Ex parte Bradshaw

• Decision Date: 23 August 2016
• Docket Number: No. 05-16-00570-CR,05-16-00570-CR
• Citation: Ex parte Bradshaw, 501 S.W.3d 665 (Tex. App. 2016)
• Parties: Ex parte Michael Dwain Bradshaw
• Court: Texas Court of Appeals

501 S.W.3d 665

Ex parte Michael Dwain Bradshaw

No. 05-16-00570-CR

Court of Appeals of Texas, Dallas.

Opinion Filed August 23, 2016

Discretionary Review Refused December 7, 2016

Mark W. Bennett, Houston, TX, Toby L. Shook, Dallas, TX, for Appellant.

Susan Hawk, Jaclyn O'Connor Lambert, Dallas, TX, for appellees.

Before Justices Francis, Fillmore, and Schenck

OPINION

Opinion by Justice Fillmore

Michael Dwain Bradshaw is charged with the offense of online impersonation.

See TEX. PENAL CODE ANN. § 33.07(a) (West Supp. 2015).¹ Bradshaw filed a pretrial application for writ of habeas corpus challenging the constitutionality of section 33.07(a).² The trial court denied relief on Bradshaw's application without conducting a hearing. In three issues, Bradshaw contends section 33.07(a) is facially unconstitutional because it (1) is overbroad in violation of the First Amendment, (2) is too vague to satisfy the Fifth and Fourteenth Amendments, and (3) violates the Dormant Commerce Clause. We affirm.

Background

Bradshaw was indicted under section 33.07(a) entitled "Online Impersonation," which provides:

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

(2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.

TEX. PENAL CODE ANN. § 33.07(a). The indictment charged Bradshaw with intentionally or knowingly using Joel Martin's name or persona to post or send one or more messages on or through manhunt.net, an Internet website, without obtaining Martin's consent, and with the intent to harm Martin.

Bradshaw filed a pretrial application for writ of habeas corpus in which he argued he was illegally restrained of his liberty because section 33.07(a) is unconstitutional. Bradshaw specifically asserted section 33.07(a) violates the First Amendment because it is overbroad on its face, is unconstitutionally vague under the Fifth and Fourteenth Amendments, and violates the Dormant Commerce Clause. Without holding a hearing, the trial court denied the application. Bradshaw appeals the trial court's ruling.

Standard of Review

A defendant may file a pretrial application for a writ of habeas corpus to raise a facial challenge to the constitutionality of a statute that defines the offense charged. Ex parte Thompson , 442 S.W.3d 325, 333 (Tex.Crim.App.2014). A facial challenge attacks the statute itself rather than the statute's application to the defendant. Peraza v. State , 467 S.W.3d 508, 514 (Tex.Crim.App.2015). Whether a statute is facially unconstitutional is a question of law subject to de novo review. Ex parte Lo , 424 S.W.3d 10, 14 (Tex.Crim.App.2013).

Ordinarily, to mount a successful facial challenge, the challenger must establish that no set of circumstances exists under which the statute would be valid or that the statute lacks any plainly legitimate sweep. United States v. Stevens , 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) ; Peraza , 467 S.W.3d at 514. We presume the statute is valid and that the legislature did not act unreasonably or arbitrarily in creating it. Lo , 424 S.W.3d at 15.³ The challenger normally bears the burden to establish the statute is unconstitutional. Id. We make every reasonable presumption in favor of the statute's constitutionality, unless the contrary is clearly shown. Peraza , 467 S.W.3d at 514.

Overbreadth

In his first issue, Bradshaw contends section 33.07(a) is facially unconstitutional under the First Amendment because it is overbroad and has the effect of restricting a substantial amount of protected speech based on the content of the speech. The State responds that section 33.07(a) regulates conduct and unprotected speech and therefore does not implicate First Amendment protections. The State further asserts that to the extent there are possible unconstitutional applications of section 33.07(a), any effect on protected speech is marginal when weighed against the plainly legitimate sweep of the statute.

Applicable Law

The First Amendment, made applicable to the states by the Due Process Clause of the Fourteenth Amendment, prohibits laws "abridging the freedom of speech." U.S. CONST. A mend. I ; Reed v. Town of Gilbert, Ariz. , ––– U.S. ––––, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015). When a statute encroaches upon activity protected by the First Amendment, the challenger may bring a "substantial overbreadth" facial challenge. See Stevens , 559 U.S. at 473, 130 S.Ct. 1577. Under such a facial challenge, a statute may be invalidated as overbroad if "a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Id. The State may not ban unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process. Ashcroft v. Free Speech Coal. , 535 U.S. 234, 255, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). Under the overbreadth doctrine, a law may be facially unconstitutional "even if it has some legitimate application and even if the parties before the court were not engaged in activity protected by the First Amendment." State v. Johnson , 475 S.W.3d 860, 864–65 (Tex.Crim.App.2015).

The overbreadth doctrine is strong medicine that is used sparingly and only as a last resort. Id. at 865 ; see also New York 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 Stevens , 559 U.S. at 485, 130 S.Ct. 1577 ). The concern addressed by the overbreadth doctrine "attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct." Id. (quoting Virginia v. Hicks , 539 U.S. 113, 124, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) ). An overbreadth challenge will rarely, if ever, succeed against a statute "that is not specifically addressed to speech or to conduct that is necessarily associated with speech (such as picketing or demonstrating)." Id. (quoting Hicks , 539 U.S. at 124, 123 S.Ct. 2191 ).

The level of scrutiny applied to a statute challenged as overbroad is dependent on whether the statute is "content based." Thompson , 442 S.W.3d at 344. A law is "content based" if it distinguishes between favored and disfavored speech on the basis of the ideas or views expressed; if it is necessary to look at the content of the speech to decide if the speaker violated the law, the regulation is content based. Id. at 345 ; Ex parte Fujisaka , 472 S.W.3d 792, 795 (Tex.App.—Dallas 2015, pet. ref'd), cert. denied , ––– U.S. ––––, 136 S.Ct. 1681, 194 L.Ed.2d 770 (2016). A content-based law is presumptively invalid, and the government bears the burden to rebut the presumption. Lo , 424 S.W.3d at 15. We apply the "most exacting scrutiny to regulations that suppress, disadvantage, or impose different burdens on speech because of its content." Id. To satisfy strict scrutiny, a statute regulating speech must be necessary to serve a compelling state interest and be narrowly drawn. Id. A statute is narrowly drawn if it employs the least restrictive means to achieve its goal and if there is a close nexus between the government's compelling interest and the restriction. See id. The statute does not satisfy strict scrutiny if there is a less restrictive means of achieving the state's compelling interest that would be at least as effective as the statute under review. Id. at 15–16. However, a statute may not be held overbroad merely because it is possible to conceive of some impermissible applications. United States v. Williams , 553 U.S. 285, 303, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008).

If, on the other hand, the challenged law restricts speech protected by the First Amendment but is content neutral, the law is subject to intermediate scrutiny, and it need not be the least restrictive means of advancing the State's interests. Thompson , 442 S.W.3d at 345. It must, however, be "narrowly tailored to serve a significant governmental interest." McCullen v. Coakley , ––– U.S. ––––, 134 S.Ct. 2518, 2534, 189 L.Ed.2d 502 (2014) (quoting Ward v. Rock Against Racism , 491 U.S. 781, 796, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ). To be narrowly tailored, the law must promote a substantial governmental interest that would be achieved less effectively without the law and the means chosen must not be substantially broader than is necessary to satisfy the government's interest. Thompson , 442 S.W.3d at 345 ; see also McCullen , 134 S.Ct. at 2534–35.

Construing Section 33.07(a)

To determine whether a challenged statute "reaches too far," we must first construe the statute to determine what it covers. Ex parte Perry , 483 S.W.3d 884, 902 (Tex.Crim.App.2016) ; see also Williams , 553 U.S. at 293, 128 S.Ct. 1830. 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. Perry , 483 S.W.3d at 902. We presume that every word in the statute has been used for a purpose and that each word, clause, and sentence should be given effect if reasonably possible. Id. at 902–03 ; see also TEX. GOV'T CODE ANN. § 311.011(a) (West 2013). "Words 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) is not ambiguous. The language of the statute plainly...