This week the Fort Worth Court of Appeals decided Ex parte Barton, No. 02-17-00188-CR, holding unconstitutional section 42.07(a)(7) of the Texas Penal Code.
This is an issue that I have pending in Houston’s First and Fourteenth Courts of Appeals, the Texas Court of Criminal Appeals (Ex parte Sanders), and, with the University of Texas’s Supreme Court Clinic, in the United States Supreme Court (Ogle v. Texas).
After revenge porn, harassment is the next hotness in free-speech law. It’s the next hotness because most lawyers, who don’t have free-speech practices and so aren’t intimately familiar with that body of law, assume that harassment is unprotected speech.
So I read the Barton opinion with great interest. And it’s a strange little opinion. I like the result, but the way the court got there is clownlike.
You may be familiar with my graphical representation of the Supreme Court’s practice for handling speech-restricting statutes:
In Barton the court went off the page. Mr. Barton did not argue that the statute was a content-based restriction. The court should have either a) addressed the argument even though Mr. Barton didn’t make it; or b) reviewed the statute as a content-neutral restriction on speech.
The court did neither.
The Fort Worth Court first “held that section 42.07(a)(7) affects protected speech.” While that is true, the court did not heed the Supreme Court’s admonishment that
From 1791 to the present, ”however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.”
The Fort Worth Court did not mention why speech restricted by section 42.07(a)(7) is protected: It falls into no recognized category of historically unprotected speech.
Instead it proceeded to discuss the statute’s “vagueness and overbreadth.”
Vagueness and overbreadth are very different things. Lawyers love to throw them in together. A statute that clearly defines the proscribed speech (intended to cause embarrassment, and reasonably likely to do so) is not vague, but is overbroad. If a court were to interpret the statute narrowly to eliminate the overbreadth, that might then render the statute vague.
The Fort Worth Court in Barton wrote, “Vagueness and overbreadth are intertwined,” but never explained how they were intertwined. Instead it proceeded to a description of overbreadth:
A statute is overbroad in violation of the First Amendment guarantee of free speech if in addition to proscribing activity that may be constitutionally forbidden, it sweeps within its coverage a substantial amount of expressive activity that is protected by the First Amendment.
That’s true, but overbreadth is a concept that applies to content-based restrictions, not content-neutral restrictions. The question in an overbreadth analysis is whether the statute sweeps in a real and substantial amount of protected (i.e. protected from content-based restriction) speech in relation to its legitimate scope (i.e. the unprotected speech that it captures).
A restriction on speech is either content based or content neutral. There is no third option.
Whether speech is protected or unprotected depends on its content. If a statute is truly content-neutral, it will capture both protected and unprotected speech. The regulation forbidding loud sounds in the park after dark operates to restrict the screaming of obscenities and the singing of hymns equally.
So the defendant in Barton didn’t claim that the statute is a content-based restriction (it is), but the court didn’t treat it as content neutral. (Grammar tip: when the compound adjective precedes the noun, it takes a hyphen; when it follows the noun, it does not.)
The court cited U.S. v. Williams and other cases for the proposition that “annoying” is vague (and it is—we can’t necessarily know whether our speech will be annoying) but section 42.07(a)(7) doesn’t require that the speech be annoying; instead it requires that the speech be intended to annoy. A speaker can certainly know whether he intends his own speech to annoy; he is usually the only one who can know this for sure.
The intent to cause emotional harm is a threshold under the statute. This is not vague. Whether the speech is reasonably likely to cause the emotional harm is an additional element that might save some incompetents from themselves, but the intent to cause emotional harm is the greater hurdle, narrowing the restricted speech more than the reasonable likelihood of such harm.
While vagueness is a doctrine that might apply to a content-neutral restriction, overbreadth only applies to content-based restrictions. The overbreadth question—does the statute restrict a real and substantial amount of protected speech, in relation to its legitimate sweep—makes no sense in reference to a content-neutral restriction, which restricts protected and unprotected speech equally.
I think the court could probably have addressed overbreadth on its own motion. But having disclaimed a content-based analysis, the court should have left overbreadth alone. Instead the Fort Worth Court concluded:
Experience has taught us that whether the President’s tweets—or an ex-spouse’s emails—are annoying or offensive is a highly subjective inquiry, and the view of whether these communications are innocuous, humorous, annoying, or offensive will differ greatly from person to person. Consequently, we agree with Barton that the electronic-communications subsection is facially unconstitutional as vague and overbroad; as such, it is void and unenforceable.
The Fort Worth Court can’t quite put its finger on why the statue is overbroad. An honest answer would be, “we are allowed to annoy and offend each other.”
I think this is a good example of a Texas court deciding what the result should be—the statute should be held unconstitutional—and doing whatever it takes to get there. Here, unusually, I agree with the result that the opinion is oriented toward.
(Barton deals with an earlier version of the statute, which has only been broadened since then. The current statute suffers from the same infirmities, and then some.)