Ex parte Hall
| Decision Date | 01 May 2019 |
| Docket Number | NO. 03-18-00731-CR,03-18-00731-CR |
| Parties | Ex parte Stephen Hall |
| Court | Texas Court of Appeals |
NO. D-1-DC-18-900109, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING
Stephen Hall was charged with online harassment for allegedly using the names of others without their consent to post or send messages through social networking sites or through "Austin Eye's Google business page" with the intent to harm, defraud, intimidate, or threaten Austin Eye. See Tex. Penal Code § 33.07(a)(2). After being charged, Hall filed a pretrial application for writ of habeas corpus alleging that subsection 33.07(a) of the Penal Code is facially unconstitutional. See Tex. Code Crim. Proc. art. 11.08. The district court conducted a hearing and issued an order denying Hall's writ application "on the merits." On appeal, Hall contends that the district court erred by denying his writ application because "section 33.07(a) is unconstitutionally overbroad in violation of the First Amendment." We will affirm the district court's order.
STANDARD OF REVIEW AND GOVERNING LAW
As mentioned above, Hall sought to challenge the constitutionality of a statute through a pretrial habeas application. "[P]retrial habeas, followed by an interlocutory appeal, is an 'extraordinary remedy,' and 'appellate courts have been careful to ensure that a pretrial writ is not misused to secure pretrial appellate review of matters that in actual fact should not be put before appellate courts at the pretrial stage.'" Ex parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010) (quoting Ex parte Doster, 303 S.W.3d 720, 724 (Tex. Crim. App. 2010)). "Pretrial habeas can be used to bring a facial challenge to the constitutionality of the statute that defines the offense but may not be used to advance an 'as applied' challenge." Id. Pretrial-habeas challenges to the facial constitutionality of a statute are permitted because an invalid statute would render "the charging instrument void." Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001).
A determination regarding 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). A facial challenge is essentially "a claim that 'the statute, by its terms, always operates unconstitutionally.'" Lebo v. State, 474 S.W.3d 402, 405 (Tex. App.—San Antonio 2015, pet. ref'd) (quoting Scott v. State, 322 S.W.3d 662, 665 n.1 (Tex. Crim. App. 2010), abrogated in part on other grounds by Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014)); Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex. Crim. App. 2006)); see also State ex rel. Lykos v. Fine, 330 S.W.3d 904, 908 (Tex. Crim. App. 2011) (). When assessing a statute's constitutionality, reviewing courts "presume that the statute is valid and that the legislature has not acted unreasonably or arbitrarily" by enacting the statute. Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). Accordingly, "a facial challenge to a statute is extremely difficult to prove as all courts presume that the Legislature enacted a constitutional law and all courts must seek to uphold the facial constitutionality of legislative enactments." Lykos, 330 S.W.3dat 909. "In a facial challenge to a statute's constitutionality, courts consider the statute only as it is written, rather than how it operates in practice." Id. at 908. Moreover, the party presenting the statutory challenge has the burden of establishing that the statute is unconstitutional. Rodriguez, 93 S.W.3d at 69.
Under the First Amendment, the government is prohibited from making any law "abridging the freedom of speech." U.S. Const. amend. I. "As a general matter, the First Amendment 'means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" Wagner v. State, 539 S.W.3d 298, 310 (Tex. Crim. App. 2018) (quoting Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002)). "The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech." Virginia v. Black, 538 U.S. 343, 358 (2003).
"In the First Amendment context, there are two levels of scrutiny: strict scrutiny and intermediate scrutiny." Ex parte Thompson, 442 S.W.3d 325, 344 (Tex. Crim. App. 2014). "Strict scrutiny applies when a statute constitutes a content-based regulation of expression." Id. A "regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed." Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2227 (2015). Id.; see also Ex parte Thompson, 442 S.W.3d at 347 (). "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." Ex parte Lo, 424 S.W.3d at 15 n.12. "[C]ontent-based restrictions on speech have been permitted, as a general matter, only when confined to" a few traditional categories, including expression intended to "to incite imminent lawless action, obscenity, defamation, speech integral to criminal conduct, so-called 'fighting words,' child pornography, fraud, true threats, and speech presenting some grave and imminent threat the government has the power to prevent, although a restriction under the last category is most difficult to sustain." United States v. Alvarez, 567 U.S. 709, 717-18 (2012) (plurality op.) (internal citations removed).
"Under strict scrutiny, a regulation of expression may be upheld only if it is narrowly drawn to serve a compelling government interest," meaning that the "regulation . . . uses the least restrictive means of achieving the government interest." Ex parte Thompson, 442 S.W.3d at 344. "[W]hen the government seeks to restrict and punish speech based on its content, the usual presumption of constitutionality is reversed." Ex parte Lo, 424 S.W.3d at 15. In other words, "[c]ontent-based regulations . . . are presumptively invalid, and the government bears the burden to rebut that presumption." Id.
In contrast, under intermediate scrutiny, the regulation does not need to be the least restrictive means to achieve a governmental interest. Ex parte Thompson, 442 S.W.3d at 345. Instead, the regulation needs to be narrowly tailored, meaning that "the means chosen are not substantially broader than necessary to achieve the government's interest." Id. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989)). Stated differently, "[t]he requirement of narrowtailoring is satisfied if the regulation promotes a substantial governmental interest that would be achieved less effectively absent the regulation." Id. Restrictions on "commercial speech" are reviewed under intermediate scrutiny because commercial speech enjoys "'a limited measure of protection'" compared to "speech at the First Amendment's core." Florida Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995) (quoting Board of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 477 (1989)); see also Harris v. Quinn, 573 U.S. 616, 648 (2014) ().
"Ordinarily, a facial challenge to the constitutionality of a statute can succeed only when it is shown that the statute is unconstitutional in all of its applications." Wagner, 539 S.W.3d at 310. "The First Amendment overbreadth doctrine provides an exception to this rule whereby a litigant may succeed in challenging a law that regulates speech if 'a "substantial number" of its applications are unconstitutional, "judged in relation to the statute's plainly legitimate sweep."'" Id. (quoting Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008)). Stated differently, "[t]he First Amendment overbreadth doctrine holds that a statute is facially invalid if, as written, it sweeps within its coverage a 'substantial' amount of First Amendment-protected expression as compared to any activity it proscribes constitutionally." Ex parte Perry, 471 S.W.3d 63, 88 (Tex. App.—Austin 2015) (quoting Ex parte Lo, 424 S.W.3d at 18), rev'd in part on other grounds, 483 S.W.3d 884 (Tex. Crim. App. 2016). "[T]he overbreadth doctrine allows a statute to be invalidated on its face even if it has legitimate application, and even if the parties before the court have suffered no constitutional violation." Ex parte Ellis, 309 S.W.3d at 91. "The overbreadth doctrine is 'strong medicine' that should be employed 'sparingly' and 'only as a lastresort.'" Id. (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). "[T]he overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Id. (quoting Broadrick, 413 U.S. at 615).
In his writ application, Hall sought to challenge the constitutionality of subsection 33.07(a)(2) of the Penal Code. That provision reads, in relevant part, as follows:
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