This post examines a recent opinion from the Tenth Court ofAppeals of Texas – Waco: Ex parte
Maddison, 2017 WL 1540668 (2017). The court begins the opinion by
explaining how it arose and what offense was at issue:
Billy Mack Maddison was indicted for
the felony offense of online harassment under section 33.07(a)(1) of theTexas Penal Code. See TEX. PENAL CODE ANN. § 33.07(a)(1) (West
2016). Maddison filed a pre-trial application for writ of habeas corpus in
which he asserted that section 33.07 is unconstitutional because it
violates the First Amendment, the Due Process Clause, and the Dormant CommerceClause of the United States Constitution. Maddison requested that the trial
court declare section 33.07 unconstitutional and, in turn, dismiss
his indictment. The trial court granted habeas relief, declaring all of section
33.07 unconstitutionally overbroad and vague as written. The State
appeals.
Ex parte Maddison,
supra.
The Court of Appeals began the substantive part of its
opinion by explaining that
[a]s noted above, Maddison was indicted
under section 33.07(a)(1) of the Texas Penal Code, which provides the
following:
A person commits an offense if the
person, without obtaining the other person's consent and with the intent to
harm, defraud, intimidate, or threaten any person, uses the name or persona of
another person to:
(1) create a web page on a commercial
social networking site or other Internet website; or
....
Id. § 33.07(a)(1).
Specifically, the indictment alleged that Maddison, without obtaining the
consent of Felicia Colburn, intentionally or knowingly used the name and/or
persona of Colburn to create a webpage on Facebook, a commercial social-network
site, with the intent to harm, defraud, intimidate, or threaten Colburn. See
id. An offense under subsection (a) is a third-degree felony. Id. §
33.07(c).
Ex parte Maddison,
supra.
The Court of Appeals goes on to explain that Maddison
filed a pre-trial application for writ of habeas corpus, arguing that section 33.07 is unconstitutional
because it is a content-based restriction that criminalizes a substantial
amount of protected speech. Maddison further argued that section
33.07 is unconstitutionally vague and violates the Dormant Commerce Clause
of the United States Constitution. See Ex parte Thompson,
442 S.W.3d 325, 333 (Tex. Crim. App. 2014) (stating that a defendant may
file a pre-trial application for writ of habeas corpus to raise a facial challenge to the constitutionality of a statute that defines a charged
offense).
On February 25, 2016, the trial court
signed an order granting Maddison habeas relief. In its order, the trial court
stated the following:
`The court has carefully read the
briefs of the parties and, after hearing the arguments of Counsel, finds that
Maddison is entitled to relief. Accordingly, the Court finds that Sec.
33.07 is unconstitutionally overbroad because it is a content-based
restriction that criminalizes speech protected under the First Amendment of the
United States Constitution. In order to establish the “harm” contemplated
in Sec. 33.07, it would be necessary to examine the content of the speech
alleged to have caused the harm. Because the statute is content based, the
State has the burden of showing its constitutionality, and the State must show
the statute satisfies strict scrutiny, and this the State has failed to do.’
The Court also finds that `harm’ as
defined by Sec. 33.01(14) Texas Penal Code is so vague and overbroad
as to make it impossible to guess at its meaning. The Court realizes that with
the advent of social media and modern digital communication there is great
opportunity for individuals to perpetuate mischief that can result in falsehoods
and hurt feelings. But that has always been the case. A statute that seeks to
prevent such speech must be narrowly drawn and serve a compelling state
interest. Sec. 33.07 fails on both fronts. . . .
Because the Court has found Section
33.07 of the Penal Code unconstitutionally overbroad and vague, it is not
necessary to reach the Applicant's third point that the statute unduly burdens
interstate commerce.
Ex parte Maddison,
supra.
The Court of Appeals then began its analysis, respectively,
of the two Constitutional arguments Maddison made in his appeal: (i) the
statute was unconstitutionally overbroad; and (ii) it was void for vagueness. Ex parte Maddison, supra. This post
takes up the two issues in this order.
The court began its analysis of Maddisson’s overbreadth
challenge by explaining that
[i]n one issue, the State argues that
trial court erred in granting Maddison's application for writ of habeas corpus
and declaring section 33.07 unconstitutional based on overbreadth and
vagueness. And though the trial court did not reach Maddison's argument under
the Dormant Commerce Clause, the State nevertheless contends that section
33.07 does not `unduly burden interstate commerce by attempting to place
regulations on the entirety of the Internet, thus violating the Dormant
Commerce Clause.’
At the outset of our analysis, we note
that Maddison was only charged under section 33.07(a)(1); thus, he could
only challenge the constitutionality of section 33.07(a)(1), not the
remainder of the statute. Accordingly, the trial court did not have
jurisdiction to declare all of section 33.07 unconstitutional, but
rather only subsection (a)(1). See State v. Stubbs, 502
S.W.3d 218, 223-24 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (citing Limon
v. State, 947 S.W.2d 620, 625 (Tex. App.—Austin 1997, no writ); State
v. Cannady, 913 S.W.2d 741, 745 (Tex. App.—Corpus Christi 1996), aff'd, 11
S.W.3d 205 (Tex. Crim. App. 2000), cert. denied, 560 U.S. 920,
130 S.Ct. 3317, 176 L.Ed.2d 1215 (2010)). We now analyze the State's
overbreadth argument.
Ex parte Maddison,
supra.
The court went on to outline the “applicable law” implicated
by Maddison’s first argument:
`Whether a statute is facially
constitutional is a question of law that we review de novo.’ Id. at 224 (citing Ex Parte
Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013)). When presented with a
challenge to the constitutionality of a statute, we presume that the statute is
valid and that the Legislature has not acted arbitrarily or unreasonably. Ex
Parte Lo, 424 S.W.3d at 14-15; see Ex parte Flores, 483
S.W.3d 632, 638 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (citing Rodriguez
v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002)). Typically, the party
challenging the statute has the burden to establish its
unconstitutionality. Ex parte Lo, 424 S.W.3d at 15.
The First Amendment—which prohibits
laws `abridging the freedom of speech’—limits the government's power to
regulate speech based on its substantive content. Ex parte Flores,
483 S.W.3d at 639; see U.S. CONST. amend. I; Reedv. Town of Gilbert, Ariz., ––– U.S. ––––, 135 S.Ct. 2218, 2226, 192 L.Ed.2d236 (2015). Content-based regulations are those that distinguish favored from
disfavored speech based on the idea or message expressed. Ex parte Lo,
424 S.W.3d at 15; Ex parte Flores, 483 S.W.3d at 639. Content-based
regulations operate to restrict particular viewpoints or public discussion of
an entire topic or subject matter. See Reed v. Town of Gilbert, supra. In these situations, the usual
presumption of constitutionality is reversed; the content-based statute is
presumed invalid, and the State bears the burden to rebut this
presumption. Ex Parte Lo, 424 S.W.3d at 15; Ex parte Flores,
483 S.W.3d at 639.
Ex parte Maddison,
supra.
The opinion goes on to explain that a statute that
suppresses, disadvantages, or imposes
differential burdens upon speech because of its content is subject to the most
exacting or strict scrutiny. Ex parte Lo, 424 S.W.3d at 15 (citing TurnerBroad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d497 (1994)). Such a regulation may be upheld only if it is necessary to serve a
compelling state interest and employs the least speech-restrictive means to
achieve its goal. Id. Content-neutral regulation of the time,
place, and manner of speech, as well as regulation of speech that can be
justified without reference to its content, receives intermediate scrutiny. Ex parte Flores, 483 S.W.3d at 639 (citing Turner
Broad., Sys., 512 U.S. at 642, 114 S.Ct. 2445, and Ward v. RockAgainst Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)).
Such a regulation is permissible if it promotes a significant governmental
interest and does not burden substantially more speech than necessary to
further that interest. Id. (citing McCullen v. Coakley,––– U.S. ––––, 134 S.Ct. 2518, 2534-35, 189 L.Ed.2d 502 (2014), and Ex
parte Thompson, 442 S.W.3d at 344).
Ex parte Maddison,
supra.
The opinion then explains that when
a party challenges a statute as both
overbroad and vague, we first consider the overbreadth challenge. See Ex
parte Flores, 483 S.W.3d at 643. The overbreadth doctrine is strong
medicine that is used sparingly and only as a last resort. State v.
Johnson, 475 S.W.3d 860, 865 (Tex. Crim. App. 2015); see also NewYork State Club Ass'n, Inc. v. City of New York, 487 U.S. 1, 14, 108 S.Ct.2225, 101 L.Ed.2d 1 (1988). To be unconstitutionally overbroad, `the statute
must prohibit a substantial amount of protected expression, and the danger that
the statute will be unconstitutionally applied must be realistic and not based
on `fanciful hypotheticals.’ Johnson, 475 S.W.3d at 865 (quoting UnitedStates v. Stevens, 559 U.S. 460, 485, 130 S.Ct. 1577, 176 L.Ed.2d 435(2010) (Alito, J., dissenting)). Laws that inhibit the exercise of First
Amendment rights will be held facially overbroad only if the impermissible
applications of the law are real and substantial when judged in relation to the
statute's plainly legitimate sweep. See Ex parte Flores,
483 S.W.3d at 643 (citing Broadrick v. Okla., 413 U.S. 601,612-15, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)).
An overbreadth challenge will rarely,
if ever, succeed against a statute `that is not specifically addressed to
speech or to conduct that it necessarily associated with speech (such as
picketing or demonstrating).’ Johnson, 475 S.W.3d at 865 (quoting Virginiav. Hicks, 539 U.S. 113, 124, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003)).
`The burden rests upon the person challenging the statute to establish its unconstitutionality.’ Ex
parte Flores, 483 S.W.3d at 643 (citing Rodriguez, 93
S.W.3d at 69). We must uphold the statute if we can determine a reasonable construction
rendering it constitutional. Id. (citing Duncantell v.
State, 230 S.W.3d 835, 843 (Tex. App.—Houston [14th Dist.] 2007, pet.
ref'd)).
Ex parte Maddison,
supra.
The Court of Appeals then took up process of analyzing
whether § 33.07 violated the First Amendment. Ex parte Maddison, supra. It began by construing the provisions of
the statute:
We consider the plain meaning of the
acts proscribed by the statute to determine what the statute covers. Ex
parte Flores, 483 S.W.3d at 643 (citing United States v.
Williams, 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008)); see Ex
parte Perry, 483 S.W.3d 884, 902 (Tex. Crim. App. 2016). In construing a
statute, we give effect to the plain meaning of its language, unless the
language is ambiguous or the plain meaning leads to absurd results that the
legislature could not have intended. Ex parte Perry, 483 S.W.3d at
902. Moreover, we presume every word in the statute has been used for a purpose
and that each word, clause, and sentence should be given effect, if
possible. Id. at 902-03; see TEX. GOV'T CODE ANN. §311.011(a) (West 2013) (`Words and phrases shall be read in context and
construed according to the rules of grammar and common usage.’). However, `[w]ords
and phrases that have acquired a technical or particular meaning, whether by
legislative definition or otherwise, shall be construed accordingly.’ TEX.
GOV'T CODE ANN. § 311.011(b).
Section 33.07(a)(1) is not
ambiguous. The language of the statute plainly proscribes the conduct of using,
without consent, another person's name or persona to create a web page on a
commercial social networking site or other Internet website with the intent to
harm, defraud, intimidate, or threaten any person. See TEX.
PENAL CODE ANN. § 33.07(a)(1). `The forbidden conduct is taking another's
identity, without consent and with the requisite intent, and using that
identity to make certain electronic communications.’ Ex parte Bradshaw,
501 S.W.3d 665, 673 (Tex. App.—Dallas 2016, pet. ref'd). Considering the plain
text of section 33.07(a)(1), the conduct proscribed is certainly connected
to and will tend to involve speech. See Stubbs, 502
S.W.3d at 226; see also Ex parte Bradshaw, 501 S.W.3d
665, 673 (Tex. App.—Dallas 2016, pet. ref'd). As such, we must determine
whether that conduct is entitled to protection under the First Amendment. See Stubbs,
502 S.W.3d at 226; see also Ex parte Bradshaw, 501
S.W.3d at 673.
Ex parte Maddison,
supra.
The Court of Appeals then went on to analyze the issue as to
whether the speech that is restricted by Texas Acode § 33.07 is protected by
the First Amendment to the United States Constitution. Ex parte Maddison, supra. It began this analysis by explaining that
[i]n the trial court and on appeal,
Maddison contends that the First Amendment protects not only traditional
speech, but also expressive conduct. Maddison asserts that, whether the
creation of a web page is traditional speech or expressive conduct, we must
look at the content of the expression to determine whether a person has
violated section 33.07(a)(1). Maddison posits that, because section
33.07(a)(1) restricts protected speech based on its content, the statute
should be analyzed under a strict-scrutiny standard. Although conceding
that the State has the right to prohibit certain categories of unprotected
speech, such as obscenity, incitement, fraud, and true threats, Maddison argues
that the United States Supreme Court has drawn narrow lines around what
constitutes unprotected speech, and speech that is harassing, harmful, online,
personifying, or a violation of privacy is protected by the First Amendment.
The State counters that section 33.07(a) is not overbroad as a
content-based restriction of speech and that it does not implicate the First
Amendment.
is a nature-of-conduct offense. See Cornwell
v. State, 471 S.W.3d 458, 464 (Tex. Crim. App. 2015) (interpreting the
statute governing impersonation of a public servant). Moreover, a regulation of
conduct only implicates the First Amendment if it qualifies as `expressive
conduct’ akin to speech. See Arnold v. State, 853
S.W.2d 543, 545-46 (Tex. Crim. App. 1993); see Ex parte
Thompson, 442 S.W.3d 325, 334 (Tex. Crim. App. 2014).
On appeal, Maddison relies on Thompson to support his contention that the
usage of another's name or persona to create a webpage, post a message, or send
a message is “inherently expressive” and, thus, entitled to First Amendment
protection. In Thompson, the Court of Criminal Appeals concluded
that the act of creating a photograph or visual recording was inherently
expressive and entitled to First Amendment protection because `the process of
creating the end product cannot reasonably be separated from the end product
for First Amendment purposes.' Thompson, 442 S.W.3d at 337.
Importantly, section 33.07(a)(1) only regulates the conduct of
assuming another's person's identity, without that person's consent, with the
intent to harm, defraud, intimidate, or threaten any person by creating a web
page. “Any subsequent `speech’ related to that conduct is integral to criminal
conduct and may be prevented and punished without violating the First
Amendment.” Ex parte Bradshaw, 501 S.W.3d at 674 (citing Stevens,
559 U.S. at 468, 130 S.Ct. 1577). `Otherwise proscribable conduct does not
become protected by the First Amendment simply because the conduct happens to
involve the written or spoken word.’ Stubbs, 502 S.W.3d at 226 (citing United
States v. Alvarez, 567 U.S. 709, 132 S.Ct. 2537, 2544 (2012) (plurality op.)).
`Almost all conceivable applications
of section 33.07(a) to speech associated with the proscribed conduct
fall within the categories of criminal, fraudulent, and tortious activity that
are unprotected by the First Amendment.’ Ex parte Bradshaw, 501
S.W.3d at 674 (citing Stevens, 559 U.S. at 468-69, 130 S.Ct. 1577)
(noting that obscenity, defamation, fraud, incitement, and speech integral to
criminal conduct is not constitutionally-protected speech); Scott v.
State, 322 S.W.3d 662, 668-69 (Tex. Crim. App. 2010) (stating that
there is no First Amendment protection for speech that invades the substantial
privacy interests of another in an essentially intolerable manner), overruled
in part on other grounds by Wilson v. State, 448 S.W.3d 418, 423 (Tex.
Crim. App. 2014).
Ex parte Maddison,
supra.
For these and other reasons, the Court of Appeals ultimately
found that
because section 33.07(a)(1) promotes
a substantial governmental interest, the State's interest would be achieved
less effectively without the law, and the means chosen are not substantially
broader than necessary to satisfy the State's interest; therefore, section
33.07(a)(1) survives intermediate scrutiny. We further conclude that Maddison
failed to establish that section 33.07(a)(1) is facially
unconstitutional under the First Amendment due to being substantially
overbroad.
Ex parte Maddison,
supra.
The Court of Appeals then took up its review of the trial
court judge’s finding that the
statute is unconstitutionally vague. In
his brief, Maddison contends that section 33.07 is unconstitutionally
vague because it uses an “all-encompassing ‘harm’ standard” that would cause
potential speakers to steer much further from the `unlawful zone’ of conduct
than would a more narrow statute aimed squarely at unprotected speech.
Once again, both the Stubbs and Bradshaw Courts
have addressed this contention. See Stubbs, 502 S.W.3d at 235-37; Ex
parte Bradshaw, 501 S.W.3d at 677-78. More specifically, the Bradshaw Court
stated the following:
A criminal conviction fails to comport
with the Due Process Clause of the Fifth Amendment, as applied to the states by
the Fourteenth Amendment, if the statute of conviction fails to provide a
person of ordinary intelligence fair notice of what the statue prohibits, or it
authorizes or encourages seriously discriminatory enforcement. A statute is
unconstitutionally vague if persons of common intelligence must necessarily
guess at its meaning and differ about its application. All criminal laws must
give fair notice about what activity is made criminal. However, a statute need
not be mathematically precise; it must only provide fair warning in light of
common understanding and practices.’
When a statute implicates First
Amendment rights, the law must be sufficiently definite to avoid chilling
protected expression. Ordinarily, a person who has engaged in some clearly
proscribed conduct cannot complain of the vagueness of the statute as it may be
applied to others, but that requirement has been relaxed in the context of
statutes that proscribe speech protected by the First Amendment to permit an
argument that a statute is overbroad because it is unclear whether it
impermissibly regulates a substantial amount of protected speech.
Ex parte Maddison,
supra (quoting from Ex parte Bradshaw).
The Maddison court
went on to finish quoting the relevant conclusions the Bradshaw court included in its opinion:
The Texas Penal Code defines harm
generally as anything reasonably regarded as loss, disadvantage, or injury,
including harm to another person in whose welfare the person affected is
interested. More specifically, chapter 33 of the penal code contains its own
definition of harm as various types of damage that can occur to computer data
and also any other loss, disadvantage, or injury that might reasonably be
suffered as a result of the actor's conduct. Further, harm is a common
word with a common meaning that comports with the definitions of harm in the
penal code.
We conclude the relevant penal code
definitions of harm, in conjunction with the operative provisions of section
33.07(a), sufficiently provide a person of ordinary intelligence fair notice of
what the statute prohibits and do not authorize or encourage seriously
discriminatory enforcement. Accordingly, section 33.07(a) is not
unconstitutionally vague.
Ex parte Maddison,
supra.
The Court of Appeals then ended the opinion with these
comments:
We agree with the reasoning and
conclusion of the Bradshaw Court. See id. at
677-78. Accordingly, we cannot say that section 33.07(a)(1) of the Texas
Penal Code is unconstitutionally vague. And given that we have concluded
that section 33.07(a)(1) is not unconstitutionally overbroad or
vague, we necessarily disagree with the underpinnings of the trial court's
order in this case. As such, we sustain the State's sole issue on appeal.
IV. CONCLUSION
Having sustained the State's sole issue
on appeal, we reverse the trial court's order granting Maddison's application
for writ of habeas corpus. We remand for further proceedings.
Ex parte Maddison,
supra.
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