Sterner Days for Texas Free-Speech Law

Situation excellent: On Wednesday the Texas Court of Criminal Appeals affirmed the Beaumont Court of Appeals in Leax v. State.

When the Court of Criminal Appeals granted discretionary review on Leax, I thought it would be the culmination of almost four years of fighting that began with this post after I realized that section 33.021 of the Texas Penal Code, in which the Texas Legislature created a constitutionally valid offense in subsection (c) and then eliminated one of the elements that made it constitutional in subsection (d), was not constitutional.

The first litigation was in a case called Wheeler. I filed a habeas petition in the trial court in June 2014. The trial court denied relief, we appealed, and the First Court of Appeals allowed oral argument in April 2015. Oral argument went well, I thought—I wrote then that the opinion would “at least apply the correct standard of review,” that is, strict scrutiny.

Here’s the argument:

Disappointingly, the First Court did not apply the correct standard of review. It held that strict scrutiny (and the presumption of invalidity) did not apply.

Statutes will almost never pass strict scrutiny and the presumption of invalidity. They will almost never fail the intermediate scrutiny and presumption of validity that apply to content-neutral statutes. Whether a regulation is content based will almost always be outcome determinative.

And so battle lines were drawn: Is section 33.021 of the Texas Penal Code a content-based restriction or not?

I filed a petition for discretionary review (PDR) in Wheeler. The Court of Criminal Appeals refused it. No explanation required or given.

Writs, appeals, and PDRs followed on FisherAlvarez, Chapman, Radford, Mahmoud, Parker, and Leax. I raised the same issue in each case—is section 33.021 unconstitutionally overbroad under the First Amendment—but wrote a fresh PDR each time, with a different tone and a slightly different pitch. (I only had to get one granted, so there was no point in filing the same PDR twice.)

In September of last year the Court of Criminal Appeals granted PDR in Leax. It had not yet acted on the other six PDRs. It ordered oral argument on Leax on Valentine’s day.

That was a win. It’s hard for an elected court to hold a statute unconstitutional, but the Texas Court of Criminal Appeals has been one of the few with the fortitude to do so recently. And even if the Court of Criminal Appeals ultimately found, for the children, that section 33.021 met strict scrutiny, it would find that section 33.021 is a content-based restriction (which is the question on which it granted PDR).

And that would be epochal.

The Wheeler opinion, you see, got the question “is section 33.021 a content based restriction” wrong because of dicta in Ex Parte Lo suggesting that 33.021(c) restricts conduct rather than content.

“Conduct or content” is a false dichotomy. Some conduct—expressive conduct, symbolic speech—is speech, and all speech is conduct.

Post Lo, most Texas intermediate courts of appeals relied on its dicta to hold that statutes—not only section 33.021, but other speech-restricting statutes—were not content based (so that strict scrutiny, the presumption of invalidity, and other rules whose application statutes are not likely to survive do not apply).

These statutes include section 33.07 of the Texas Penal Code (Online Impersonation), section 36.06 of the Texas Penal Code (Retaliation), section 32.51 of the Texas Penal Code (Fraudulent Use or Possession of Identifying Information), and section 42.07 of the Texas Penal Code (Harassment).

Once the Court of Criminal Appeals has straightened out the law on what makes a regulation content based—perhaps reaffirming the test it stated in Ex parte Lo and Ex parte Thompson, “If it is necessary to look at the content of the speech in question to decide if the speaker violated the law, then the regulation is content based”—all of these statutes will be back on the table.

Because you have to look at the content of a communication to decide if the speaker violated the law, 33.021 is a content-based regulation under the Lo test. I was excited to argue the case before the Court of Criminal Appeals, and more excited when the State, in the first 20 seconds of its argument (mp3 audio, State’s argument begins at about 11:00), admitted that section 33.021 is a content-based regulation.

How could we lose?

Well, on procedural grounds, of course.

As well as Leax v. State, the Court of Criminal Appeals had granted PDR on Ex parte Ingram, a case out of San Antonio raising the same issue. Procedurally the two cases were different—as you might deduce from the titles (“styles”) of the cases, Leax was a postconviction appeal and Ingram a habeas appeal—but when the court handed down an opinion in Ingram in June, I didn’t see how the logic of Ingram didn’t apply to Leax as well: Because the State hadn’t “invoked” the “anti-defensive issue” of subsection (d), it wasn’t properly before the court.

Never mind that that logic is crazy talk (you know a court has gone off the rails when it has to invent a legal-sounding phrase like “anti-defensive issue,” rather than invoking a recognized principle to justify the result); the State didn’t have to invoke subsection (d) in Leax either; Mr. Leax knew that the State would “invoke” it at trial, and so he pled guilty in the face of the law that everyone knew would apply.

So I don’t know what took the court more than three months to decide in Leax. I guess they were looking for the right words for the procedural avoidance of the issue on which they had granted PDR and on which the State had confessed error: Is section 33.021 content based?

They found the words: The claim is cognizable, but there is not enough of a record that the State invoked subsection (d).

Never mind the procedural underpinning of an overbreadth challenge—the chilling effect of an overbroad statute. Never mind that this chilling effect exists whether the State invokes an “anti-defensive issue” or not.

This works mischief.

If the Texas Legislature writes a statute saying, “It is a felony to cause harm to a public official with words that constitute a true threat,” and includes as an “anti-defensive issue,” “It is not a defense that the words are not a threat of unlawful violence,” it has criminalized words that hurt public officials’ feelings (hurt feelings being harm for purposes of Texas criminal law) and the only way for someone to challenge this statute is to go to trial (the only way to force the State to invoke this “anti-defensive issue”) and lose.

That’s nutso. The chilling effect comes from the existence of the statute, not from the State’s application of it.

Will the Texas Legislature accept the Court of Criminal Appeals’ invitation to play this “anti-defensive issue” game? Bet on it.

We shall deal with that later. For now the Texas Court of Criminal Appeals has used its “anti-defensive issue” theory to avoid holding that section 33.021 is a content-based restriction. (Had they so held, they would have had to presume the statute unconstitutional, and then could have used the same rationale to exclude subsection (d) from their strict scrutiny analysis: “Section 33.021 passes strict scrutiny, as we narrowed it in Ingram and disregarding subsection (d), which the State did not invoke in this case.”)

What the Court of Criminal Appeals has not done is to admit that section 33.021 is content based or hold section 33.021 constitutional. What it has done is to give us a roadmap forward.

When the court decided Leax it also refused PDR on FisherAlvarez, Chapman, Radford, Mahmoud, Parker, and others. There are also people whose 33.021 trials were on hold awaiting a ruling from Leax.

Any of these people who do not have a straight-faced argument that they did not intend to meet, or that they were engaged in a fantasy at the time of the offense, will no longer be helpful in the constitutionality fight.

Any of those people who do have a straight-faced argument either that they did not intend to meet with the minors with whom they communicated, or that they were engaged in fantasy at the time of the offense, should have their lawyers talk to me. What we need, for their good and for the good of everyone else who has pled guilty to section 33.021(c), is trials.

At a trial, if you have a fantasy defense, we can put the State to the choice of a) invoking (that is, instructing the jury on or arguing to the jury) subsection (d); or b) letting the jury consider your fantasy defense. (If the jury knows you don’t have a straight-faced fantasy defense, they will perhaps strategically choose (b) and trust that the jury will reject your fantasy defense.) I’ll advise your lawyer on how to preserve the issue, and I’ll be there to write that part of your appeal.

Meanwhile, I have PDRs, intermediate appeals, or trial-court litigation pending on Online Impersonation, and Retaliation, and I have intermediate appeals or trial-court litigation pending on Unlawful Disclosure or Promotion of Intimate Visual Material (Texas Penal Code section 21.16) so the Court of Criminal Appeals will have many other opportunities to explain that content-based regulations really are content-based regulations.

Some day—and it may not be soon, but I’m playing the long game here—the Court of Criminal Appeals is going to face that issue, and the State is going to have to start trying to rebut the presumption of unconstitutionality on speech-restricting statutes.

I’ve got them just where I want them. Am attacking.


8 responses to “Sterner Days for Texas Free-Speech Law”

  1. Vindication is in sight! It’s amazing how the diggers dig. Mark I know that they are only making it easier for you to actually get down to place where we will find the prize and make this statute and others like it non-existent. It’s very clear that the result of Leax was not based on your hard faught battle. This is a minor detour I believe. It took me years to get to a place where I would allow this to happen in my life and I am confident that when I [we] am [are] on the other side of this that I will have realized the depths of my mind and know that when I make these decisions and make bad choices that I am also deciding for my family and those closest to me to alter a lifestyle that they have become accustomed to and have zero input as to what happens next. John Maxwell’s father used to tell him, ‘When you made the choice to start, you made the choice to finish. It’s not two choices, it’s one.’ Personally, I fight forward every day because I know where I need to be when that day comes and the flood of tears comes with the realization that what is now is now merely a memory. Step forward my friends. Keep working towards that day. It’s coming…

  2. The opinion in Leax is a shameful dodge. The goal posts were moved. It’s not enough that an unconstitutional statute exists, it must have been used at a jury trial!? Of course they know exactly how many people went to trial (likely zero), prior to this opinion, and used a defense that the statute forbids using. This is probably the exact thing they spent several months researching before handing down this opinion – the likelihood they would later have to rule on the content based nature. So, now it’s left to what few people have pending cases under the previous statute to go to trial and force the State to invoke the “anti-defensives” – cases in which the State could drop charges. Then leaving the only option to strike what the State obviously knows is an unconstitutional statute up to someone getting a new trial and following the path they have laid out – one that requires the accused to clearly not have intended the meeting to occur and the State instructing a jury to use the “anti-defensives”. How many people are there that can exhibit that they did not intend for a meeting to occur (I can), who have likely completed or have nearly completed the punitive repercussions (I have), and want to go back for a new trial, go to trial, get convicted with “anti-defensives”, either go to prison or back on probation, and wait out the appeals process…and have the additional money to do so…with the only light at the end of that tunnel being not having to register, which they are probably closer to (post 10 yr) than going through the process above. Truly a WWJD scenario, Jesus with disposable income.

    The CCA knows exactly what they are doing and made a probably safe bet that no one is going to want to go through that a second time.

    Win for the State. Doesn’t matter if an unconstitutional law is written, it must be ACTIVELY used against a citizen in order for it to be rendered unconstitutional. What a joke.

  3. The current Judges (they are not called “Justices”) on the CCA are mostly former State appellate division ADAs. Judge You-know-who has recently expanded the “Community Caretaking Function” exception to the Fourth Amendment, adopting the Federal “Good Faith” exception, and other shenanigans. Intellectual dishonesty abounds with the current CCA. I am not surprised that they will stretch their reasoning as far as they can do with a straight face in order to deny Constitutionally based, meritorious arguments about Texas statutes that are Unconstitutionally over broad. Fight the Good Fight every moment, every minute, every day!

  4. I stumbled on your blog.
    Very interesting and pertinent to my current case. I am a pro se litigant; I am licensed but do not practice law.
    I am attempting to have the Houston Nuisance Statute held unconstitutional on due process grounds. If one gets a “notice of violation” the City has a one year right to “abate the violation” prior to any Court hearing. So the City can enter, search and seize property with no warrant and no judicial oversight of any type. Indeed there is no method for any pre-abatement judicial review. Post abatement review is only triggered if the City brings criminal charges and then the only issue is the cost of abatement and fines. A finding of illegal abatement brings no relief. This violates the Texas Constitution as per City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2011).
    I further argue that the defense to the weeds section, the Natural Area Permit, should be reviewed under the strict scrutiny as the NAP only regulates natural style gardens. As it is not content neutral strict scrutiny applies. The Court is taking it’s time in responding to the City’s Plea to the Jurisdiction–I think it is because the judge see’s the validity of my arguments but is hesitant to declare the City’s nuisance Ordinance unconstitutional.

  5. I read your comment on the Leax ruling and while it seems like a loss you seem to take it as a potential win. I guess since you talk the long game the appeals court said something in their decision that has opened the door for a very powerful attack from you under a certain set of circumstances.

    Not the same issue but I was wondering what we would need to do to get something like a class action lawsuit against the federal government for the new “non-punitive” requirement for a notice put on “covered” sex offenders?

    • That fight is lost. Almost everyone charged under this statute pleaded guilty, so not enough people tried their cases, challenging the constitutionality of the statute, to get the critical mass needed to press the challenge through to the Court of Criminal Appeals.

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