2015.87: Texas’s Disorderly Conduct Statute Unconstitutional


My client was charged by information with

intentionally and knowingly display[ing] a deadly weapon, namely, A FIREARM, in a public place and in a manner calculated to alarm

This is an accusation of disorderly conduct under Section 42.01(a)(8) of the Texas Penal Code:

Sec. 42.01. DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:

. . . . .

(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;

Content-based restrictions on speech are presumptively invalid under the First Amendment. Is Section 42.01(a)(8) a content-based restriction on speech?

Speech includes expressive conduct.

A statute is a content-based restriction on speech if it regulates speech based on its message, its subject matter, or its intent.

Section 42.01(a)(8) forbids not only the exhibition of firearms to threaten or for no communicative purpose, but also the symbolic speech of exhibiting firearms to make points, including political points, such as the open-carry demonstrations characterized by the media as “alarming.”

A communication “calculated” to have an effect has been described by the Texas Supreme Court (in an opinion not binding in criminal cases) as one that an ordinary reasonable speaker would foresee is likely to cause that effect. Not all speech that is calculated to alarm is intended to alarm, but all speech that is intended to alarm is calculated to alarm.

If the Texas Supreme Court’s definition of “calculated” applies, then sometimes displaying a firearm in a manner calculated to alarm will not be symbolic conduct (because it is not intended to alarm, even though an ordinary reasonable speaker would foresee that it is likely to cause that effect), and is unprotected. But only sometimes.

Because Section 42.01(a)(8) forbids some speech that is intended to alarm based on that intent, it is a content-based restriction on speech and is presumptively invalid. The State has the burden of overcoming this presumption.

The State might meet its burden by showing that the speech restricted by Section 42.01(a)(8) falls entirely into a category of unprotected speech; or it might meet its burden by showing that the statute meets strict scrutiny—that it is necessary and narrowly written to satisfy a compelling governmental interest.

Remember that speech may not be forbidden just because it causes emotional harm. We are allowed to offend each other, to embarrass each other, and even to alarm each other. So speech “calculated to alarm” does not fall entirely into any category of unprotected speech.

What we are not allowed to do is to threaten each other. The nearest applicable category of unprotected speech is “true threats.”

Sometimes displaying a firearm in a manner calculated to alarm will be a “true threat.” But only sometimes. For example: open?carry protesters display firearms in a manner calculated to alarm Moms Demand Action, but they do not intend to threaten injury. Displaying a firearm with the intent to put a person in imminent fear of bodily injury is aggravated assault under Section 22.02 of the Texas Penal Code as well as disorderly conduct under Section 42.01(a)(8). If open-carry protesters intended to threaten imminent injury, they would be committing assault.

The statute is a content-based restriction on speech, so it is presumptively unconstitutional. The speech that is restricted does not fall entirely into a category of unprotected speech. The remaining question is whether the statute satisfies strict scrutiny—whether it is necessary and narrowly drawn to satisfy a compelling state purpose.

The legitimate state interest in Section 42.01(a)(8) is an interest in keeping people from being threatened. This interest is satisfied by other sections of the Texas Penal Code. Forbidding people from “alarming” each other with firearms. The fact that all of the speech that Section 42.01(a)(8) restricts is either forbidden by Section 22.02 (true threats) or constitutionally protected (everything else) militates against the statute being either necessary or narrowly written.

So since the statute is a content-based restriction on unprotected speech, and it is not narrowly written to satisfy a compelling governmental interest, Section 42.01(a)(8) is unconstitutional.

At least, that’s what I’d argue if the State hadn’t dismissed my client’s case.


4 responses to “2015.87: Texas’s Disorderly Conduct Statute Unconstitutional”

  1. Graniting that Elonis mandates specific intent, it’s not clear that the true threat exception is entirely covered by 22.02 given the imminent fear requirement there has not been articulated as an element of the true threat exception. Of course, adding 22.07 to the analysis captures a lot more of the possible true threats. Interesting argument.

  2. The courts have not ruled the statute as being unconstitutional as far as I know. Please update this post when you can. I presently have a client charged with a violation of this very same statute in Harris County.

  3. Upon further legal research, the Texas CCA did deliver a 5 to 4 opinion on May 15, 2019, State v Ross, 573 SW 3d 817 (PD-1066-17) which ruled that the state did not have to allege the manner and means that calculated (caused) the alarm in the complaint/information. Your comments would be most welcome and appreciated.

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