write or print on any subject, he shall be responsible for the abuse of the liberty.
1868
(effective June 25, 1868)
Art. I, § 9: Freedom of speech and freedom of the press are inherent elements of political liberty. But while every citizen may freely speak, or write, or print on any subject, he shall be responsible for the abuse of the liberty.
Art. I, § 19: In all prosecutions or indictments for libel the truth may be given in evidence, and the jury shall have the right to determine the law and the facts.
1877
(effective Dec. 1877)
Art. I, § 1, para. 15: No law shall ever be passed to curtail, or restrain, the liberty of speech, or of the press; any person may speak, write, and publish his sentiments, on *43all subjects, being responsible for the abuse of that liberty.
Art. I, § 2, para. 1: In all prosecutions or indictments for libel the truth may be given in evidence; and the jury in all criminal cases, shall be the judges of the law and the facts. The power of the Judges to grant new trials in cases of conviction, is preserved.
1945
(effective Dec. 1945)
Art. I, § 1, para. 15: No law shall ever be passed to curtail, or restrain the liberty of speech, or of the press; any person may speak, write and publish his sentiments, on all subjects, being responsible for the abuse of that liberty.
Art. I, § 2, para. 1: In all prosecutions or indictments for libel the truth may be given in evidence; and the jury in all criminal cases, shall be the judges of the law and the facts. The power of the judges to grant new trials, in cases of conviction, is preserved.
1976
(effective Jan. 1, 1977)
Art. I, § 1, para. 4: Same as Art. I, § 1, para. 15 (1945).
Art. I, § 1, para. 8: In all prosecutions or indictments for libel the truth may be given in evidence; and the jury in all criminal cases, shall be the judges of the law and the facts. The power of the judges to grant new trials in case of conviction is preserved.
1983
(effective July 1, 1983) (present)
Art. I, § 1, para. 5: No law shall be passed to curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty.
Art. I, § 1, para. 6: In all civil or criminal actions for libel, the truth may be given in evidence; and, if it shall appear to the trier of fact that the matter charged as libelous is true, the party shall be discharged.
HAWAII
mo"
(effective Oct. 8, 1840) (constitutional monarchy)
Contains a rudimentary bill of rights, but no specific free speech provisions.
1852"
(effective June 14, 1852) (constitutional monarchy)
Art. Ill: All men may freely speak, write and publish their sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.
1864**
(effective Aug. 20, 1864)(eonstitutional monarchy)
Art. Ill: All men may freely speak, write and publish their sentiments on all subjects, being responsible for the abuse of that right, and no law shall be enacted to restrain the liberty of speech, or of the press, except such laws as may be necessary for the protection of His Majesty the King and the Royal Family.
1887**
(effective July 7, 1887)(constitutional monarchy)
Art. Ill: All men may freely speak, write and publish their sentiments on all subjects, being responsible for the abuse of that right, and no law shall be enacted to restrain the liberty of speech, or of the press.
1894**
(effective July 4, 1894)(Republic)
Art. Ill: All men may freely speak, write and publish their sentiments on all subjects; and no law shall be enacted to restrain the liberty of speech or of the press; but all persons shall be responsible for the abuse of such right. Provided, however, that the Legislature may enact such laws as may be necessary, to restrain and prevent the publication or public utterance of indecent or seditious language.
*44 1959
(effective Aug. 21, 1959)
Art. I, § 3: No law shall be enacted respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.
Present
(1959 as amended Nov. 7, 1978)
Art. I, § 4: No law shall be enacted respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances.
IDAHO
1889
(effective July 3, 1890)(present)
Art. I, § 9: Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty.
ILLINOIS
1818
(effective Dec. 3, 1818)
Art. VIII, § 22: That the printing-presses shall be free to every person who undertakes to examine the proceedings of the general assembly or of any branch of government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.
Art. VIII, § 23: In prosecutions for the publication of papers investigating the official conduct of officers, or of men acting in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels the jury shall have the right of determining both the law and the fact, under the direction of the court, as in other cases.
1848
(effective Apr. 1, 1848)
Art. XIII, § 23: The printing-presses shall be free to every person who undertakes to examine the proceedings of the general assembly, or any branch of government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.
Art. XIII, § 24: In prosecutions for the publication of papers investigating the official conduct of officers, or of men acting in a public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury shall have the right of determining both the law and the fact, under the direction of the court, as in other cases.
1870
(effective Aug. 8, 1870)
Art. II, § 4: Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.
1971
(effective July 1, 1971)(present)
Art. I, § 4: All persons may speak, write and publish freely, being responsible for the abuse of that liberty. In trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.
INDIANA
1816
(effective Dec. 11, 1816)
Art. I, § 9: That the printing-presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of government; *45and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.
Art. I, § 10: In prosecution for the publication of papers investigating the official conduct of officers, or men in a public capacity, or where the matter published is proper for the public information, the truth thereof may be given in evidence; and, in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.
1851
(effective Nov. 1, 1851)(present)
Art. I, § 9: No law shall be passed restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print freely on any subject whatever; but for the abuse of that right every person shall be responsible.
Art. I, § 10: In all prosecutions for libel, the truth of the matters alleged to be libel-lous may be given in justification.
IOWA
1846
(effective Dec. 28, 1846)
Art. I, § 7: Every person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech, or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury, and if it appear to the jury that the matter charged as libellous was true, and was published with good motives and justifiable ends, the party shall be acquitted.
1857
(effective Sept. 1857)(present)
Same as 1846 provision.
KANSAS
1859
(effective Jan. 29, 1861)(present)
Bill of Rights, § 11: The liberty of the press shall be inviolate; and all persons may freely speak, write, or publish their sentiments on all subjects, being responsible for the abuse of such right; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury, and if it shall appear that the alleged libellous matter was published for justifiable ends, the accused party shall be acquitted.
KENTUCKY
1792
(effective June 1, 1792)
Art. XII, (para. 7): That the printing-presses shall be free to every person who undertakes to examine the proceedings of the legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communications of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.
Art. XII, (para. 8): In prosecutions for publications of papers, investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.
1799
(effective Jan. 1, 1800)
Art. X, § 7: That printing-presses shall be free to every person who undertakes to examine the proceedings of the legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.
Art. X, § 8: In prosecutions for the publication of papers investigating the official conduct of officers or men in a public ca*46pacity, or where the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.
1850
(effective Jan. 1, 1851)
Art. XIII, § 9: That printing-presses shall be free to every person who undertakes to examine the proceedings of the general assembly, or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.
Art. XIII, § 10: In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other eases.
1890
(effective Jan. 1, 1892)(present)
Bill of Rights, § 1: All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:
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Fourth: The right of freely communicating their thoughts and opinions.
Bill of Rights, § 8: Printing presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof. Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.
Bill of Rights, § 9: In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libel the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.
LOUISIANA
1812
(effective Apr. 30, 1812)
Art. VI, § 21: Printing-presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of the government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.
1845
(effective Jan. 25, 1846)
Title VI, Art. 110: The press shall be free. Every citizen may freely speak, write, and publish his sentiments on all subjects; being responsible for an abuse of this liberty.
1852
(effective Jan. 15, 1853)
Title VI, Art. 106: Same as Title VI, Art. 110 (1845).
1861
(effective Mar. 15, 1861)
Same as 1852 provision.
1868
(effective July 16, 1868)
Title I, Art. 4: The press shall be free; every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of this liberty.
1879
(effective Jan. 8, 1880)
Bill of Rights, Art. 1: No laws shall be passed respecting an establishment of reli*47gion or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the government for a redress of grievances.
General Provisions, Art. 168: In all proceedings of indictments for libel, the truth thereof may be given in evidence. The jury in all criminal cases shall be judges of the law and of the facts on the question of guilt or innocence, having been charged as to the law applicable to the case by the presiding judge.
1898
(effective May 12, 1898)
Bill of Rights, Art. 3: No law shall ever' be passed to curtail or restrain the liberty of speech or of the press; any person may speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.
General Provisions, Art. 179: In all proceedings or indictments for libel, the truth thereof may be given in evidence. The jury in all criminal eases shall be the judges of the law and of the facts on the question of guilt or innocence, having been charged as to the law applicable to the case by the presiding judge.
1913
(effective Nov. 22, 1913)
Same as 1898 provisions.
1921
(effective July 1, 1921)
Art. I, § 3: Same as Bill of Rights, Art. 3 (1898).
Art. XIX, § 9: Same as General Provisions, Art. 179 (1898).
1974
(effective Dec. 31, 1974)(present)
Art. I, § 7: No law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom.
MAINE
1820
(effective Mar. 15, 1820)(present)
Art. I, § 4: Every citizen may freely speak, write, and publish his sentiments on any subject, being responsible for the abuse of this liberty. No laws shall be passed regulating or restraining the freedom of the press; and, in prosecutions for any publication respecting the official conduct of men in public capacity, or the qualifications of those who are candidates for the suffrages of the people, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury, after having received the direction of the court, shall have a right to determine, at their discretion, the law and the fact.
MARYLAND
1776*
(effective Nov. 8, 1776)
Declaration of Rights, VIII: That freedom of speech and debates, or proceedings in the Legislature, ought not to be impeached in any other court or judicature.
Declaration of Rights, XXXVIII: That the liberty of the press ought to be inviol- • ably preserved.
1851
(effective July 4, 1851)
Declaration of Rights, Art. 8: That freedom of speech and debate, or proceedings in the legislature, ought not to be impeached in any court of judicature.
Declaration of Rights, Art. 38: Same as Declaration of Rights, XXXVIII (1776).
1864
(effective Nov. 1, 1864)
Declaration of Rights, Art. 10: Same as Declaration of Rights, Art. 8 (1851).
Declaration of Rights, Art. 40: That the liberty of the press ought to be inviolably preserved; that every citizen of the State ought to be allowed to speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty-
1867
(effective Oct. 5, 1867)(present)
*48Declaration of Rights, Art. 10: Same as 1864 provision.
Declaration of Rights, Art. 40: That the liberty of the press ought to be inviolably preserved; that every citizen of the State ought to be allowed to speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that privilege.
MASSACHUSETTS
1780*
(effective Oct. 25, 1780)
Declaration of Rights, Art. XVI: The liberty of the press is essential to the security of freedom in a State: it ought not, therefore, to be restrained in this commonwealth.
Declaration of Rights, Art. XXI: The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.
Present
(1780 as amended Nov. 2, 1948)
Declaration of Rights, Art. XVI: The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this commonwealth. The right of free speech shall not be abridged.
Declaration of Rights, Art. XXI: Unchanged.
MICHIGAN
1835
(effective Jan. 26, 1837)
Art. I, § 7: Every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no laws shall be passed to restrain or abridge the liberty of speech or of the press. In all prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
1850
(effective Jan. 1, 1851)
Art. IV, § 42: No law shall ever be passed to restrain or abridge the liberty of speech or of the press; but every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of such right.
Art. VI, § 25: In all prosecutions for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted. The jury shall have the right to determine the law and the fact.
1908
(effective Jan. 1, 1909)
Art. I, § 4: Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of such right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.
Art. I, § 18: In all prosecutions for libels the truth may be given in evidence to the jury; and, if it shall appear to the jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the accused shall be acquitted.
1963
(effective Jan. 1, 1964)(present)
Art. I, § 5: Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.
Art. I, § 19: In all prosecutions for libels the truth may be given in evidence to the jury; and, if it appears to the jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the accused shall be acquitted.
*49MINNESOTA
1857
(effective May 11, 1858)
Art. I, § 3: The liberty of the press shall forever remain inviolate, and all persons may freely speak, write, and publish their sentiments on all subjects, being responsible for the abuse of such right.
1974
(effective Nov. 5, 1974)(present)
Same as 1857 provision.
MISSISSIPPI
1817
(effective Dec. 10, 1817)
Art. I, § 6: Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty.
Art. I, § 7: No law shall ever be passed to curtail or restrain the liberty of speech or of the press.
Art. I, § 8: In all prosecutions or indictments for libels, the truth may be given in evidence; and the jury shall have the right to determine the law and the facts, under the direction of the court.
1832
(effective Jan. 1, 1833)
Art. I, § 6: Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty.
Art. I, § 7: No law shall ever be passed to curtail or restrain the liberty of speech, or of the press.
Art. I, § 8: In all prosecutions or indictments for libel, the truth may be given in evidence; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the facts.
1869
(effective Feb. 18, 1869)
Art. I, § 4: The freedom of speech and of the press shall be held sacred, and in all indictments for libel the jury shall determine the law and the facts, under the direction of the court.
1890
(effective Nov. 1, 1890)(present)
Art. Ill, § 13: The freedom of speech and of the press shall be held sacred, and in all prosecutions for libel the truth may be given in evidence, and the jury shall determine the law and the facts under the direction of the court; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted.
MISSOURI
1820
(effective Aug. 10, 1821)
Art. XIII, § 16: That the free communication of thoughts and opinions is one of the invaluable rights of man, and that every person may freely speak, write, and print on any subject, being responsible for the abuse of that liberty; that in all prosecutions for libels the truth thereof may be given in evidence, and the jury may determine the law and the facts, under the direction of the court.
1865
(effective July 4, 1865)
Art. I, § 27: That the free communication of thoughts and opinions is one of the invaluable rights of man, and that every person may freely speak, write, and print on any subject, being responsible for the abuse of that liberty; that in all prosecutions for libel, the truth thereof may be given in evidence, and the jury may determine the law and the facts, under the direction of the court.
1875
(effective Nov. 30, 1875)
Art. II, § 14: That no law shall be passed impairing the freedom of speech; that every person shall be free to say, write, or publish whatever he will on any subject, being responsible for all abuse of that liberty; and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the *50direction of the court, shall determine the law and the fact.
1945
(effective Mar. 30, 1945)(present)
Art. I, § 8: That no law shall be passed impairing the freedom of speech, no matter by what means communicated; that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for all abuses of that liberty; and that in all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and in suits and prosecutions for libel the jury, under the direction of the court, shall determine, the law and the facts.
MONTANA
1889
(effective Nov. 8, 1889)
Art. Ill, § 10: No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and that in all suits and prosecutions for libel, the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts.
1972
(effective July 1, 1972)(present)
Art. II, § 7: No law shall be passed impairing the freedom of speech or expression. Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty. In all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts.
NEBRASKA
1866
(effective Mar. 1, 1867)
Art. I, § 3: Every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right, .and no laws shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libel the truth may be given in evidence; and if it shall appear to the jury that the matter charged as libellous be true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
1875
(effective Nov. 1, 1875)(present)
Art. I, § 5: Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defense.
NEVADA
1864
(effective Oct. 31, 1864)(present)
Art. I, § 9: Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted or exonerated.
NEW HAMPSHIRE
1776*
(effective Jan. 5, 1776)
There is no specific provision.
1784*
(effective June 2, 1784)
Art. I, § 22: The Liberty of the Press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved.
Art. I, § 30: The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation *51of any action, complaint, or prosecution, in any other court or place whatsoever.
Present
(1784 as amended 1968)
Art. I, § 22: Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved.
Art. I, § 30: Unchanged.
NEW JERSEY
1776*
(effective July 3, 1776)
There is no specific provision.
1844
(effective Sept. 2, 1844)
Art. I, § 5: Every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
1947
(effective Jan. 1, 1948)(present)
Art. I, § 6: Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
NEW MEXICO
1910
(effective Jan. 6, 1912)(present)
Art. II, § 17: Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true and was published with the good motives and for justifiable ends, the party shall be acquitted.
NEW YORK
1777*
(effective Apr. 20, 1777)
There is no specific provision.
1822
(effective Dec. 31, 1822)
Art. VII, § 8: Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press. In all prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
1846
(effective Jan. 1, 1847)
Art. I, § 8: Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
1895
(effective Jan. 1, 1895)
*52Art. I, § 8: Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with the good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
1938
(effective Jan. 1, 1939)(present)
Same as 1895 provision.
NORTH CAROLINA
1776*
(effective Dec. 18, 1776)
Declaration of Rights, XV: That the freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained.
1862
(effective May 20, 1862)
Same as 1776 provision.
1868
(effective July 1, 1868)
Art. I, § 20: The freedom of the press is one of the great bulwarks of liberty, and, therefore, ought never to be restrained, but every individual shall be held responsible for the abuse of the same.
1876
(effective Dec. 31, 1876)
Art. I, § 20: The freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained, but every individual should be held responsible for the abuse of the same.
1970
(effective July 1, 1971)(present)
Art. I, § 14: Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse.
NORTH DAKOTA
1889
(effective Nov. 2, 1889)
Art. I, § 9: Every man may freely write, speak and publish his opinions on all subjects, being responsible for the abuse of that privilege. In all civil and criminal trials for libel the truth may be given in evidence, and shall be a sufficient defense when the matter is published with good motives and for justifiable ends; and the jury shall have the same power of giving a general verdict as in other cases; and in all indictments or informations for libels the jury shall have the right to determine the law and the facts under the direction of the court as in other cases.
1980
(effective 1980)(present)
Art. I, § 4: Same as Art. I, § 9 (1889).
OHIO
1802
(effective Mar. 1, 1803)
Art. VIII, § 6: That the printing-presses shall be open and free to every citizen who wishes to examine the proceedings of any branch of government, or the conduct of any public officer; and no law shall ever restrain the right thereof. Every citizen has an indisputable right to speak, write, or print upon any subject as he thinks proper, being liable for the abuse of that liberty. In prosecutions for any publication respecting the official conduct of men in a public capacity, or where the matter published is proper for public information, the truth thereof may always be given in evidence; and in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.
1851
(effective Jan. 8, 1852)(present)
Art. I, § 11: Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge liberty of *53speech, or of the press. In all criminal prosecutions for libel, the truth may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted.
OKLAHOMA
1907
(effective Nov. 16, 1907)(present)
Art. II, § 22: Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions for libel, the truth of the matter alleged to be libelous may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libelous, be true and was written or published with good motives and for justifiable ends, the party shall be acquitted.
OREGON
1859
(effective Feb. 14, 1859)(present)
Art. I, § 8: No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever, but every person shall be responsible for the abuse of this right.
PENNSYLVANIA
me*
(effective Sept. 28, 1776)
Declaration of Rights, XII: That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.
Plan or Frame of Government, § 35: The printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any part of government.
1790
(effective Sept. 2, 1790)
Art. IX, § 7: That the printing-press shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.
1838
(effective Jan. 1, 1839)
Art. IX, § 7: That the printing-press shall be free to every person who undertakes to examine the proceedings of the legislature or any branch of government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. In prosecution for the publication of papers investigating the official conduct of officers, or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.
1873
(effective Jan. 1, 1874)
Art. I, § 7: The printing-presses shall be free to every person who may undertake to examine the proceedings of the legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may *54freely speak, write, and print on any subject, being responsible for the abuse of that liberty. No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made- shall be established to the satisfaction of the jury; and in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.
1968
(effective Apr. 23, 1968) (present)
Art. I, § 7: The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.
RHODE ISLAND
m2
(effective May 1843)
Art. I, § 20: The liberty of the press being essential to the security of freedom in a State, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defence to the person charged.
1986
(effective Dec. 4, 1986) (present)
Art. I, § 20: The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defense to the person charged.
SOUTH CAROLINA
1776*
(effective Mar. 26, 1776)
There is no specific provision.
1778*
(effective Nov. 30, 1778)
XLIII: That the liberty of the press be inviolably preserved.
1790
(effective June 3, 1790)
Art. IX, § 6: The trial by jury, as heretofore used in this State, and the liberty of the press, shall be forever inviolably preserved.
1865
(effective Sept. 27, 1865)
Art. IX, § 7: The trial by jury as heretofore used in this State, and the liberty of the press, shall be forever inviolably preserved. But the general assembly shall have power to determine the number of persons who shall constitute the jury in the inferior and district courts.
1868
(effective Apr. 16, 1868)
Art. I, § 7: All persons may freely speak, write, and publish their sentiments on any subject, being responsible for the abuse of that right; and no laws shall be enacted to restrain or abridge the liberty of speech or of the press.
Art. I, § 8: In prosecutions for the publication of papers investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and in all indict*55ments for libel, the jury shall be the judges of the law and the facts.
1895
(effective Dec. 31, 1895)
Art. I, § 4: The General Assembly shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble and to petition the Government or any department thereof for redress of grievances.
Art. I, § 21: In all indictments or prosecutions for libel, the truth of the alleged libel may be given in evidence, and the jury shall be the judges of the law and the facts.
1971
(effective May 13, 1971) (present)
Art. I, § 2: Same as Art. 1, § 4 (1895).
Art. I, § 16: In all indictments or prosecutions for libel, the truth of the alleged libel may be given in evidence, and the jury shall be the judges of the law and facts.
SOUTH DAKOTA
1889
(effective Nov. 2, 1889) (present)
Art. VI, § 5: Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right. In all trials for libel, both civil and criminal, the truth, when published, with good motives and for justifiable ends, shall be a sufficient defense. The jury shall have the right to determine the facts and the law under the direction of the court.
TENNESSEE
1785**
(Constitution of the State of Franklin) Declaration of Rights, § 15: That the freedom of the press is one of the greatest bulwarks of liberty, and therefore ought never to be restrained.
1796
(effective June 1, 1796)
Art. XI, § 19: That the printing-press shall be free to every person who undertakes to examine the proceedings of the legislature, or of any branch or officer of government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. But in prosecutions for the publication of papers investigating the official conduct of officers or men in public capacity, the truth thereof may be given in evidence; and in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.
1834
(effective Mar. 6, 1835)
Art. I, § 19: That the printing-press shall be free to every person who undertakes to examine the proceedings of the legislature, or of any branch of office of government; and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. But in prosecutions for the publication of papers investigating the official conduct of officers or men in public capacity, the truth thereof may be given in evidence; and in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other criminal cases.
1870
(effective Mar. 26, 1870) (present)
Art. I, § 19: That the printing-presses shall be free to every person to examine the proceedings of the legislature, or of any branch or officer of the government; and no law shall ever be made to restrain the right thereof.
The free communication of thoughts and opinions is one of the invaluable rights of men, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. But in prosecutions for the publication of papers investigating the official conduct of *56officers or men in public capacity, the truth thereof may be given in evidence; and in all indictments for libel, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other criminal cases.
TEXAS
1836** (Constitution of the Republic of Texas)
Declaration of Rights, § 4: Every citizen shall be at liberty to speak, write, or publish his opinions on any subject, being responsible for the abuse of that privilege. No law shall ever be passed to curtail the liberty of speech or of the press; and in all prosecutions for libels the truth may be given in evidence, and the jury shall have the right to determine the law and fact, under the direction of the court.
1845
Art. I, § 5: Every citizen shall be at liberty to speak, write, or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.
Art. I, § 6: In prosecutions for the publication of papers investigating the official conduct of officers, or men in a public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and, in all indictments for libels, the jury shall have the right to determine the law and the facts under the direction of the court, as in other cases.
1861
(same)
1866
Art. I, § 5: (same)
Art. I, § 6: In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and, in all indictments for libels, the jury shall have the right to determine the law and the facts under the direction of the court, as in other cases.
1869
Art. I, § 5: (same)
Art. I, § 6: In prosecutions for the publication of papers investigating the official conduct of officers or of men in a public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and, in all prosecutions for libels, the jury shall have the right to determine the law and the facts, under the direction of the court as in other cases.
1875 (present)
Art. I, § 8: Every person shall be at liberty to speak, write, or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers investigating the conduct of officers or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels the jury shall have the right to determine the law and the facts under the direction of the court, as in other cases.
UTAH
1845**
(Constitution of the State of Deseret)
Art. VIII, § 5: Every person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right, and no law shall be passed to abridge the liberty of speech or of the press.
1895
(effective Jan. 4, 1896) (present)
Art. I, § 15: No law shall be passed to abridge or restrain the freedom of speech or of the press. In all criminal prosecutions for libel the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted, and the jury shall *57have the right to determine the law and the fact.
VERMONT
1*
(effective July 8, 1777)
Ch. 1, § XIV: That the people have a right to freedom of speech, and of writing and publishing their sentiments; therefore, the freedom of the press ought not be restrained.
Ch. 2, § XXXII: The printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any part of government.
1786**
(effective July 4, 1786)
Ch. 1, § XV: That the people have a right of freedom of speech and of writing and publishing their sentiments, concerning the transactions of government — and therefore the freedom of the press ought not to be restrained.
Ch. 1, § XVI: The freedom of deliberation, speech, and debate, in the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.
1796
(effective Nov. 2, 1796) (present)
Ch. 1, § XIII: That the people have a right to freedom of speech, and of writing and publishing their sentiments, concerning the transactions of government, and therefore the freedom of the press ought not to be restrained.
Ch. 1, § XIV: The freedom of deliberation, speech, and debate, in the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation, or prosecution, action, or complaint in any other court or place whatsoever.
VIRGINIA
1776*
(effective June 12, 1776)
Bill of Rights, § 12: That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.
1830
(effective July 1, 1830)
Art. I: Adopts the Bill of Rights from the 1776 constitution.
1851
(effective Jan. 12, 1852)
Bill of Rights, § XII: Same as Bill of Rights, § 12 (1776).
1864
(effective 1864)
Same as the 1851 provision.
1870
(effective Jan. 26, 1870)
Art. I, § 14: That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments; and any citizen may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty.
1902
(effective July 10, 1902)
Art. I, § 12: That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments; and any citizen may freely speak, write and publish his sentiments on all subjects, being ‘responsible for the abuse of that right.
1970
(effective July 1, 1971) (present)
Art. I, § 12: That the freedom of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.
*58WASHINGTON
1889
(effective Nov. 11, 1889) (present)
Art. I, § 5: Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.
WEST VIRGINIA
1861
(effective June 20, 1863)
Art. II, § 4: No law abridging freedom of speech or of the press shall be passed; but the legislature may provide for the restraint and punishment of the publishing and vending of obscene books, papers, and pictures, and of libel and defamation of character, and for the recovery, in civil actions, by the aggrieved party, of suitable damages for such libel or defamation. Attempts to justify and uphold an armed invasion of the State, or an organized insurrection therein, during the continuance of such invasion or insurrection, by publicly speaking, writing, or printing, or by publishing or circulating such writing or printing, may be, by law, declared a misdemeanor, and punished accordingly.
Art. II, § 5: In prosecutions and civil suits for libel the truth may be given in evidence; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the verdict shall be for the defendant.
1872
(effective 1872) (present)
Art. Ill, § 7: No law abridging the freedom of speech, or of the press, shall be passed; but the Legislature may by suitable penalties, restrain the publication or sale of obscene books, papers or pictures, and provide for the punishment of libel, and defamation of character, and for the recovery in civil actions, by the aggrieved party, of suitable damages for such libel, or defamation.
Art. Ill, § 8: In prosecutions, and civil suits for libel, the truth may be given in evidence; and if it shall appear to the jury that the matter charged as libellous, is true, and was published with good motives, and for justifiable ends, the verdict shall be for the defendant.
WISCONSIN
1848
(effective May 29, 1848) (present)
Art. I, § 3: Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech, or of the press. In all criminal prosecutions, or indictments for libel, the truth may be given in evidence, and if it shall appear to the jury, that the matter charged as libelous be true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.
WYOMING
1889
(effective July 10, 1890) (present)
Art. I, § 20: Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right; and in trials for libel, both civil and criminal, the truth, when published with good intent and justifiable ends, shall be a sufficient defense, the jury having the right to determine the facts and the law, under direction of the court.
* Constitutions of the original thirteen states that were in effect prior to the Constitution of the United States of America.
** Constitutions of states, not among the original thirteen states, that existed prior to the State’s admission to the United States of America.
. In Davenport, the Court suggested that our speech guarantee is not merely "a restriction on governmental interference with speech such as that provided by the First Amendment of the United States Constitution,” but rather "a specific guarantee of an affirmative right to speak,” 834 S.W.2d at 8, as it was not like "the First Amendment, ... framed purely as a negative restriction on enactment of laws....” Id. at 8 n. 13. As the case at bar, like Davenport, involves an alleged government infringement of speech, the issue of whether our provision also governs the behavior of private actors or entities is not presented here. A number of states have held that their free expression guarantees protect expression not only against government restriction, but also against private enforcement of property rights. See Bock v. Westminster Mall, 819 P.2d 55, 60 (Colo.1991); Robins v. Pruneyard Shopping Center, 23 Cal.3d 899, 153 Cal.Rptr. 854, 859-61, 592 P.2d 341, 346-48 (1979), aff'd on other grounds, 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); State v. Schmid, 84 N.J. 535, 423 A.2d 615, 626, 630 (1980), cert. dism’dsub nom, Princeton University v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982); see also Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382, 1390-91 (1982); but see Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Ins. Co., 512 Pa. 23, 515 A.2d 1331, 1334-36 (1986); Meyer v. McDonald, 112 Or.App. 321, 828 P.2d 1054, 1055 (1992). An even larger number, however, have rejected such a notion. See, e.g., Cologne v. Westfarms Assoc., 192 Conn. 48, 469 A.2d 1201, 1207-10 (1984); Citizens for Ethical Govt. v. Gwinnett Place Assoc., 260 Ga. 245, 392 S.E.2d 8, 10 (1990); State v. Lacey, 465 N.W.2d 537-39, 540 (Iowa 1991); Woodland v. *17Michigan Citizens Lobby, 423 Mich. 188, 378 N.W.2d 337, 344-48 (1985); SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496, 498 N.Y.S.2d 99, 102-05, 488 N.E.2d 1211, 1214-17 (1985); State v. Felmet, 302 N.C. 173, 273 S.E.2d 708 (1981); Jacobs v. Major, 139 Wis.2d 492, 407 N.W.2d 832, 839-48 (1987); see also Johnson v. Tait, 774 P.2d 185, 190 (Alaska 1989); Fiesta Mall Venture v. Mecham Recall Committee, 159 Ariz. 371, 767 P.2d 719, 723 (Ct.App.1988); Southcenter Joint Venture v. National Democratic Policy Comm., 113 Wash.2d 413, 780 P.2d 1282, 1285-92 (1989).
The issue of whether state constitutional provisions impose greater restrictions against private deprivations of free expression than the First Amendment has also engaged spirited scholarly debate, not only across the nation, see, e.g., Curtis J. Berger, Pruneyard Revisited: Political Activity on Private Lands, 66 N.Y.U.L.Rev. 633 (1991); Alan E. Brownstein & Stephen M. Hankins, Pruning Pruneyard: Limiting Free Speech Rights Under State Constitutions on the Property of Private Medical Clinics Providing Abortion Services, 24 U.C. Davis L.Rev. 1073 (1991); William Burnett Harvey, Private Restraint of Expressive Freedom: A Post-Pruneyard Assessment, 69 B.U.L.Rev. 929 (1989); Elizabeth Hardy, Note, Post-Pruneyard Access to Michigan Shopping Centers: The “Mailing" of Constitutional Rights, 30 Wayne L.Rev. 93 (1983); Developments in the Law: The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324, 1401-02 (1982), but in Texas as well. See, e.g., James C. Harrington, Free Speech, Press, and Assembly Liberties Under the Texas Bill of Rights, 68 Tex. L.Rev. 1435 (1990); Joseph H. Hart, Free Speech on Private Property — When Fundamental Rights Collide, 68 TexX.Rev. 1469 (1990); Matthew W. Paul & Jeffrey L. Van Horn, Heitman v. State: The Question Left Unanswered, 23 St. Mary’s L.J. 929 (1992); Note, Still as Strangers: Nonemploy-ee Union Organizers on Private Commercial Property, 62 Tex.L.Rev. 111 (1983).
It would be folly to attempt to resolve this complex issue under the inapposite facts before us. I do note, however, that no state has ever held that all private relationships are potentially governed by constitutional principles. As Professor Tribe has observed:
[B]y exempting private action from the reach of the Constitution's prohibitions, it stops the Constitution short of preempting individual liberty — of denying to individuals the freedom to make certain choices, such as choices of the persons with whom they will associate. Such freedom is basic under any conception of liberty, but it would be lost if individuals had to conform their conduct to the Constitution’s demands.
Laurence Tribe, American Constitutional Law § 18-2, at 1691 (2d ed. 1988), earlier edition quoted in part in Woodland v. Michigan Citizens Lobby, 423 Mich. 188, 378 N.W.2d 337, 347 (1985); see also Western Pennsylvania Socialist Workers, 515 A.2d at 1335.
The plurality criticizes my mention of this aspect of Davenport, 859 S.W.2d at 10, yet subsequently quotes this language verbatim. See id. at 10. If Davenport really suggests that all private infringements of speech are constitutional violations, then it truly is a landmark, or perhaps a landmine, in Anglo-American jurisprudence. See Diamond Shamrock v. Mendez, 844 S.W.2d 198, 217 n. 11 (Tex.1992) (Doggett, J., dissenting).
. I simply disagree with Justice Gonzalez’s long-held and oft-repeated view that our guarantee is “more broadly worded” than the First Amendment, so that a literal application requires heightened protection. 859 S.W.2d at 63 n. 7 (Gonzalez, J., concurring).
. A somewhat different articulation, set forth in the concurring opinion in Davenport and slightly modified by me, suggests that we "ordinarily look to such things as the language of the constitutional provision itself, its purpose, the historical context in which it was written, the intentions of the framers [and ratifiers], the application in prior judicial decisions, the relation of the provision to [other parts of the constitution and] the law as a whole, the understanding of other branches of government, the law in other jurisdictions, state and federal, constitutional and legal theory, and fundamental values including justice and social policy.” Davenport, 834 S.W.2d at 30 (Hecht, J., concurring, with my additions noted). Both this and the Edgewood formulation, which it "closely parallels,” Davenport, 834 S.W.2d at 22, are useful constructs for constitutional analysis.
. See Appendix.
. Although Davenport acknowledges that "we may also look to helpful precedent from sister states" as "we build from experience in Texas and elsewhere to enhance individual liberty,” 834 S.W.2d at 20, 22, in fact its interpretative analysis wholly ignores the rest of the Anglo-American experience. The opinion never acknowledges that our Texas free expression provision resembles any other jurisdiction, much less nearly three-quarters of the American states. It cites no other state constitution, convention journal, convention debate, legislative provision or judicial decision in analyzing the Texas Constitution. While the Court expressly invited “other states [to] rely on unique Texas law developed independently by the legislature and judiciary of this state,” id. at 18, it returned the favor only to this extent: “We do not say that the Texas guarantee of free expression inevitably varies in all particulars from the federal, or that of New York or California.” Id. at 22. *19Fortunately, today’s plurality opinion and appendix and Justice Gonzalez's concurring opinion do allude to the provisions of other states and the opinions interpreting them. While I agree with Justice Gonzalez that the plurality's unique view of prior restraint has not been voiced elsewhere, I also concede that I disagree with several opinions interpreting corresponding guarantees. Unlike the plurality opinion, however, I do try to explain the rationale for my differences.
. See Appendix.
. See Appendix.
. See Appendix. See also Article 16 of the General Provisions of the proposed Constitution of 1833, Article I, Section 5 of the proposed West Texas Constitution of 1868, and Article I, Section 8 of the proposed Constitution of 1974.
. See Appendix. Only the Pennsylvania Constitution expressly protected speech, however. Pa. Const., Declaration of Rights, § XII (1776). See also Vt. Const, ch. I, § XIV (1777).
. See, e.g., Lucas A. Powe, Jr., The Fourth Estate and the Constitution: Freedom of the Press in America 22-50 (1991); David Rabban, The Original Meaning of the Free Speech Clause of the First Amendment, in 6 The United States Constitution at 36 (R. Simmons, ed., 1789); Anderson, 30 U.C.L.A. L.Rev. at 523-33; Thomas I. Emerson, Colonial Intentions and Current Realities of the First Amendment, 125 U.Pa.L.Rev. 737, 738-45 (1977); David Rabban, The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History, 37 Stan.L.Rev. 795, 801-06 (1985); but see Leonard W. Levy, Emergence of a Free Press 173-219 (1985).
.As Tucker explained:
Equity will protect the exercise of natural and contractual rights from interference by attempts at intimidation or coercion. Verbal or written threats may assume that character. When they do, they amount to conduct, or threatened conduct, and for that reason may properly be restrained.
220 S.W. at 76. See also Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253, 255 (Tex.1983); Dallas Gen. Drivers, Warehousemen and Helpers v. Wamix, Inc., 295 S.W.2d 873, 875 (Tex.1956); Hawks v. Yancey, 265 S.W. 233, 239 (Tex.Civ.App.—Dallas 1924, no writ) (injunction upheld against persistent harassment where "words and speech became verbal acts” which "constituted conduct"); cf. Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931).
. See Appendix.
. See Appendix.
. Later in the Convention, Evans proposed the most expansive free expression clause ever considered in Texas:
No citizen shall ever be punished for speaking, writing, printing, publishing, or circulating his opinions, on any subject, either by civil suit or indictment; unless malice be proven or implied.
Journal of the Convention of 1845 at 75 (1845); 1845 Debates at 95. This proposal was defeated by the delegates. 1845 Debates at 95.
. At the First Session of the Reconstruction Convention, the Committee of General Provisions recommended that Section 3 of the Bill of Rights read as follows:
The inhibitions of power enunciated in articles from one to eight inclusive, and thirteen, of the amendments to the Constitution of the United States, deny to the States, as well as to the General Government, the exercise of the powers therein reserved to the people, and shall never be exercised by the government of this State.
1 Journal of the Reconstruction Convention of 1868 at 235 (1870). The delegates, however, voted to substitute Sections 3-21 of the Bill of Rights of the 1845 Constitution for the proposed Section 3, id. at 662, and eventually retained the existing language of the free expression guarantee without change. Id. at 663.
. In prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence. Pa. Const, art. IX, § 7 (1790).
. In all prosecutions or indictments for libels, the truth may be given in evidence to the jury; •and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and justifiable ends, the party shall be acquitted.
N.Y. Const, art. VII, § 8 (1821).
. In all prosecutions or indictments for libels, the truth may be given in evidence. Miss. Const. art. I, § 8 (1817).
. See Appendix.
. See Appendix.
. See Appendix.
. See Appendix.
. While the general guarantee protects against the kind of judicial usurpation that occurred at common law, the concluding phrase, "under the direction of the court, as in other cases,” was probably intended to curb jury discretion and power. As Professor Friedman explains:
There was a maxim of law that the jury was judge both of law and of fact in criminal cases. The idea was particularly strong in the first, Revolutionary generation, when memories of royal justice were fresh.... But the rule came under savage attack from some judges and other authorities. There was fear that the rule, if taken seriously, would destroy the "chances of uniformity of adjudication.” It also threatened the power of judges. By the [mid-nineteenth century], many states, by statute or decision, had repudiated the doctrine.
Lawrence Friedman, A History of American Law 284-85 (1985) (emphasis in original). Thus, in opposing the deletion of this clause at the 1845 Convention, Delegate James Armstrong of Jefferson County argued: “If gentlemen want everything tried by a jury without a court, let them make such a general provision in the proper place.” 1845 Debates at 87. Our courts have read this provision to mean only that juries "take the law from the court, and are required to be governed thereby.” McArthur v. State, 41 Tex.Crim. 635, 57 S.W. 847, 849 (1900); see also Squires v. State, 39 Tex.Crim. 96, 45 S.W. 147, 151 (1898).
. See Appendix.
. In failing to consider how one part of the guarantee might inform the meaning of another, the plurality and Justice Gonzalez both err. This partial approach seems to me the principal reason why some other jurisdictions have also, after little consideration, deemed their free expression clauses "broader" in some respect than the corresponding federal guarantee. See, e.g., Mountain States Tel. & Tel. Co. v. Arizona Corp. Comm'n, 160 Ariz. 350, 773 P.2d 455, 459 (1989); In re Hearings Concerning Canon 35, 132 Colo. 591, 296 P.2d 465, 466-67 (1956); O'Neill v. Oakgrove Constr, Inc., 71 N.Y.2d 521, 528 N.Y.S.2d 1, 523 N.E.2d 277, 280 n. 3 (1988); see also State v. Coe, 101 Wash.2d 364, 679 P.2d 353, 359-60 (1984).
. No American state used the term "privilege” in a corresponding provision in 1836, and only two other states use it today. By contrast, twenty-two states use the term "right," fifteen use “liberty," and one uses "freedom.” See Appendix. Although no decisions have discussed this distinction, one could argue that "privilege” is more restrictive than the terms used elsewhere.
. Only four states qualify the jury's role as being both “under the direction of the court” and “as in other cases.” Nine states omit the phrase “as in other cases,” one leaves out only “under the direction of the court,” and five reject both limiting phrases in corresponding provisions. See Appendix.
. The sole case relied upon by the plurality that is arguably not a prior restraint decision might be Ex parte Meckel, 87 Tex.Crim. 120, 220 S.W. 81 (1920), in which the Court of Criminal Appeals struck down on free speech grounds the World War I-era Disloyalty Act, which prohibited a variety of utterances critical of the United States and its armed forces. This case, however, hardly supports the total primacy of free • expression that the plurality advances. The court actually upheld the Act in its initial opinion, concluding that the Act was aimed at preventing breaches of the peace and did not punish speech merely as an end in itself. See id. at 81-82. This reasoning, while consistent both with the historic rationale for seditious libel and other criminal libel statutes, seems even less protective of free speech than was the First Amendment jurisprudence of that era. See Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919) (issue when analyzing seditious speech restriction was whether words “are used in circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent"). On rehearing, however, the court determined that the statute was not aimed at preventing breaches of the peace because it appeared to authorize prosecutions for uttering proscribed language to persons who were not citizens of the United States. The utterance of language critical of the United States or its armed forces, the court implied, would not tend to provoke a violent response from non-citizens. See Ex Parte Meckel, 220 S.W. at 84. Instead, the purpose of the statute was “to denounce as a felony the use of the disloyal language described,” id., as an end in itself.
The only case cited by the plurality even remotely on point factually, Ex parte Henry, 147 Tex. 315, 215 S.W.2d 588 (Tex.1948), is, despite the plurality’s intimations to the contrary, solely a First Amendment case. See id. at 594.
. In April, 1833, a Convention at San Felipe drafted a proposed state constitution as part of an effort to secure separate statehood from Coa-huila. Article 16 of the General Provisions of that constitution provided:
The free communication of thoughts and opinions, is one of the inviolable rights of man; and every person may freely speak, write, print, and publish, on any subject, being responsible for the abuse of that liberty; but in prosecutions for the publication of papers investigating the official conduct of men in public capacity, the truth thereof may be given in evidence, as well as in personal actions of slander; and in all indictments for libles [sic], the jury shall have the right to determine the law and the facts, under the direction of the court as in other cases.
Office of the New Orleans Commercial Bulletin, Constitution or Form of Government of the State of Texas (1833).
. Most of the 1833 Constitution was an amalgamation of the Tennessee, Missouri, and Louisiana constitutions see Joseph W. McKnight, Stephen Austin's Legalistic Concerns, 89 Sw. Hist.Q. 239, 265 (1986). In particular, the first twenty-one general provisions were taken almost verbatim from twenty-one of the first twenty-seven sections of the Declaration of Rights of the Tennessee Constitution of 1796, hardly surprising since Sam Houston, a former governor of Tennessee, chaired the drafting committee at San Felipe. See 1 John Henry Brown, History of Texas From 1685 to 1892 at 229 (1892). The Tennessee free expression provision, of course, was closely modeled on Article IX, Section 7 of the Pennsylvania Constitution of 1790. Compare Tenn. Const, art. XI, § 19 (1796) with Pa. Const, art. IX, § 7 (1790).
. As to the Constitution of 1845, the Court notes only a vote to reverse a preliminary decision to adopt the free expression provision of the Tennessee Constitution of 1790, 834 S.W.2d at 8, n. 7, see 1845 Journal at 74-75, 1845 Debates at 94-95, and a vote to reverse a preliminary provision requiring that "all publications injurious to female reputation” be "deemed false and libellous" without inquiry into the facts. See 1845 Journal at 74-75, 1835 Debates at 94, 303. As to the female reputation clause, the Court concludes: "Not even conventional limits on free speech curbed the sweeping scope of the free-speech guarantee.” See Davenport, 834 S.W.2d at 8 n. 7. In fact, no other state, either then or now, has ever included such “conventional limits” in its constitution; at most, this rule was provided only by statute. See Tex.Penal Code arts. 750 & 751 (1895).
As to the Convention of 1875, the Court points to two similarly irrelevant occurrences. After the Convention voted to retain the 1845 lan-
guage in substantially unchanged form, Delegate William P. McLean of Titus County attempted to introduce at least the substance of the defeated language into the general provisions by resolving "that the truth of words spoken or published, and good motives in speaking or publishing, may be pled in case of libel suits." See Galveston Daily News, October 23, 1875, at 1. The action of the General Provisions Committee in failing to refer this language to the Convention, 1875 Journal at 553-61, is somehow trumpeted by the Court as a victory for "an expansive freedom of expression clause." 834 S.W.2d at 8. The first resolution of Delegate E.W. Brady of Grimes County, referred to the Bill of Rights Committee, also contained language which, at least to the framers, was surely more protective of free expression than that finally adopted:
No law shall ever be passed restraining the free expression of thought, opinions and ideas, or restricting the right to speak, write or print freely on any subject whatever; but, for the libelous abuse of that right, every person shall be responsible.
1875 Journal at 62. The Committee did not include the suggestion of confining abuse to defamatory conduct in its report to the Convention. See id. at 272.
Only if one accepts Davenport’s apparent suggestion that the free expression clause applies to private conduct can Brady’s proposed language be considered more narrow than the provision as adopted. If this issue was not actually presented in Davenport, see n. 1 above, then the Court erred in characterizing the Convention’s action as a victory for greater expression rights. 834 S.W.2d at 8.
. The draft language of the Bill of Rights Committee retained, in its proposed Section 8, the word "citizen” as used in previous constitutions:
Every citizen shall be at liberty to speak, write or publish his opinion on any subject, being responsible for the abuse of that privilege. And no law shall ever be passed curtailing the liberty of speech, or of the press. And in all civil or criminal actions for libel, the truth thereof may be given in evidence to the jury, and if it shall appear that the alleged libelous matter was published with good motives, and for justifiable ends, it shall be a sufficient defense.
1875 Journal at 272.
As we have seen, the delegates rejected this new language and retained the text of the previous four constitutions, which differed as only to the final portion of the guarantee. Upon engrossment, however, the printer included only the changed language, omitting the unchanged first two sentences. Delegate E.L. Dohoney of Lamar County "drew attention to [this] omission” on the third reading of the Bill of Rights, and his substitute to restore the deleted language was adopted. See Texas Daily Gazette, October 22, 1875, at 2. Although Dohoney’s motion joined the two omitted sentences with a semicolon, it retained the word “citizen.” 1875 Journal at 434. Thus, the Bill of Rights passed its third reading with the traditional language intact. See Galveston Daily News, October 26, 1875, at 1. On the last day of the Convention, however, the entire document was read aloud and approved by the delegates. This was the first version in which the word "person” appeared. See Galveston Daily News, November 27, 1875, at 2; Houston Daily Telegraph, November 28, 1875, at 2.
Although the plurality derides my suggestion that the word change might have been a “mere” printer’s error, 859 S.W.2d at 11 n. 32, it offers absolutely no explanation for how this substitution was accomplished absent a vote of the delegates or, as far as the surviving record show, even their conscious acquiescence.
. Houston acquiesced in the rebuff, but invited anyone "who desires to hear Sam Houston speak and will follow me hence to yonder hillside under the shade of yon spreading live oak on the soil of Texas[.] I have a right to speak there because I have watered it with my blood!" Marquis James, The Raven 390 (1929).
. This position was again apparently asserted by the Court in Davenport, which suggested that, in interpreting their own constitutions, state courts "may not deny individuals the minimum level of protection mandated by the Federal Constitution." Id. at 15. Literally read, this position makes no logical sense. If our text was written at a different time by different people with different concerns, then the protection it affords may be greater, lesser, or the same as that provided by a different provision in the United States Constitution. As Davenport itself notes, “ '[o]ur Texas Forbears surely never contemplated that the fundamental state charter, crafted after years of rugged experience on the frontier and molded after reflection on the constitutions of other states, would itself veer in meaning each time the United States Supreme Court issued a new decision.’ ” Id. at 16 (quoting James C. Harrington, The Texas Bill of Rights 41 (1987)).
The suggestion that state bills of rights cannot afford less liberty protection than their federal *33counterparts confuses independent state constitutionalism with the mandate of the Supremacy Clause, U.S. Const, art. VI, cl. 2, that federal rights, if asserted, not be ignored. Thus, in this case, our Court could not deny relief to the relators on state constitutional grounds without also considering all properly pled federal constitutional claims. But the "federal safety net” is a false construct, now rejected by an increasing number of courts and scholars. See, e.g., State v. Smith, 301 Or. 681, 725 P.2d 894 (1986) (Oregon Constitution does not require Miranda warnings); Black v. Employment Div., 301 Or. 221, 721 P.2d 451 (1986) (freedom of religion narrower under Oregon Constitution), vacated and remanded sub nom., Employment Division v. Smith, 485 U.S. 660, 108 S.Ct. 1444, 99 L.Ed.2d 753 (1988); Serna v. Superior Court, 40 Cal.3d 239, 219 Cal.Rptr. 420, 707 P.2d 793 (1985) (California Constitution requires less stringent speedy trial standards than federal counterpart); Jeffrey Amestoy & Julie Brill, State Constitutions from the Attorney General’s Perspective: An Institutional Schizophrenia, 1 Emerging Issues in State Constitutional Law 229, 236 (1988); Ronald K.L. Collins & Peter J. Ga-lie, Models of Post-Incorporation Judicial Review: 1985 Survey of State Constitutional Individual Rights Decisions, 55 U.Cin.L.Rev. 317, 327 (1986); John M. Devlin, State Constitutional Autonomy Rights in an Age of Federal Retrenchment: Some Thoughts on the Interpretation of State Rights Derived from Federal Sources, 3 Emerging Issues in State Constitutional Law 195, 243 (1990); Peter J. Galie, Modes of Constitutional Interpretation: The New York Court of Appeals’ Search for a Role, 4 Emerging Issues in State Constitutional Law 225, 227-28 (1991); Hans A. Linde, Does the "New Federalism" Have a Future?, 4 Emerging Issues in State Constitutional Law 251, 258-59 (1991); Earl M. Maltz, The Political Dynamic of the "New Judicial Federalism, ”2 Emerging Issues in State Constitutional Law 233, 236-37 (1989); Neil C. McCabe, The State and Federal Religion Clauses: Differences of Degree and Kind, 5 St. Thomas L.Rev. 49 (1992); Steven J. Twist & Mark Edward Hessinger, New Judicial-Federalism: Where Law Ends and Tyranny Begins, 3 Emerging Issues in State Constitutional Law 173, 185-87 (1990); Robert F. Williams, Methodological Problems in Enforcing State Constitutional Rights, 3 Ga.St.L.Rev. 143, 151 (1986-87); contra Ann Althouse, How to Build a Separate Sphere: Federal Courts and State Power, 100 HarvL.Rev. 1485, 1491 (1987); William Brennan, The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U.L.Rev. 535, 550 (1986); Charles G. Douglas, Federalism and State Constitutions, 13 Vt.L.Rev. 127, 143 (1988); Carol F. Peterkort, The Conflict Between State and Federal Constitutionally Guaranteed Rights: A Problem of the Independent Interpretation of State Constitutions, 32 Case W.L.Rev. 158, 161 (1981); William F. Swindler, Minimum Standards of Constitutional Justice: Federal Floor and State Ceiling, 49 Mo.L.Rev. 1, 15 (1984).
Fortunately, today's plurality opinion recognizes that “an independent state judiciary may interpret its fundamental law as affording less protection than our federal charter." 859 S.W.2d at 13. Regardless of what conclusions we reach in this or other cases, this recognition will enhance the possibility of principled state constitutional development.
. In insisting that courts and litigants "rely on the state constitution in the first instance,” id. at 18, the Court builds unnecessary rigidity into our decision-making process. Just as we do not insist that all contract claims be considered before accompanying tort claims, I see no need for the artificial construct in constitutional litigation.
. Relators argue, however, that because the restraining orders targeted only persons identified with the "pro-life” movement, the orders were, in context, aimed at the “pro-life” message, and are thus not "content-neutral.” This argument has been explicitly rejected in a number of the cases cited above. See McMonagle, 939 F.2d at 63 (court order applying only to pro-life protesters not "content-based” because “only those persons [were] proven [to] have created ... a threat of violence and intimidation"); Terry, 886 F.2d at 1363-64; Hirsh, 401 S.E.2d at 533; Project Jericho, 556 N.E.2d at 162; Bering, 111 P.2d at 926; cf. Medlin v. Palmer, 874 F.2d 1085, 1090 (5th Cir.1989) (ordinance prohibiting use of hand-held amplifiers within 150 feet of medical facilities was not content-based restriction of pro-life demonstrators’ speech where *35language of ordinance said nothing about content of amplified speech); but cf. Thomason v. Jemigan, 770 F.Supp. 1195, 1199-1203 (E.D.Mich.1991) (city’s vacation of cul de sac to abortion clinic in order to permit clinic to invoke trespass laws over areas not "content neutral" where pro-life protesters were sole source of traffic problems that precipitated city’s action).
. The Planned Parenthood order additionally prohibited "physically invading, entering without consent, [and] damaging” of that facility or its parking lots. Further, it prohibited "Obstructing or interfering in any way with the entrance or exit of pedestrian or vehicle traffic" to or from the street in front of the clinic.
. The Planned Parenthood order also extended the protections described under this provision and the one preceding it to persons entering and exiting the intervening businesses.
.In Burson and Cox, for example, the 100-foot bans were the sole provision in the challenged restrictions. See also Boos v. Barry, 485 U.S. at 329, 108 S.Ct. at 1168.