# Doyal, Craig > Court of Criminal Appeals of Texas · March 8, 2018 URL: https://www.frixlaw.com/law-library/cases/4253574 ## Case - **Court:** Court of Criminal Appeals of Texas - **Decided:** March 8, 2018 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4253574 ## How later opinions describe it (automated extraction) - finding that Bail Reform Act which authorized pretrial detention was not facially unconstitutional under the Eight Amendment ## Opinion text PD-0254-18 PD-0254-18 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 3/7/2018 3:49 PM Accepted 3/8/2018 11:47 AM DEANA WILLIAMSON IN THE COURT OF CRIMINAL APPEALS OF THE CLERK STATE OF TEXAS FILED COURT OF CRIMINAL APPEALS 3/8/2018 NO. PD-_______-18 DEANA WILLIAMSON, CLERK CRAIG DOYAL, Petitioner VS. THE STATE OF TEXAS, Respondent ON DISCRETIONARY REVIEW FROM THE NINTH COURT OF APPEALS DISTRICT OF THE STATE OF TEXAS CAUSE NO . 09-17-00123-CR APPELLEE’S PETITION FOR DISCRETIONARY REVIEW RUSTY HARDIN State Bar No. 08972800 RUSTY HARDIN & ASSOCIATES, LLP 5 Houston Center CATHY COCHRAN 1401 McKinney Street, Suite 2250 State Bar No. 09499700 Houston, Texas 77010 Telephone: (713) 652-9000 ANDY DRUMHELLER Facsimile: (713) 652-9800 State Bar No. 00793642 Email: rhardin@rustyhardin.com Email: ccochran@rustyhardin.com NAOMI HOWARD Email: adrumheller@rustyhardin.com State Bar No. 24092541 Email: nhoward@rustyhardin.com Attorneys for Petitioner, CRAIG DOYAL ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL Petitioner: CRAIG DOYAL Attorneys at Trial and for Appellee/Petitioner: RUSTY HARDIN CATHY COCHRAN ANDY DRUMHELLER NAOMI HOWARD 1401 McKinney Street, Suite 2250 Houston, Texas 77010 Prosecutors Pro Tem for the State at Trial and for Appellant/Respondent: CHRISTOPHER DOWNEY The Downey Law Firm 2814 Hamilton Street Houston, Texas 77004 DAVID CUNNINGHAM 2814 Hamilton Street Houston, Texas 77004 JOSEPH R. LARSEN Gregor * Cassidy, PLLC 700 Louisiana, Suite 3950 Houston, Texas 77002 Trial Court: THE HONORABLE RANDY CLAPP Visiting Judge, sitting by appointment in the 221st Judicial District, Montgomery County Ninth Court of Appeals Panel of Justices: HON. STEVE McKEITHEN, CHIEF JUSTICE (Author of Opinion) HON. HOLLIS HORTON, JUSTICE HON. LEANNE JOHNSON, JUSTICE ii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . viii STATEMENT OF THE CASE AND PROCEDURAL HISTORY . . . . . . . . . . . . . ix I. Did the court of appeals err in concluding that §551.143 did not violate the First Amendment? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A. Reasons for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 C. What the Court of Appeals Held . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 D. How the Court of Appeals Erred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1. The court of appeals erred in finding that discussion of public matters was equivalent to disorderly conduct and unprotected expression under the First Amendment. . . . . . . . . . . . . . . . . . . 4 2. The court of appeals dismissed Supreme Court precedent and followed a Fifth Circuit opinion interpreting a different TOMA statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3. The court of appeals ignored substantial examples of the overbreadth of §551.143. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 iii II. Did the court of appeals err in finding that §551.143 was not void for vagueness? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 A. Reasons for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 B. The Hearing in the Trial Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 C. What the Court of Appeals Held . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 D. How the Court of Appeals Erred. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 PRAYER FOR RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 APPENDIX NO. 1, State v. Doyal, __S.W.3d__, 2018WL761011 (Tex. App.—Beaumont, February 7, 2018) (designated for publication) APPENDIX NO. 2, APPELLEE’S BRIEF, Cause No. 04-17-00123-CR APPENDIX NO. 3, DEFENDANT DOYAL’S MOTION TO DISMISS, Cause No. 16-06- 07315-CR APPENDIX NO. 4, CHAPTER 551 OF TEXAS GOVERNMENT CODE, “TEXAS OPEN MEETINGS ACT” iv INDEX OF AUTHORITIES Cases Asgeirsson v. Abbott, 696 F.3d 454 (5th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,6,7 Broadrick v. Oklahoma, 413 U.S. 601 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,4,5,6 Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,7,8,14 Cohen v. California, 403 U.S. 15 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Ex parte Mitcham, __S.W.3d__, 2018WL847655 (Tex. Crim. App. February 14, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . 8,9,10 Ex parte Perry, 483 S.W.3d 884 (Tex. Crim. App. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,8,12,13 Ex parte Poe, 491 S.W.3d 348 (Tex. App.—Beaumont 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,5,6,15 Faust v. State, 491 S.W.3d 733 (Tex. Crim. App. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Grayned v. Rockford, 408 U.S. 104 (1972). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,14,19 Kolender v. Lawson, 461 U.S. 352 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,17 v Long v. State, 931 S.W.2d 285 (Tex. Crim. App.1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,19 Martinez v. State, 323 S.W.3d 493 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,3,7 Ross v. State, 531 S.W.3d 878 (Tex. App.—San Antonio 2017) (pet. granted, January 28, 2018) . . . . . . . . 5 State v. Doyal, __S.W.3d__, 2018WL761011 (Tex. App.—Beaumont, February 7, 2018) . . . . . . . . . . . . . . . . . . . . passim State v. Johnson, 475 S.W.3d 860 (Tex. Crim. App. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,14 State v. Markovich, 77 S.W.3d 274 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 United States v. Alvarez, 567 U.S. 709 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 United States v. Stevens, 559 U.S. 460 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,9,11 Wagner v. State, __S.W.3d__, 2018WL849164 (Tex. Crim. App. February 14, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,19 Other Authority OP. TEX. ATT’Y GEN., No. GA-0326 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 vi Constitutions and Statutes Referenced U.S. CONST. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim TEX. GOV’T CODE §551.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 TEX. GOV’T CODE §551.143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim TEX. GOV’T CODE §551.144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,3,11,12 TEX. R. APP. P. 66.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,2,13,14 vii STATEMENT REGARDING ORAL ARGUMENT Oral argument is essential to the full development of the First Amendment issues in this case of first impression. Although all fifty states have open meeting laws, no jurisdiction has a criminal conspiracy statute like §551.143 (part of Chapter 551 of the Texas Government Code–the Texas Open Meetings Act),1 and apparently there has never been a successful criminal conviction for a “walking quorum” or “daisy chain” violation of an open meetings law. The constitutionality and interpretation of §551.143 of the Texas Open Meetings Act (TOMA) are issues of enormous practical consequence to members of governmental bodies, large and small, across the state who are subject to criminal prosecution under its provisions. 1 Unless otherwise noted, all references to statutes are to the Texas Government Code. viii STATEMENT OF THE CASE AND PROCEDURAL HISTORY Montgomery County citizens wanted relief from traffic congestion, but after local Tea Party organizations defeated the May 2015 road bond package, Commissioners Court was loathe to even discuss the topic. By that August, representatives of the Texas Patriots PAC realized that the county’s traffic problems had reached a crisis, and they requested a meeting with County Judge Doyal. Facilitated by Marc Davenport, Judge Doyal and Commissioner Charlie Riley met with the PAC, and afterwards Judge Doyal held a press conference announcing that he would designate time on the Commissioners Court agenda for discussion of a proposal for a revised road bond to be included on the November ballot. After discussion and public comment at the August 22nd open meeting, the Commissioners Court voted unanimously to put the revised road bond package on the November ballot. The compromise was a success, and the voters passed the new road bond by 60%, whereas the May proposal had failed by 60%.2 A specially appointed prosecutor later indicted County Judge Craig Doyal, along with Commissioners Charlie Riley and Jim Clark and political consultant Marc Davenport, for the offense of “knowingly conspir[ing] to circumvent Title 5 Subtitle A Chapter 551 of the Texas Government Code (hereinafter referred to as the Texas 2 For a more complete recounting of the Montgomery County road bond saga, See APPENDIX 3, Defendant Doyal’s Motion to Dismiss the Indictment, pp.3-6. ix Open Meetings Act), by meeting in a number less than a quorum for the purpose of secret deliberations in violation of the Texas Open Meetings Act, to-wit: by engaging in a verbal exchange concerning an issue within the jurisdiction of the Montgomery County Commissioners Court, namely, the contents of the potential structure of a November 2015 Montgomery County Road Bond” (C.R. 6).3 Judge Doyal filed a pretrial motion to dismiss the indictment, arguing that §551.143: (1) placed unconstitutional burdens on Free Speech and failed to withstand strict scrutiny; (2) was unconstitutionally overbroad; and (3) vague and ambiguous. (C.R. 45). The trial court held a four-day hearing to determine whether §551.143 of TOMA was facially unconstitutional. He heard from witnesses for both the defense and the State and, after considering the arguments of counsel and the testimony of eight witnesses, including experts, the trial court signed an order granting the motion to dismiss (C.R. 79). The Ninth Court of Appeals issued its opinion, reversed the order of the trial court dismissing the indictments, and remanded the case for further proceedings in State v. Doyal, __S.W.3d__, 2018WL761011 (Tex. App.—Beaumont, February 7, 2018). See APPENDIX 1. 3 The Petitioner will cite to the clerk’s record as C.R. The reporter’s record will be cited as 1 R.R., et seq. x I. Did the court of appeals err in concluding that §551.143 did not violate the First Amendment? A. Reasons for Review First, §551.143 of TOMA raises an important question of state and federal law that this Court has never addressed. See TEX. R. APP. P. 66.3(b). Until now, Texas public officials could only guess at what speech might be prohibited or wonder whether this law, by burdening political speech, violates the First Amendment. Second, the court of appeals’ finding that §551.143 of TOMA is a legitimate restriction on First Amendment rights is in conflict with this Court’s decisions in Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013), State v. Johnson, 475 S.W.3d 860 (Tex. Crim. App. 2015), Ex parte Perry, 483 S.W.3d 884 (Tex. Crim. App. 2016), and most recently, Wagner v. State, __S.W.3d__, 2018WL849164 (Tex. Crim. App. February 14, 2018). It also conflicts with the United States Supreme Court’s decisions in Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010), and Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015). The conflict is particularly problematic because there is so little case law discussing criminal liability under the Texas Open Meetings Act, yet §551.143 affects thousands of public officials on a daily basis. See TEX. R. APP. P. 66.3(c). 1 Third, the lower court’s holding that §551.143 of TOMA does not unconstitutionally restrict speech has so far departed from the proper course of judicial proceedings as to call for an exercise of this Court’s supervisory power. See TEX. R. APP. P. 66.3(f). B. Overview Every aspect of this case involves speech. Judge Doyal was charged because of who he is alleged to have talked to and what he is alleged to have talked about. The allegations in this offense cannot be proven without looking into the content of Judge Doyal’s speech. Chapter 551 of the Government Code (Texas Open Meetings Act or TOMA) has the laudable goal of promoting transparency in government meetings. Section 551.144 prohibits closed meetings and imposes penalties for discussions by a quorum of a governmental body about public business without following TOMA requirements. But §551.143 floods the waterfront by prohibiting members of governing bodies from meeting in numbers of less than a quorum for the purpose of secret deliberations “on matters within the jurisdiction of the governing body or public business.” Section 551. 143’s driftnet approach tangles up too much protected speech because it is not narrowly tailored like §551.144 and does not pass strict scrutiny. 2 C. What the Court of Appeals Held The Ninth Court of Appeals characterized §551.143 as a content-neutral law restricting conduct and applied mere “rational basis” scrutiny. Doyal, 2018WL761011,*2. The court rejected Reed v. Town of Gilbert, Ariz., as controlling authority and instead relied on Broadrick v. Oklahoma, 413 U.S. 601 (1973), to conclude that Section 551.143 addressed only conduct and did not deserve any First Amendment protection as speech. The court equated Judge Doyal’s claim with that of one of its earlier cases, Ex parte Poe, 491 S.W.3d 348 (Tex. App.—Beaumont 2016). In Poe, the appellant challenged the constitutionality of a statute prohibiting display of a firearm in public, but the court in Poe (and apparently in the present case) found that the “the statute punishes conduct . . . rather than protected expression, and that the statute bears a rational relationship to the State’s legitimate interest in protecting its citizens from harm.” Doyal, 2018WL761011,*2. The court of appeals also held that the Fifth Circuit’s opinion in Asgeirsson v. Abbott, 696 F.3d 454 (5th Cir. 2012), a civil case looking at the constitutionality of a different criminal statute in TOMA, §551.144, was still valid law after Reed and provided the proper First Amendment analysis of §551.143. Doyal, 2018WL761011,*3-4. Finally, the court held that §551.143’s overbreadth was not real and substantial when compared to its plainly legitimate sweep and that Judge Doyal 3 did not satisfy his burden to show that the provision was unconstitutionally overbroad. Doyal, 2018WL761011,*5. D. How the Court of Appeals Erred The court of appeals erred because it failed to follow the Supreme Court’s First Amendment jurisprudence and this Court’s analysis of First Amendment cases on an issue of statewide importance to members of governing bodies of every size, from rural water boards to metropolitan city councils. 1. The court of appeals erred in finding that discussion of public matters was equivalent to disorderly conduct and unprotected expression under the First Amendment. The court of appeals, without suggestion from any party, classified §551.143 as a restriction on conduct rather than speech: We conclude that, unlike the circumstances in Reed, which involved the particular type of speech or message on signs, section 551.143 of TOMA is directed at conduct, i.e., the act of conspiring to circumvent TOMA by meeting in less than a quorum for the purpose of secret deliberations in violation of TOMA. It is not the content of the deliberations that is targeted by section 551.143; rather, section 551.143 targets the act of knowingly conspiring to engage in deliberations that circumvent the requirements of TOMA. Doyal, 2018WL761011,*4. The court cited Broadrick v. Oklahoma as authority that conduct receives no First Amendment protection: “[I]f the statute punishes conduct and not speech, we apply a rational basis level of review to determine if the statute has a rational relationship 4 to a legitimate state purpose.” Doyal, 2018WL761011,*2. Broadrick involved the Hatch Act and partisan political conduct of soliciting funds by public employees. But this is not a case about fundraising “conduct.” It is a case in which the law clearly restricts the content of what members of a governmental body say to one another. As the Supreme Court explained in Broadrick, a facial challenge is particularly appropriate where a statute regulates “only spoken words,” implicates the right of association, or acts as a prior restraint as §551.143 does. See 413 U.S. at 612-13. The lower court pointed to its own “instructive” decision in Ex parte Poe for support of its holding that Doyal’s conduct is subject to “rational basis” analysis rather than strict scrutiny. In Poe, the court held that a statute prohibiting the display of a firearm in public was conduct, not speech, and the proscription on displaying a firearm was rationally related to a legitimate government interest in public safety. But displaying a firearm in public is simply not analogous to discussing public business in meetings of less than a quorum. The latter involves pure speech, the former involves pure conduct.4 4 Although this Court refused Poe’s PDR, it recently granted the State’s PDR in Ross v. State, 531 S.W.3d 878 (Tex. App.—San Antonio 2017) (pet. granted, January 28, 2018), which addressed the split in Texas intermediate courts concerning whether the “displaying a firearm” statute is unconstitutionally overbroad and vague. The Court should grant review in this case as well because the distinction between “conduct” and “speech” in the context of the First Amendment is vitally important to members of governmental bodies across the state. 5 The Beaumont court is simply mistaken that §551.143 targets “not the content of the deliberations [but] the act of knowingly conspiring to engage in deliberations.” Speech is the heart of “deliberations,” and punishing an agreement to deliberate does not magically convert speech into conduct. See Cohen v. California, 403 U.S. 15, 18 (1971) (“The only ‘conduct’ which the State sought to punish is the fact of communication.”). 2. The court of appeals dismissed Supreme Court precedent and followed a Fifth Circuit opinion interpreting a different TOMA statute. After relying on Broadrick and its own Poe case to decide that §551.143 was not speech but conduct, the court then adopted the “content-neutral” analysis used in Asgeirsson v. Abbott, to hold that §551.143 was not unconstitutionally overbroad or vague. Asgeirsson is not controlling authority, has been abrogated by multiple Supreme Court decisions, does not use proper intermediate-scrutiny analysis, and analyzes a different criminal statute under TOMA. Reliance on Asgeirsson is misplaced. The Asgeirsson decision was based on this reasoning: A regulation is not content-based, however, merely because the applicability of the regulation depends on the content of the speech. A statute that appears content-based on its face may still be deemed content-neutral if it is justified without regard to the content of its speech. 696 F.3d at 460. 6 The Supreme Court’s Reed decision was based on this reasoning: [T]he crucial first step in the content-neutrality analysis [is] determining whether the law is content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of “animus toward the ideas contained” in the regulated speech.135 S.Ct. at 2228; see also United States v. Stevens, 559 U.S. 460 (2010); Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010). The court of appeals should have applied Reed’s overbreadth analysis; instead it rejected that Supreme Court case merely because it did not discuss Asgeirsson. Doyal, 2018WL761011,*4. Of course not, the Supreme Court had different fish to fry. The Beaumont court, nonetheless, held that §551.143 was content-neutral since “[t]he Asgeirsson court held that a regulation is not content-based merely because the applicability of the regulation depends on the content of the speech.” Doyal, 2018WL761011,*3. That is explicitly contradicted by Reed: [I]t is well established that “[t]he First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.” Thus, a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter. For example, a law banning the use of sound trucks for political speech—and only political speech—would be a content-based regulation, even if it imposed no limits on the political viewpoints that could be expressed. 135 S. Ct. at 2230 (internal citations omitted). 7 Recent Supreme Court decisions uphold restrictions on speech only in very limited circumstances because content-based restrictions are reviewed under strict scrutiny. This Court has also found statutes overly broad when they restrict whole classes of speakers,5 the statute criminalized activity that was adequately restricted by other penal statutes,6 or the statute swept up substantially more protected than unprotected activity.7 Section 551.143 restricts the speech of a whole class of speakers, “members of a governmental body,” and an entire subject matter, “an issue within the jurisdiction of the governmental body or any public business.”8 That means that the statute is a content-based restriction of expression. It is subject to strict scrutiny. The court of appeals reached the wrong result because it failed to apply the correct “strict scrutiny” standard. It held that Judge Doyal had failed to “prove that the statute was unconstitutionally vague and overbroad,” Doyal, 2018WL761011,*5, but, under strict scrutiny, it is the State’s duty to shoulder that burden of proof. 5 Martinez v. State, 323 S.W.3d 493, 505 (Tex. Crim. App. 2010). 6 Ex parte Perry, 483 S.W.3d 884, 913 (Tex. Crim. App. 2016). 7 Ex parte Mitcham, __S.W.3d__, 2018WL847655 (Tex. Crim. App. February 14, 2018) (concurring op.). 8 The Supreme Court warned against restricting the speech of an entire group of speakers in Citizens United v. Federal Election Comm'n, and this Court has also recognized that limiting the speech or expression of an entire group did not render a statute content-neutral. Martinez, 323 S.W.3d at 505 (“That all gang hand signs, not just those used by the VC street gang, were prohibited does not render that prohibition content-neutral.”). 8 3. The court of appeals ignored substantial examples of the overbreadth of §551.143. The court of appeals would allow restriction of speech based on the salutary effects of TOMA and to encourage transparency in public meetings. Doyal, 2018WL761011,*5. United States v. Stevens warned against weighing such public interests against free speech: The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. 559 U.S. 460, 470 (2010) (internal citations omitted). The Beaumont court’s categorical balancing of the value of transparency against Free Speech whenever members of governmental bodies speak in numbers less than a quorum about public issues is likewise “startling and dangerous.” The court of appeals stated that “[b]efore a statute will be invalidated on its face as overbroad, the overbreadth must be real and substantial when ‘judged in relation to the statute’s plainly legitimate sweep.’” Doyal, 2018WL761011,*2. But Judge Newell recently reaffirmed the proper test for constitutional overbreadth in Ex parte Mitcham: 9 Overbreadth analysis already allows that a statute that is capable of being applied constitutionally may nevertheless be unconstitutional if it could also be used to criminalize protected speech....Examples of a statute’s plainly legitimate sweep do not tell us how far beyond that legitimate sweep the statute reaches. 2018WL847655,*1 (Newell, J., concurring). When it comes to protected speech, the legitimate sweep must be no broader than the precise grab of the compelling need that gives rise to the statute. “The First Amendment requires that the Government's chosen restriction on the speech at issue be “actually necessary” to achieve its interest. There must be a direct causal link between the restriction imposed and the injury to be prevented.” United States v. Alvarez, 567 U.S. 709, 725 (2012) (internal citations omitted). And this Court has explained: In order to demonstrate that a challenged restriction is narrowly tailored, the government must demonstrate that the restriction “serve[s] a substantial state interest in ‘a direct and effective way.’” Faust v. State, 491 S.W.3d 733, 748 (Tex. Crim. App. 2015). Section 551.143 has not been shown to directly and effectively increase governmental transparency or prevent closed meetings. There have been no reported previous criminal prosecutions in Texas in the more than forty years of §551.143’s existence. If violations of TOMA were so frequent and egregious as to require stiff criminal sanctions, we should have heard of it before. And if this statute served such a compelling governmental need, it would surely apply to the Texas Legislature and the U. S. Senate, but it does not. 10 The witnesses testifying at the pretrial hearing gave numerous examples of their own or other officials’ innocent discussions with other officials and citizens that would be covered by §551.143's broad language. Some of those examples are cited in Judge Doyal’s original brief, APPENDIX 3, pp.34-36, and many more in Commissioner Riley’s brief, APPELLEE RILEY’S BRIEF TO NINTH COURT OF APPEALS, pp.7-22. These members of local governmental bodies are at the mercy of rogue or special prosecutors because §551.143 is so broad. As the Supreme Court warned, “[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” Stevens, 559 U.S. at 480 (2010). And TOMA already has a criminal liability statute—§551.144—which serves the purpose of transparency and deterring closed meetings. Section 551.143 sweeps up far more protected, innocent speech than actual criminal conduct. As Presiding Judge Keller explained, “With legitimate applications flowing solely, or almost entirely, from conduct proscribed by other statutes, it could be said that the challenged statute has no life of its own.” Ex parte Perry, 483 S.W.3d at 913. Section 551.143 has no real life of its own. TOMA has ample remedies for violations: any action taken 11 during an improper meeting is voidable;9 an aggrieved person may obtain an injunction in a declaratory judgment action;10 and criminal sanctions may be sought for a “closed meeting” under §551.144. The alarm sounded by media proponents in this case is that the public would be shut out of important decision-making by its government. But §551.144 safeguards TOMA’s goal of open meetings and §551.143’s overbreadth cannot be justified. The public-spirited citizens who serve their communities in governmental bodies (many of them without pay) should be free to express themselves informally to other members one-on-one or in small groups without fear that they will be swept up in the wide net of §551.143. Because this is an issue of statewide importance to officeholders in governmental bodies, concrete guidance from this Court is imperative. II. Did the court of appeals err in finding that §551.143 was not void for vagueness? A. Reasons for Review A vague criminal statute that encroaches on free speech violates due process because it fails to give fair warning of what is prohibited, encourages arbitrary and 9 §551.141. 10 §551.142. 12 discriminatory enforcement, and has a chilling effect on free expression. Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). All vaguely worded laws create a trap for the unwary, but §551.143 creates uniquely steep stakes because the mere indictment of a public official has political, as well as personal, consequences that range from loss of public trust to loss of public office. As a constitutional matter, public officials must be put clearly on notice of precisely what speech they are statutorily prohibited from engaging in because even the perception of criminal conduct damages both the body politic and the individual person. Ex parte Perry, 483 S.W.3d at 898. First, because this Court has never addressed the meaning of the statutory language in §551.143, it should grant Judge Doyal’s petition and conduct a proper analysis of this criminal law which places so many Texas public officials in potential peril of prosecution. See TEX. R. APP. P. 66.3 (b). Second, the court of appeals’ conclusion that §551.143 gives adequate notice to the average person is based on reinterpreting the statute, which is in conflict with this Court’s statutory construction principles in Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996), and State v. Johnson, 475 S.W.3d 860 (Tex. Crim. App. 2015), as well as the Supreme Court’s void-for-vagueness body of law in Grayned v. Rockford, 408 U.S. 104 (1972), Kolender v. Lawson, 461 U.S. 352 (1983), and Citizens United v. 13 Fed. Election Comm'n, 558 U.S. 310 (2010). This Court should review the Beaumont court’s opinion to resolve that conflict. See TEX. R. APP. P. 66.3(c). Third, the intermediate court’s opinion, rather than clarifying the language of §551.143’s criminal liability (a statute for which there is little judicial guidance), actually muddies the waters by inserting language into the statute and ignoring contradictory statutory language. That court’s statutory analysis calls for this Court’s review. See TEX. R. APP. P. 66.3(f). B. The Hearing in the Trial Court The experienced trial judge heard numerous witnesses before deciding that §551.143 was unconstitutionally vague. Not only did he hear testimony from experts on the Open Meetings Act and the First Amendment, but he also heard testimony from various Texas public officials. Those officials admitted they struggled to understand the restrictions imposed by §551.143, and they were afraid to speak to fellow members about public business and sometimes even feared being seen together because of the possibility of being accused of trying to circumvent TOMA. (2 R.R. 222, 227,263-266, 270; 3 R.R. 111, 114, 116-117; 5 R.R. 18, 20, 32, 37, 55). These public officials shudder in their boots because they can so easily be indicted and beggared by defending themselves in court, regardless of their innocent intent. This concern chills their free speech and deters them from doing their job 14 effectively and efficiently. Unlike Judge Doyal and his fellow public officials who must work with their colleagues in resolving governmental issues as they crop up, Monday morning hindsight gives “prosecutor[s] the ability to pick and choose” (3 R.R. 51), and they “have the power to go out and pick those whose communications they don’t like” under §551.143 (3 R.R. 61). It was in the context of this evidence from those who must work with TOMA on a daily basis that the trial judge held that §551.143 is unconstitutionally vague. C. What the Court of Appeals Held The court of appeals held that §551.143 could be understood from the plain words of the statute. The Beaumont court analogized Judge Doyal’s arguments regarding the ambiguity in the meaning of “conspire,” “circumvent,” “secret,” and “deliberations” in the context of §551.143 to the ambiguity complained of in Ex parte Poe and the alleged ambiguity surrounding “alarm” in that case. The court quickly dispensed with “conspire,” “circumvent,” and “secret,” stating that these words all had plain meanings, so there was no ambiguity. Doyal, 2018WL761011,*4. The appeals court then relied on an Attorney General opinion to supply the interpretation of “deliberations.” The court concluded that meeting in numbers less than a quorum was a “method of forming a quorum” and that this was discerned from the plain meaning of the words. Doyal, 2018WL761011,*5. 15 D. How the Court of Appeals Erred Section 551.143 is so broadly worded that all members of a governmental body who find themselves in the company of any other members of that same governmental body should be on guard as to what they speak about (or even to speak at all), lest someone construe that “meeting” as a conspiracy. This is the counsel that experts give their governmental entity clients: “The very act of trying to keep it legal could be what helps prove, under [§551.143] a conspiracy.” (3 R.R. 47). “You can do an awful lot with [§551.143] in hindsight to make things look like a violation, totally innocent communications.” (3 R.R. 49). Because members of governmental bodies can never know exactly what speech is prohibited and in what numbers it is safe to talk, these members often refrain from speaking altogether. The Beaumont court’s artificial construction and insertion of language that is not actually in the statute conflicts with well-established Supreme Court precedent: “[T]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender, 461 U.S. at 357. Yet multiple witnesses testified that ordinary people serving their communities are confused by §551.143. Mayor Charles Jessup of Meadows Place said that 16 §551.143 is a “very convoluted and confusing statute. . . I really don’t understand it. . . . We try to avoid conversations, and the discussion of a walking quorum has come up. We’re not sure exactly how that works, but it scares us all to death.” (2 R.R. 222). Eric Scott, mayor of Brookshire, testified that §551.143 “makes me believe that they can go to jail very easily, and no one wants to go to jail.” (2 R.R. 266). It “chills” his ability to express himself and solicit others’ opinions. (2 R.R. 270). Mayor Jim Kuykendall of Oak Ridge North explained that Section 551.143 “basically neuters everybody.” (3 R.R. 111). The members don’t feel that they can talk to each other or members of the public. (3 R.R. 114). After learning about this case, Mayor Kuykendall is afraid he’s broken the law. He fears just being indicted would be devastating financially. (3 R.R. 117). Section 551.143 is vague on its face by making it a crime for a member of a governmental body to “conspire” to meet in numbers of less than a quorum “to circumvent” TOMA for the purpose of “secret deliberations” about “public business” or “an issue within the jurisdiction of the government body.” The court of appeals erred when it held that “conspire,” “circumvent,” and “secret” all had plain meanings that required no special judicial interpretation and that “public business” deserved no interpretation at all. The court of appeals treated those words as if there could be no 17 confusion at all. Witnesses at the hearing said otherwise. They are the ones who know the problems of the statute, and they are the ones who need answers. But perhaps most troubling was the court’s blind adoption of the Attorney General’s opinion. The Attorney General’s resolution of the conflict in §551.143, which prohibits public officials in less than a quorum from having “deliberations,” and §551.001, which defines “deliberations” as a verbal exchange between a quorum, is as follows: “‘meeting in numbers less than a quorum’ describes a method of forming a quorum, and a quorum formed this way may hold deliberations like any other quorum.” OP. TEX. ATT’Y GEN., GA-0326, 4 (2005). How can less than a quorum form a quorum? And if it takes a quorum to deliberate, how can less than a quorum deliberate in violation of TOMA? The Beaumont court merely opined that the Attorney General’s construction of the statute was discernible from a plain reading of the words. Doyal, 2018WL761011,*5. When a statute burdens First Amendment rights, the vagueness doctrine demands greater specificity than in other contexts to preserve the right of free expression because “[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.” Grayned, 408 U.S. at 109. In other words, it “chills” free speech. 18 The lower court’s analysis also conflicts with this Court’s void-for-vagueness analysis in Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996) and Wagner v. State, __S.W.3d__, 2018WL849164 (Tex. Crim. App. Feb. 14, 2018). Both decisions recognize that criminal statutes require greater specificity and “narrow tailoring” in the First Amendment context. And Judge Keasler has specifically cautioned against statutory interpretation such as the Beaumont court engaged in: “I believe a statute is only ‘readily subject to a narrowing construction’ if the language already in the statute can be construed in a narrow manner. Adding language to a statute is legislating from the bench.” State v. Markovich, 77 S.W.3d 274, 285 (Tex. Crim. App. 2002) (Keasler, J., dissenting). Because public officials around the state have a compelling interest in clearly- worded penal statutes that govern the manner in which they speak to one another and conduct the business of governing, guidance from this Court is necessary. PRAYER FOR RELIEF For all of the reasons set out above, Judge Doyal asks this Court to grant his petition for discretionary review, reverse the judgment of the Ninth Court of Appeals, and reinstate the judgment of the trial court. 19 Respectfully submitted: RUSTY HARDIN & ASSOCIATES, LLP By: /s/ Rusty Hardin RUSTY HARDIN State Bar No. 08972800 CATHY COCHRAN State Bar No. 09499700 ANDY DRUMHELLER State Bar No. 00793642 NAOMI HOWARD State Bar No. 24092541 5 Houston Center 1401 McKinney Street, Suite 2250 Houston, Texas 77010 Telephone (713) 652-9000 Facsimile (713) 652-9800 Email: rhardin@rustyhardin.com Email: ccochran@rustyhardin.com Email: adrumheller@rustyhardin.com Email: nhoward@rustyhardin.com Attorneys for Petitioner, CRAIG DOYAL 20 CERTIFICATE OF COMPLIANCE Now comes Petitioner, Craig Doyal, by and through undersigned counsel, and certifies that per TEX. R. APP. P. 9.4(i)(2)(D), the Petitioner’s word count , as verified by the computer program, WordPerfect, is 4,409 (of allowed 4,500) words. /s/ Naomi Howard NAOMI HOWARD 21 CERTIFICATE OF SERVICE I hereby certify that, pursuant to TEX. R. APP. P. 9.5(b)(1) and 68.11, an electronic copy of the above and foregoing Petition for Discretionary Review has been electronically served on the prosecutors pro tem for the State and the State Prosecuting Attorney via the electronic filing manager on March 7, 2018. CHRIS DOWNEY The Downey Law Firm 2814 Hamilton Street Houston, Texas 77004 Email: chris@downeylawfirm.com DAVID CUNNINGHAM 2814 Hamilton Street Houston, Texas 77004 Email: cunningham709@yahoo.com JOSEPH R. LARSEN Gregor * Cassidy, PLLC 700 Louisiana, Suite 3950 Houston, Texas 77002 Email: jlarsen@grfirm.com STACEY M. SOULE State Prosecuting Attorney of Texas P.O. Box 13046 Austin, Texas 78711-3046 Email: information@spa.texas.gov /s/ Naomi Howard NAOMI HOWARD 22 APPENDIX NO.1 State v. Doyal, __S.W.3d__, 2018WL761011 (Tex. App.—Beaumont, February 7, 2018) (designated for publication) State v. Doyal, --- S.W.3d ---- (2018) 2018 WL 761011 Only the Westlaw citation is currently available. NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. Court of Appeals of Texas, Beaumont. The STATE of Texas, Appellant v. Craig DOYAL, Appellee NO. 09-17-00123-CR | Submitted on January 24, 2018 | Opinion Delivered February 7, 2018 On Appeal from the 221st District Court, Montgomery County, Texas, Trial Cause No. 16-06-07315-CR Attorneys and Law Firms Christopher J. Downey, Houston, Joseph Robert Larsen, Dallas, David Cunningham, for Appellant. Andrew Davis, as Amicus Curiae. Naomi Howard, Houston, Russell Hardin, Anthony Douglas Drumheller, Cathy Cochran, for Appellee. Before McKeithen, C.J., Horton and Johnson, JJ. Opinion OPINION STEVE McKEITHEN, Chief Justice *1 The State of Texas appeals the trial court's dismissal of an indictment, which alleged that appellee Craig Doyal, as a member of the Montgomery County Commissioners Court, knowingly conspired to circumvent the Texas Open Meetings Act (“TOMA”). We reverse the trial court's order dismissing the indictment and remand the cause to the trial court for further proceedings consistent with this opinion. Doyal, a member of the Montgomery County Commissioners Court, was indicted for knowingly conspiring to circumvent the provisions of TOMA by meeting in a number less than a quorum for the purpose of secret deliberations “by engaging in a verbal exchange concerning an issue within the jurisdiction of the Montgomery County Commissioners Court, namely, the contents of the potential structure of a November 2015 Montgomery County Road Bond[.]” See Tex. Gov't Code Ann. § 551.143 (West 2017). Doyal filed a motion to dismiss the indictment, asserting that section 551.143 is facially unconstitutional because it violates the free speech provisions of the First Amendment and is vague and overbroad. © 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 State v. Doyal, --- S.W.3d ---- (2018) Doyal asserted that he, a county commissioner, and a political consultant met with representatives of a local political action committee (“PAC”) to discuss placing a road bond referendum on the November 2015 ballot, and as a result of the meeting, a memorandum of understanding was produced, in which the Texas Patriots PAC promised its political support for putting a road bond proposal on the commissioners' special meeting agenda. According to Doyal, he posted the agenda for a special meeting of the Commissioners Court, and citizens praised the commissioners' work at the special meeting and thanked them for putting a road bond on the ballot. Doyal asserted that the county attorney wrote him a letter stating that the commissioners had complied with the requirements of TOMA, and voters passed the bond in the November election. Doyal alleged that the discussions between himself, the other commissioner, the consultant, and the members of the PAC were not a meeting under TOMA and were not intended to be an agreement to conspire to avoid TOMA. In his motion to dismiss, Doyal argued that section 551.143 of the Texas Government Code burdens free speech and is subject to strict construction. According to Doyal, the statute facially “does not make sense[ ]” because “[m]eeting in numbers of less than a quorum does not violate a statute that requires a quorum to meet in open session.” Doyal contended that because TOMA applies only to specific speech by public officials, it is a content-based penal regimen subject to review under strict scrutiny. According to Doyal's motion to dismiss, section 551.143 is constitutionally overbroad because it prohibits a substantial amount of protected speech when judged in relation to the statute's plainly legitimate sweep. Doyal further asserted that section 551.143 is vague and confusing because the terms “conspire” and “secret” are not defined, and the statute fails to explain what kind of “deliberations” are covered. *2 The State's response in the trial court asserted that section 551.143 is “both constitutional and enforceable.” According to the State, section 551.143 is content neutral because “it does not restrict speech based on specific content, but simply requires that the disclosure of the speech take place in an open forum.” The State asserted that the purpose of section 551.143 is to control the effects of closed meetings, including decreased transparency, encouragement of fraud or corruption, and increased mistrust in governmental entities. In addition, although the State argued that intermediate scrutiny is the proper standard for reviewing section 551.143, the State contended that even if the strict scrutiny standard applied, section 551.143 meets that test because “it is narrowly tailored and serves a compelling state interest.” The trial court held a hearing, but heard no testimony regarding the underlying facts. Rather, Doyal's witnesses offered opinion testimony regarding their interpretations of section 551.143, the challenges it poses, and its constitutionality. The trial judge signed an order granting Doyal's motion to dismiss the indictment. No party requested the trial court to make findings of fact and conclusions of law, and none were filed. The State then filed this appeal, in which it raises two issues for our consideration: (1) the trial court erred by dismissing the indictment on the ground that section 551.143 is facially unconstitutionally vague and ambiguous, and (2) the trial court erred by dismissing the indictment on the ground that section 551.143 facially violates the First Amendment and is overbroad. “Whether a statute is facially constitutional is a question of law that we review de novo.” Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). If we determine that there is a reasonable construction which will render the statute constitutional, we must uphold the statute. Tarlton v. State, 93 S.W.3d 168, 175 (Tex. App. Houston [14th Dist.] 2002, pet. ref'd). We presume that a statute is valid and that the Legislature did not act unreasonably or arbitrarily. Ex parte Lo, 424 S.W.3d at 14-15. “The burden normally rests upon the person challenging the statute to establish its unconstitutionality.” Id. 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.” State v. Stubbs, 502 S.W.3d 218, 224 (Tex. App. Houston [14th Dist.] 2016, pet. ref'd); see U.S. Const. amend. I. “Content-based regulations are those that distinguish favored from disfavored speech based on the idea or message expressed.” Stubbs, 502 S.W.3d at 224. “[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. “Content-based regulations (those laws that distinguish favored from disfavored speech based on the ideas expressed) © 2018 Thomson Reuters. No claim to original U.S. Government Works. 2 State v. Doyal, --- S.W.3d ---- (2018) are presumptively invalid, and the government bears the burden to rebut that presumption.” Id. Accordingly, we apply strict scrutiny to content-based regulations. Id. On the other hand, if the statute punishes conduct and not speech, we apply a rational basis level of review to determine if the statute has a rational relationship to a legitimate state purpose. See Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Before a statute will be invalidated on its face as overbroad, the overbreadth must be real and substantial when “judged in relation to the statute's plainly legitimate sweep.” Id. A statute should not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional application. See In re Shaw, 204 S.W.3d 9, 15 (Tex. App. Texarkana 2006, pet. ref'd). With respect to issues of vagueness, statutes are not necessarily unconstitutionally vague merely because the words or terms employed in the statute are not specifically defined. See Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim. App. 1988). When a statute does not define the words used therein, we give the words their plain meaning. See Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim. App. 1999); see also 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.”). Under the void-for-vagueness doctrine, a statute will be invalidated if it fails to define the offense in such a manner as to give a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited. See State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006); see also Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). *3 “TOMA requires that meetings of governmental bodies be open to the public.” Asgeirsson v. Abbott, 696 F.3d 454, 458 (5th Cir. 2012). Section 551.143(a) of TOMA, which makes a violation of TOMA a criminal offense, provides as follows: (a) A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter. Tex. Gov't Code Ann. § 551.143(a). Chapter 551 defines the term “deliberation” as “a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business.” Id. § 551.001(2) (West Supp. 2017). In addition, chapter 551 defines “governmental body” to include a county commissioners court. Id. § 551.001(3) (B). Furthermore, chapter 551 defines a “meeting” as follows: (A) a deliberation between a quorum of a governmental body, or between a quorum of a governmental body and another person, during which public business or public policy over which the governmental body has supervision or control is discussed or considered or during which the governmental body takes formal action; or (B) except as otherwise provided by this subdivision, a gathering: (i) that is conducted by the governmental body or for which the governmental body is responsible; (ii) at which a quorum of members of the governmental body is present; (iii) that has been called by the governmental body; and (iv) at which the members receive information from, give information to, ask questions of, or receive questions from any third person, including an employee of the governmental body, about the public business or public policy over which the governmental body has supervision or control. ... The term does not include the gathering of a quorum of a governmental body at a social function unrelated to the public business that is conducted by the body, the attendance by a quorum of a governmental body at a regional, © 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 State v. Doyal, --- S.W.3d ---- (2018) state, or national convention or workshop, ceremonial event, or press conference, if formal action is not taken and any discussion of public business is incidental to the social function, convention, workshop, ceremonial event, or press conference. The term includes a session of a governmental body. Id. § 551.001(4). Lastly, chapter 551 defines “quorum” as “a majority of a governmental body, unless defined differently by applicable law or rule or the charter of the governmental body.” Id. § 551.001(6). In analyzing section 551.144 of TOMA, 2 the U.S. Court of Appeals for the Fifth Circuit held that “[t]ransparency is furthered by allowing the public to have access to government decisionmaking.... The private speech itself makes the government less transparent regardless of its message. The statute is therefore content-neutral.” Asgeirsson, 696 F.3d at 461-62. The Asgeirsson court held that a regulation is not content-based merely because the applicability of the regulation depends on the content of the speech. Id. at 459. “A statute that appears content-based on its face may still be deemed content-neutral if it is justified without regard to the content of the speech.” Id. at 459-60. Doyal contends that Asgeirsson was abrogated by Reed v. Town of Gilbert, U.S. , 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). He emphasizes that this Court need not follow cases from the Fifth Circuit Court of Appeals and argues that two additional U.S. Supreme Court cases “show that Section 551.143 does not pass constitutional muster even under intermediate scrutiny[,]” 3 and that Asgeirsson dealt with section 551.144, which is “a simple, clear statute[,]” but section 551.143 is “so vague that experts call it ‘gibberish’ and are confused about its meaning and application.” *4 First, we note that Reed does not mention or discuss Asgeirsson, and we reject Doyal's assertion that Reed abrogated Asgeirsson. See Reed, 135 S.Ct. at 2218-39. Second, in Reed, the issue facing the Supreme Court was the constitutionality of a town's “Sign Code” that prohibited the display of outdoor signs without a permit, but exempted numerous categories of signs from that requirement, including ideological signs, political signs, and temporary directional signs relating to a qualifying event. Id. at 2224-25. In Reed, a church and its pastor wished to advertise the time and location of its Sunday church services, which were held in a variety of different locations due to financial constraints. Id. at 2225. The church was twice cited for exceeding the time limits for displaying temporary directional signs, as well as its failure to include the date of the event on the signs. Id. The church filed suit in federal district court, arguing that the Sign Code violated its freedom of speech. Id. at 2226. After the District Court granted summary judgment in favor of the town, the Court of Appeals affirmed, and the Supreme Court granted certiorari. Id. After concluding that the town's Sign Code was clearly not content-neutral, but instead was “content based on its face[,]” the Supreme Court held that the Sign Code could not survive strict scrutiny because the Sign Code was not narrowly tailored to further a compelling government interest. Id. at 2228-32. We conclude that, unlike the circumstances in Reed, which involved the particular type of speech or message on signs, section 551.143 of TOMA is directed at conduct, i.e., the act of conspiring to circumvent TOMA by meeting in less than a quorum for the purpose of secret deliberations in violation of TOMA. See Tex. Gov't Code Ann. § 551.143; Reed, 135 S.Ct. at 2228-32; Asgeirsson, 696 F.3d at 461-62. It is not the content of the deliberations that is targeted by section 551.143; rather, section 551.143 targets the act of knowingly conspiring to engage in deliberations that circumvent the requirements of TOMA. See Tex. Gov't Code Ann. § 551.143. “The prohibition in TOMA is applicable only to private forums and is designed to encourage public discussion[.]” Asgeirsson, 696 F.3d at 461. Therefore, we reject Doyal's contention that we must apply strict scrutiny in reviewing section 551.143. This Court's opinion in Ex parte Poe, 491 S.W.3d 348 (Tex. App. Beaumont 2016, pet. ref'd), is instructive. In Ex parte Poe, the appellant asserted that the disorderly conduct statute is facially unconstitutional due to its alleged vagueness and its alleged violation of his rights under the First, Second, Fifth, and Fourteenth Amendments. Id. at 350. The statute at issue in Ex parte Poe provided that “ ‘A person commits an offense if he intentionally or knowingly ... displays a firearm or other deadly weapon in a public place in a manner calculated to alarm.’ ” Id. at 354. This Court concluded © 2018 Thomson Reuters. No claim to original U.S. Government Works. 4 State v. Doyal, --- S.W.3d ---- (2018) that the statute punishes conduct (displaying a firearm in a public place in a manner calculated to cause alarm) rather than protected expression, and that the statute bears a rational relationship to the State's legitimate interest in protecting its citizens from harm. Id. We therefore rejected Poe's argument that strict scrutiny applied, and we began by presuming that the statute is valid and that the Legislature did not act arbitrarily or unreasonably in enacting it. Id. We also rejected Poe's argument that the word “alarm” was undefined and inherently subjective, and instead gave the undefined terms in the statute their plain meaning. Id. In the case at bar, Doyal argues that section 551.143 is vague because the terms “conspire,” “circumvent,” and “secret” are not defined, and the statute does not explain what type of deliberations are covered. As was the case in Poe, the terms at issue have a plain meaning. “Conspire” is commonly understood to mean “to make an agreement with a group and in secret to do some act (as to commit treason or a crime or carry out a treacherous deed): plot together[.]” Webster's Third International Dictionary 485 (2002). “Circumvent” means “to overcome or avoid the intent, effect, or force of: anticipate and escape, check, or defeat by ingenuity or stratagem: make inoperative or nullify the purpose or power of esp. by craft or scheme[.]” Id. at 410. “Secret” means “kept from knowledge or view: concealed, hidden” and “done or undertaken with evident purpose of concealment[.]” Id. at 2052. *5 Doyal asserts that because chapter 551 defines “deliberation” as a verbal exchange during a meeting between a quorum of members concerning an issue within the jurisdiction of the governmental body or any public business, yet section 551.143 refers to deliberations of less than a quorum, the statute is unconstitutionally vague. See Tex. Gov't Code Ann. §§ 551.001(2), 551.143. The Attorney General has opined that TOMA does not require that a governmental body's members be in each other's physical presence to constitute a quorum, and, therefore, section 551.143 applies to “members of a governmental body who gather in numbers that do not physically constitute a quorum at any one time but who, through successive gatherings, secretly discuss a public matter with a quorum of that body.” Tex. Att'y Gen. Op. No. GA-0326 p. 3 (2005). 4 The Attorney General explained that the definition of “deliberations” as used in section 551.143 “is consistent with its definition in section 551.001 because ‘meeting in numbers less than a quorum’ describes a method of forming a quorum, and a quorum formed this way may hold deliberations like any other quorum.” Id. at p. 4; see Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F.Supp.2d 433, 473, 476 (W.D. Tex. 2001). The Attorney General also opined that “[t]his construction is discernible from a plain reading of the provision.” Tex. Atty's Gen. Op. No. GA-0326 p. 4. We find the Attorney General's reasoning persuasive. We conclude that section 551.143 describes the criminal offense with sufficient specificity that ordinary people can understand what conduct is prohibited. See Holcombe, 187 S.W.3d at 499. The statute provides reasonable notice of the prohibited conduct. See Holcombe, 187 S.W.3d at 499; see also Kolender, 461 U.S. at 357, 103 S.Ct. 1855; see also Tex. Gov't Code Ann. § 551.143. We conclude that the statute is reasonably related to the State's legitimate interest in assuring transparency in public proceedings. See Asgeirsson, 696 F.3d at 461-62. The alleged overbreadth of section 551.143 is not real and substantial when judged in relation to its plainly legitimate sweep. See Broadrick, 413 U.S. at 615, 93 S.Ct. 2908. Doyal has not satisfied his burden to prove that the statute is unconstitutionally vague and overbroad. See id. We sustain the State's appellate issues, reverse the trial court's order dismissing the indictment, and remand the cause to the trial court for further proceedings consistent with this opinion. REVERSED AND REMANDED. All Citations --- S.W.3d ----, 2018 WL 761011 Footnotes © 2018 Thomson Reuters. No claim to original U.S. Government Works. 5 State v. Doyal, --- S.W.3d ---- (2018) 1 Doyal is the elected County Judge of Montgomery County, and not technically a commissioner. The County Judge is a member of Commissioners Court. Tex. Loc. Gov't Code Ann. § 81.001(a) (West Supp. 2017). 2 Section 551.144 makes calling or aiding in calling a closed meeting, closing or aiding in closing a meeting to the public, or participating in a closed meeting a criminal offense. Tex. Gov't Code Ann. § 551.144 (West 2017). 3 Doyal argues that under Packingham v. North Carolina, U.S. , 137 S.Ct. 1730, 198 L.Ed.2d 273 (2017) and Matal v. Tam, U.S. , 137 S.Ct. 1744, 198 L.Ed.2d 366 (2017), section 551.143 cannot survive even intermediate scrutiny. In those cases, the Supreme Court invalidated a law banning sex offenders from using social media and held that the First Amendment bars a law that prohibited disparaging trademarks. Packingham, 137 S.Ct. at 1735, 1738; Matal, 137 S.Ct. at 1751. We reject the assertion that these cases render it impossible for section 551.143 to survive intermediate scrutiny. 4 We recognize the difficulties this language causes the State in its attempt to prove this element beyond a reasonable doubt; however, a statute that creates difficulty for the State in meeting its burden of proof is not unconstitutional. End of Document © 20 8 Thomson Reuters. No c a m to or g na U.S. Government Works. © 2018 Thomson Reuters. No claim to original U.S. Government Works. 6 APPENDIX NO. 2 APPELLEE’S BRIEF, Cause No. 04-17-00123-CR ACCEPTED 09-17-00123-CR NINTH COURT OF APPEALS BEAUMONT, TEXAS 8/21/2017 3:29 PM CAROL ANNE HARLEY CLERK NO. 09-17-00123-CR COURT OF APPEALS FOR THE NINTH DISTRICT OF TEXAS Beaumont, Texas STATE OF TEXAS Plaintiff - Appellant, v. CRAIG DOYAL Defendant - Appellee. Appeal from the 221st Judicial District Court Montgomery County, Texas Trial Court Cause No. 16-06-07315-CR Hon. Randy Clapp APPELLEE CRAIG DOYAL’S BRIEF Rusty Hardin RUSTY HARDIN & ASSOCIATES, LLP State Bar. No. 08972800 5 Houston Center Cathy Cochran 1401 McKinney, Suite 2250 State Bar No. 09499700 Houston, Texas 77010 Andy Drumheller Telephone: (713) 652-9000 State Bar No. 00793642 Facsimile: (713) 652-9800 Naomi Howard Email: rhardin@rustyhardin.com State Bar No. 24092541 Email: ccochran@rustyhardin.com Email: adrumheller@rustyhardin.com Attorneys for Appellee Craig Doyal Email: nhoward@rustyhardin.com ORAL ARGUMENT REQUESTED IDENTITY OF PARTIES AND COUNSEL The parties and counsel listed below are involved in this matter. Appellant: The State of Texas Appellee: Craig Doyal Counsel for Appellant: Chris Downey The Downey Law Firm 2814 Hamilton Street Houston, Texas 77004 David Cunningham 2814 Hamilton Street Houston, Texas 77004 Joseph R. Larsen Sedgwick, LLP 1200 Smith Street Houston, Texas 77002 Counsel for Appellee: Rusty Hardin Cathy Cochran Andy Drumheller Naomi Howard RUSTY HARDIN & ASSOCIATES, LLP 5 Houston Center 1401 McKinney, Suite 2250 Houston, Texas 77010 ii TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ........................................................... ii TABLE OF CONTENTS ......................................................................................... iii INDEX OF AUTHORITIES......................................................................................v STATEMENT REGARDING ORAL ARGUMENT ............................................. ix ISSUES PRESENTED...............................................................................................x STATEMENT OF FACTS ........................................................................................1 SUMMARY OF THE ARGUMENT ........................................................................3 ARGUMENT .............................................................................................................5 I.  Because Section 551.143 is a content-based law that restricts speech, it is (1) presumed unconstitutional and (2) subject to strict scrutiny. ........................................................................................5 A.  The Standard of Review: “Strict scrutiny” applies to all content-based statutes restricting speech. ...................................5 B.  Section 551.143 is a content-based regulation of speech. ..........8 1. Attorney General Opinion GA-0326 (2005) rewrote Section 551.143. ...............................................................8 2. Section 551.143 restricts “secret deliberations.” ............11 3. A statute that singles out and regulates speech of a specific subject matter is a content-based limitation of speech, subject to strict scrutiny.................................12 a. Reed v. Town of Gilbert clarified that Section 551.143 is a content-based regulation. .................12 b. Reed abrogated Asgeirsson v. Abbott. ..................15 c. The State claims that Reed, McCullen, and Asgeirsson have been analyzed by a Texas federal court. .........................................................17 C.  Post-Reed, courts nationwide have invalidated numerous content-based laws regulating speech. ......................................20 D.  Even before Reed, laws restricting political speech were especially likely to be found unconstitutional. .........................23 iii II.  The State has not shown that Section 551.143 passes strict scrutiny. ...............................................................................................26 A.  The State has failed to prove that Section 551.143 serves a compelling need that is not already met by other TOMA provisions. .................................................................................26 1. TOMA addresses important, but not compelling, governmental interests. ...................................................27 B.  The State has failed to prove that Section 551.143 is narrowly tailored. ......................................................................31 1. Section 551.143 has the demonstrated effect of chilling public officials’ free speech. .............................34 C.  Section 551.143 is unconstitutionally vague as well as overbroad. .................................................................................37 III.  Section 551.143 does not pass even intermediate scrutiny. ................41 PRAYER ..................................................................................................................45 CERTIFICATE OF SERVICE ................................................................................46 CERTIFICATE OF COMPLIANCE .......................................................................47 APPENDIX Defendant Craig Doyal’s Motion to Dismiss the Indictment ............................Tab A iv INDEX OF AUTHORITIES Cases Asgeirsson v. Abbott 696 F.3d 454 (5th Cir. 2012) ......................................... passim Auspro Enterprises, LP v. Texas Dept. of Transp. 506 S.W.3d 688 (Tex. App.—Austin 2016, pet. filed) .................................20 Burrage v. United States 134 S.Ct. 881 (2014)......................................................................................10 Cahaly v. Larosa 796 F.3d 399 (4th Cir. 2015) .........................................................................22 Champion v. Commonwealth 2017 WL 636420, __ S.W.3d ___ (Ky. Feb. 16, 2017) ................................21 Citizens United v. Federal Election Commission 130 S.Ct. 876 (2010)......................................................................................16 Defense Distributed v. U.S. Dept. of State 121 F.Supp.3d 680 (W.D. Tex. 2015) ...........................................................17 Defense Distributed v. U.S. Dept. of State 2017 WL1032309 (5th Cir., Mar. 15, 2017) .................................................19 Defense Distributed v. U.S. Dept. of State 838 F.3d 451 (5th Cir. 2016) .........................................................................18 Draego v. City of Charlotteville,Va. 2016 WL 6834025 (W.D. Va. 2016) .............................................................25 Esperanza Peace and Justice Center v. City of San Antonio 316 F.Supp.2d 433 (W.D. Tex. 2001) .................................................... 32, 33 Ex parte Lo 424 S.W.3d 10 (Tex. Crim. App. 2013) ................................................ passim Ex parte Perry 483 S.W.3d 884 (Tex. Crim. App. 2016) ........................................... 6, 23, 25 Ex parte Thompson 442 S.W.3d 325 (Tex. Crim. App. 2014) ................................................. 6, 23 Florida State Bar v. B.J.F. 491 U.S. 524 (1989).......................................................................................28 v Grayned v. Rockford 408 U.S. 104 (1972).......................................................................................37 In re Texas Senate 36 S.W.3d 119 (Tex. 2000) ...........................................................................28 Ind. Civil Liberties Union v. Ind. Sec’y of State No. 1:15-CV-01356-SEB-DML (D. Ind. 2015) ............................................22 Jenevein v. Willing 493 F.3d 551 (5th Cir. 2007) .........................................................................24 Long v. State 931 S.W.2d 285 (Tex. Crim. App. 1996) ............................................... 23, 37 Mabry v. Union Parish School Board 974 So.2d 787 (La. App. 2014) .....................................................................10 Manzi v. State 88 S.W.3d 240 (Tex. Crim. App. 2002) ..........................................................3 Matal v. Tam 2017 WL 2621315 (June 19, 2017) .................................................... 5, 41, 42 Mays v. State 476 S.W.3d 454 (Tex. Crim. App. 2015) ........................................................3 McIntyre v. Ohio Elections Comm’n 514 U.S. 334 (1995).......................................................................................24 Mnyofu v. Board of Education of Rich Township High School Dist. 227 2016 Westlaw 13197336 (N.D. Ill. 2016) .....................................................25 Norton v. City of Springfield 768 F.3d 713 (7th Cir. 2014) .........................................................................21 Norton v. City of Springfield 806 F.3d 411 (7th Cir. 2015) .........................................................................21 Packingham v. North Carolina 2017 WL 2621313 (June 19, 2017) .......................................................... 5, 41 Penrod Drilling Corp. v. Williams 868 S.W.2d 294 (Tex. 1993) .........................................................................17 Police Dept. of Chicago v. Mosley 408 U.S. 92 (1972).........................................................................................15 vi Rangra v. Brown 566 F.3d 515 (5th Cir. 2009) .........................................................................17 Reed v. Town of Gilbert 135 S.Ct. 2218 (2015)............................................................................ passim Renton v. Playtime Theatres, Inc. 475 U.S. 41 (1986).........................................................................................17 Republican Party of Minnesota v. White 536 U.S. 765 (2002).......................................................................................24 Rideout v. Gardner 123 F. Supp. 3d 218 (D.N.H. 2015) ..............................................................22 Rosemond v. Markham 135 F.Supp.3d 574 (E.D. Ky. 2015) ..............................................................23 Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd. 502 U.S. 105 (1991).......................................................................................32 Skilling v. United States 561 U. S. 358 (2010) .......................................................................................9 State v. Bishop 787 S.E.2d 814 (N.C. 2016) ..........................................................................22 Susan B. Anthony List v. Driehaus 814 F.3d 466 (6th Cir. 2016) .........................................................................24 Thomas v. Schroer 2017 WL 1208672 (W.D. Tex. March 31, 2017) ..........................................20 Turner Broadcasting Sys., Inc. v. FCC 512 U.S. 622 (1994).........................................................................................7 United States v. Bass 404 U. S. 336 (1971) .....................................................................................10 United States v. Salerno 481 U.S. 739 (1987).........................................................................................6 Ward v. Rock Against Racism 491 U.S. 781 (1989).................................................................................. 7, 17 Washington State Grange v. Washington State Republican Party 552 U.S. 442 (2008).........................................................................................6 vii Washington v. Glucksberg 521 U.S. 702 (1997).........................................................................................6 Working America, Inc. v. City of Bloomington 142 F.Supp.3d 823 (D. Minn. 2015) .............................................................22 Other Authorities Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny, 59 VANDERBILT L. REV. 793 (2006).................................................7 C. Robert Heath & Emily Willms Rogers, Did the Attorney General Shine Light on the Confusion in Texas’ Sunshine Law? Interpreting Open Meetings Act Provision § 551.143, 7 TEX. TECH. ADMIN. L.J. 97, 99 (2006) ................ 8, 31 Carlos Doroteo, The Texas Open Meetings Act: An Old-Fashioned, Wild-West, First Amendment Shoot-Out, 56 S. TEX. L. REV. 675, 708 (2015)..................9 Devon Helfmeyer, Do Public Officials Leave Their Constitutional Rights at the Ballot Box? A commentary on the Texas Open Meetings Act, 15 TEX. J. CIVIL LIB. & CIVIL RIGHTS 205, 227-28 (2010) ..................................... 29, 30 Hugh Hansen, Symposium: Most Important Free Speech Case in Many Years; http://www.scotusblog.com/2017/06/symposium-important-free-speech- case-many-years/ ...........................................................................................42 Sam Kinch, Sharpstown Stock-Fraud Scandal, The Handbook of Texas Online .....9 Scott Houston, Texas Open Meetings Act: Constitutional?, 13 TEX. TECH. ADMIN. L.J. 79, 100 (2011)...........................................................................................8 viii STATEMENT REGARDING ORAL ARGUMENT Oral argument is essential to the full development of the constitutional issue in this case of first impression in the United States. Although all fifty states have open meeting laws, no jurisdiction has a criminal conspiracy statute like Section 551.143, and apparently there has never been a successful criminal conviction for a “walking quorum” or “daisy chain” violation of an open meetings law. This is an issue of grave practical importance to Texas officials subject to the Texas Open Meetings Act (TOMA). ix ISSUES PRESENTED I. Because Section 551.143 is a content-based law that restricts speech, it is (1) presumed unconstitutional and (2) subject to strict scrutiny. II. The State has not shown that Section 551.143 passes strict scrutiny. III. Section 551.143 does not pass even intermediate scrutiny under the Supreme Court’s most recent cases. x STATEMENT OF FACTS In 2015, Montgomery County was choking with traffic. Residents were demanding road relief from county commissioners. Despite public outcry, a road bond proposal on the May 2015 ballot failed to pass, in part, because the Texas Patriots PAC, a local Tea Party group, actively campaigned against it. The commissioners continued to hear complaints about traffic, but were reluctant to risk another road bond ballot defeat. In August 2015, the PAC indicated they would be willing to support a road bond package if their fiscal concerns were addressed. Representatives of the PAC requested a meeting with County Judge Doyal. Facilitated by Marc Davenport, Judge Doyal and Commissioner Riley met with the PAC to hear proposals for reconsidering a road bond proposal. After the meeting, the PAC, Judge Doyal, and Commissioner Riley held a press conference announcing the results of the meeting, and Judge Doyal announced that he was placing a revised road bond on the agenda for consideration by the full Commissioners’ Court. After discussion and public comment, the Commissioners’ Court voted unanimously to put a new road bond on the November ballot. Two months later, voters passed the road bond by 60%, whereas the May proposal had failed by 60%.1 1 See Appendix A, Motion to Dismiss, pp. 4-6 for additional background facts. 1 The State filed criminal charges against Montgomery County Judge Craig Doyal, Commissioners Charley Riley and Jim Clark, and Marc Davenport, a political consultant, for purportedly conspiring to violate the Texas Open Meetings Act (TOMA). After an evidentiary hearing, the trial judge granted Judge Doyal’s Motion to Dismiss because Government Code, Section 551.143, violated the Free-Speech Clause of the First Amendment. Judge Doyal agrees with the State that whether Section 551.143 passes constitutional muster is a question of law, not a question of fact. The hearing on the motion to dismiss gave the State an opportunity to present evidence to prove that this penal law served a compelling governmental need and was narrowly tailored to serve only that compelling need. Judge Doyal and his fellow defendants offered evidence that the statute is both overbroad (covers too much protected speech) and under-inclusive (does not cover the most important public officials) and was unconstitutionally vague. In the interest of brevity, the witnesses’ testimony is referred to only at relevant points in this brief.2 2 To the extent that the legal issues are supported by witnesses’ testimony or credibility assessments, appellate courts defer to the trial judge who, as Johnny-on-the-Spot, is best situated to make those judgments. Thus, all facts are viewed in the light most favorable to the 2 SUMMARY OF THE ARGUMENT The purpose of the Texas Open Meetings Act (TOMA) is to increase governmental transparency, discourage fraud and corruption, and decrease public mistrust of government. Judge Doyal respects and embraces transparency in governmental affairs. He does not challenge TOMA as a “sunshine” statutory scheme to ensure openness. However, one single conspiracy statute within that Act—Section 551.143— is unconstitutionally overbroad and vague. It is a content-based regulation of speech which restricts “secret deliberations,” i.e. speech, about “public business” by public officials gathering in less than a quorum outside of a properly posted open meeting. It acts as a blunderbuss when a stiletto is needed. By its vagueness and breadth, it “chills” the free speech rights of public officials. As a content-based law that restricts speech, Section 551.143 is presumed unconstitutional and is subject to strict scrutiny. Under Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), the Supreme Court’s most recent relevant case, a law regulating speech is “content-based” if that law “applies to particular speech because of the topic discussed or the idea or message expressed.” Id. at 2227. As the Court of Criminal Appeals has explained, “[i]f it is necessary to look at the party prevailing in the trial court. See Mays v. State, 476 S.W.3d 454, 459 (Tex. Crim. App. 2015); Manzi v. State, 88 S.W.3d 240, 254 (Tex. Crim. App. 2002) (Cochran. J, concurring). 3 content of the speech to decide if the speaker violated the law, then the regulation is content-based.” Ex parte Lo, 424 S.W.3d 10, 15 n.12 (Tex. Crim. App. 2013). Section 551.143 is a content-based statute because one must know what public officials are saying when they gather in less than a quorum. If they are talking about “public business” or “an issue within the jurisdiction of the governmental body,” then Section 551.143 applies. If they are talking about baseball or the weather, then Section 551.143 does not apply. The State has failed to show that Section 551.143 passes strict scrutiny. It has failed to show that this specific statute (as opposed to TOMA as a general scheme) (1) serves a compelling governmental interest; (2) is necessary to protect that interest which cannot be adequately protected by other means, and (3) is narrowly tailored to serve only that compelling interest, i.e., that it does not prohibit more speech than is necessary. The State relies almost exclusively upon a pre-Reed Fifth Circuit case, Asgeirsson v. Abbott, 696 F.3d 454 (5th Cir. 2012), in arguing that Section 551.143 is a “content-neutral” law subject to intermediate scrutiny. First, Asgeirsson was abrogated by Reed, which contradicted its premise and reasoning. 4 Second, this court need not follow Fifth Circuit cases, but it must follow the precedent of the Supreme Court and the Court of Criminal Appeals. Third, even if Asgeirsson were still good law and the controlling precedent, the most recent Supreme Court cases, Packingham v. North Carolina, 2017 WL 2621313 (June 19, 2017), and Matal v. Tam, 2017 WL 2621315 (June 19, 2017), show that Section 551.143 does not pass constitutional muster even under intermediate scrutiny. Fourth, and most important, Asgeirsson dealt with Section 551.144, which is a simple, clear statute: Public officials–look around you; if there’s a quorum, you must conduct a properly posted open meeting under TOMA. Section 155.143, on the other hand, is so vague that experts call it “gibberish” and are confused about its meaning and application. ARGUMENT I. Because Section 551.143 is a content-based law that restricts speech, it is (1) presumed unconstitutional and (2) subject to strict scrutiny. A. The Standard of Review: “Strict scrutiny” applies to all content- based statutes restricting speech. Appellate courts review de novo whether a statute is facially constitutional. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When someone attacks the constitutionality of a statute, courts usually begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id. 5 at 15. Normally, the burden rests on the person challenging the law to establish its unconstitutionality. Id. But when the State seeks to restrict or punish speech based on its content, that usual presumption is reversed. Id.3 Content-based regulations are presumptively invalid, and the State must rebut that presumption. Id.4 Courts apply the "most exacting scrutiny to 3 The State argues that the Supreme Court disfavors facial challenges and quotes Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450-51 (2008). That case involved a lawsuit filed immediately after Washington enacted a “modified blanket primary” system in which candidates could express their political party preference on the ballot regardless of whether the party approved of them. The parties filed suit, claiming that this system violated their First Amendment rights of free association because voters would think the candidates were supported by the political party. Unfortunately, they did not wait to see whether voters really were confused. It was all speculation because the law had not yet been applied to any elections. There was no live controversy and no risk yet to either a candidate or a political party. Here, however, there certainly is a case and controversy and grave risk. County Judge Doyal and Commissioner Riley were charged with committing a crime under Section 551.143 and are positioned, as were John Lo and Ronald Thompson, to mount a pretrial facial challenge to its constitutionality under the First Amendment. Ex parte Lo,424 S.W.3d at 14; Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App. 2014). A facial challenge to the constitutionality of a criminal statute is best made before trial so that the defendant, if he prevails, need not endure the extravagant time, expense, and anxiety that any such criminal trial entails, when the ultimate outcome is a matter of law, not fact. See Ex parte Perry, 483 S.W.3d 884, 902 (Tex. Crim. App. 2016) (facial challenge to penal statute on First Amendment grounds may be made–and appealed–pretrial). 4 The State has mistakenly relied on cases that do not deal with the Free Speech Clause in stating that one who makes a facial challenge to a law “must show ‘that no set of circumstances exists under which [the statute] would be valid’” or that the statute lacks any “plainly legitimate sweep.” Appellant’s Brief at 22 and 30. Those cases, United States v. Salerno, 481 U.S. 739, 745 (1987) (finding that Bail Reform Act which authorized pretrial detention was not facially unconstitutional under the Eight Amendment), and Washington v. Glucksberg, 521 U.S. 702, 740, n. 7 (1997) (holding that Washington’s ban on assisted suicide was rationally related to legitimate government interests), are irrelevant to a discussion of constitutionality under the First Amendment, which has its own jurisprudence and standards. See Ex parte Perry, 483 6 regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content." Id. (quoting Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994)). To satisfy the strict-scrutiny standard, a law that regulates speech must be (1) necessary to serve a compelling state interest and (2) narrowly drawn. Ex parte Lo, 424 S.W.3d at 15. “A law 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.” Id.5 But if a less restrictive means of serving the compelling interest could be as effective in achieving the legitimate purpose of the statute, then the law in question does not satisfy strict scrutiny. Id. Given this test, “It is the rare case in which a speech restriction withstands strict scrutiny.” Reed v. Town of Gilbert, 135 S.Ct. 2218, 2236 (2015). (Kagan, J., concurring) (citations and quotations omitted).6 S.W.3d at 902-03 (“Under the First Amendment's “overbreadth” doctrine, a law may be declared unconstitutional on its face, even if it might have some legitimate applications.”). 5 Regulations that are content-neutral, i.e. that regulate speech without regard to its content, are subject to a less exacting “intermediate scrutiny” which requires that the challenged law not be “substantially broader than necessary” to achieve the government’s important interest. Ward v. Rock Against Racism, 491 U.S. 781, 799-800 (1989). 6 Colloquially, “strict in theory, fatal in fact.” According to one source, seventy percent of all laws subject to strict scrutiny in federal courts are struck down, while seventy-eight percent of challenged laws affecting speech are struck down. Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny, 59 VANDERBILT L. REV. 793 (2006). 7 B. Section 551.143 is a content-based regulation of speech. Section 551.143(a) states: A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter. On its face, this statute does not make sense. According to one expert witness, the statute is “gibberish.” (RR2 at 40). Gathering in numbers of less than a quorum does not violate a statute that requires a quorum to meet in open session. You either have a quorum or you don’t; with the former you have open meetings, with the latter, you have informal discussions. 1. Attorney General Opinion GA-0326 (2005) rewrote Section 551.143. From its enactment in 1973, courts, commentators, experts, and (most importantly) public officials who try to obey this criminal law have been confused.7 So confused, that in 2004 (some thirty years after it had originally been 7 See generally, C. Robert Heath & Emily Willms Rogers, Did the Attorney General Shine Light on the Confusion in Texas’ Sunshine Law? Interpreting Open Meetings Act Provision § 551.143, 7 TEX. TECH. ADMIN. L.J. 97, 99 (2006) (“Despite these attempts at clarification” by courts and attorney general opinions “confusion persists, and local officials desiring to steer clear of violating the Act look for a bright-line rule that clearly defines when discussions among members of a governing body outside a formal public meeting are permissible and when they are not.”); Scott Houston, Texas Open Meetings Act: Constitutional?, 13 TEX. TECH. ADMIN. L.J. 79, 100 (2011) (“Even with vast knowledge of the act [TOMA], practitioners still have trouble advising clients. Many elected officials ask if they can talk about public business with other members of the governmental body outside of a properly posted meeting. 8 enacted but apparently never used in the criminal context)8 Tom Maness, the long- time Jefferson County District Attorney, requested an Attorney General opinion about it. He “had significant doubt as to the constitutionality of the statute,” there was “significant disagreement” as to its intended meaning, and he was concerned that it was “void for vagueness.”9 The Attorney General basically rewrote the statute to prohibit: A member or members of a governmental body who knowingly conspire to circumvent [TOMA] by gathering in numbers that do not physically constitute a quorum at any one time but who through successive gatherings create a quorum of that body for the purpose of secret deliberations in violation of [TOMA].10 Generally, the answer is no.”); Carlos Doroteo, The Texas Open Meetings Act: An Old- Fashioned, Wild-West, First Amendment Shoot-Out, 56 S. TEX. L. REV. 675, 708 (2015) (“The sheer complexity and confusion arising out of this real world event [the Port of Houston board member fight] provides a strong case that TOMA is overbroad and vague, since it is difficult to discern when exactly the law has been broken.”). 8 Section 551.143 was added to the original 1967 Open Meetings Act in 1973, after the 1971 Sharpstown stock-fraud scandal. Sam Kinch, Sharpstown Stock-Fraud Scandal, The Handbook of Texas Online. In 1993, the Open Meetings Act was codified in chapter 551 of the Texas Government Code. 9 https://texasattorneygeneral.gov/opinions/opinions/50abbott/rq/2004/pdf/RQ0291GAf 10 As one expert witness testified, the only way for Section 551.143 to mean what the AG’s opinion says it means is to invent a lot of new words and put them in the statute (RR2 at 56). But an AG opinion cannot add new words or new definitions to a penal statute–a law that must be strictly construed and whose provisions are interpreted under the Rule of Lenity to favor the defendant, not the State. It is a “familiar principle that ‘ambiguity’ in the ambit of criminal statutes should be resolved in favor of lenity.” Skilling v. United States, 561 U. S. 358, 410 (2010). That principle prevents courts from giving the words of a criminal statute “a meaning that is different from 9 We are told by Attorney General Opinion GA-0326 (2005) that the purpose of Section 551.143 is to prevent and punish a “walking quorum” or “daisy chain” secret deliberation. Id. at *2. This occurs, according to the Attorney General, when members conspire to commit a criminal offense by having secret deliberations through serial communications with each other until a quorum is reached. Id. Of course, that is not what the law actually says.11 The Attorney General simply found that construction “discernible” from his own reading. Id.12 [their] ordinary, accepted meaning, and that disfavors the defendant.” Burrage v. United States, 134 S.Ct. 881, 891 (2014). And it means that when a criminal statute has two possible readings, courts do not “‘choose the harsher alternative’” unless the legislature has “‘spoken in language that is clear and definite.’” United States v. Bass, 404 U. S. 336, 347–349 (1971). 11 A Kansas civil statute does say what the Attorney General argues that Section 551.143 meant to say. See Appendix A, Motion to Dismiss, fn. 8. 12 According to a 1990 Louisiana Attorney General Opinion, “a ‘walking quorum’ is a meeting of a public body where different members leave the meeting and different members enter the meeting so that while an actual quorum is never physically present an actual quorum during the course of the meeting participates in the discussion.” Mabry v. Union Parish School Board, 974 So.2d 787, 789 (La. App. 2014) (quoting Op. Atty. Gen. No. 90-349, July 26, 1990). The Mabry court held that the “casual telephone encounters where several board members individually and separately discussed the situation” concerning an employment contract would have “to reach a much more structured level with secretive binding force on at least a quorum of the membership before the Open Meetings Act would be implicated.” Id. The court explained: [W]e find that the informal exchange of ideas and opinions preliminary to a meeting of elected officials is important for the issues of agenda setting and compromise that make a deliberative body function efficiently. For one member to have a phone conversation with another, wherein opinions and thoughts on a topic are expressed, does not mean or create a presumption that those parties’ views will be fixed in stone in solidarity before the public meeting. 10 2. Section 551.143 restricts “secret deliberations.” The State has not cited a single case from Texas or any other jurisdiction involving a successful criminal conviction under Section 551.143 or for having a “walking quorum” deliberation, and Judge Doyal is unable to find such a case in any of the 50 states that have Open Meetings laws.13 Nonetheless, Judge Doyal assumes that what the Legislature intended to prohibit and punish in Section 551.143 is some sort of “secret deliberation.” A “deliberation” is defined as “a verbal exchange during a meeting between a quorum of a governmental body, or between a quorum of a governmental body and another person, concerning an issue within the jurisdiction of the governmental body or any public business.” Section 551.001(2). Therefore, the law, on its face, prohibits and punishes certain “verbal exchanges,” i.e., speech. Of course, Section 551.143 directly contradicts the statutory definition of “deliberation” which requires a quorum, but Section 551.143 makes it a crime for “deliberations” by less than a quorum of members. Those two statutes are impossible to reconcile. So Id. at 790. Louisiana courts construe their open-meetings law in a common-sense manner to provide both openness for the public and sufficient means for public officials to obtain information and exchange views on public business. 13 See Appendix A, Motion to Dismiss, fns. 2& 3 for an explanation of the Westlaw searches. 11 even beyond the First Amendment problems, the statute is unenforceable as self- contradictory “gibberish.” It is a classic oxymoron. But putting aside unenforceability, the next question is whether that speech restriction is content-based. It is. 3. A statute that singles out and regulates speech of a specific subject matter is a content-based limitation of speech, subject to strict scrutiny. a. Reed v. Town of Gilbert clarified that Section 551.143 is a content-based regulation. The United States Supreme Court recently reiterated that “content-based” regulations of speech are subject to strict scrutiny. Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015).14 And, unremarkably, the Supreme Court explained that a law 14 Reed involved a town’s sign code which divided signs that do not need city permits into three categories: “ideological” (signs “communicating a non-commercial message or ideas”), “political,” and “temporary directional signs relating to a qualifying event.” 135 S.Ct. at 2224. These categories are “based on the type of information they convey.” Id. And the code imposes more stringent restrictions on temporary directional signs than the other two types. Id. at 2225. A small, cash-strapped church that held services “catch-as-catch-can” at various town locations sued because the law governing their “temporary directional signs” was more restrictive in time, place, and manner than the other two sign categories. Although lower courts admitted that a police officer had to read the church’s sign before he knew whether it fell into the third category, they called the law “content-neutral” by saying that the town’s “interests in regulating temporary signs are unrelated to the content of the sign.” Id. at 2226. The Supreme Court in essence said, “So what?” The law, on its face, is content-based, regardless of (1) the legitimate reasons for enacting it, (2) whether it singles out one particular idea or viewpoint for differential treatment, or (3) whether that law seems a “reasonable” time, place, and manner regulation. Id. at 2227-30. If you need to know the content of the speech or sign to know if the particular law applies–Stop. That’s enough. The law is content-based and 12 regulating speech is “content-based,” if that law “applies to particular speech because of the topic discussed or the idea or message expressed.” Id. at 2227. That is, does one need to know what was said before deciding the law applies to that “verbal exchange”? If yes, then the law is content-based on its face.15 For example, suppose two council members are standing in the City Hall rotunda, talking, gesturing, and putting their heads together, then one leaves and a third council member approaches and begins to talk to the first. Does Section 551.143 apply to their “verbal exchanges”?16 We don’t know until we hear what they were discussing—maybe the weather (or a baseball game) or maybe a road bond (or traffic lights). Section 551.143 applies only to “verbal exchanges” about “an issue within the jurisdiction of the governmental body or any public business.” Section subject to strict scrutiny. Id. (“Because the Town’s Sign Code imposes content-based restrictions on speech, those provisions can stand only if they survive strict scrutiny”). 15 In Reed, the Supreme Court explained that a law may be content-based in either of two ways: (1) facially by regulating speech by its topic or subject or (2) inferentially when the government’s purpose or justification for enacting the law depends on the underlying idea or message expressed. That is, the law is facially neutral, but the motives or purpose in enacting it were content-based. 135 S.Ct. at 2228. Because Section 551.143 is content-based on its face, we need not address the second prong, just as the Reed Court did not need to address that second, inferential, prong. 16 The right question for the constitutional inquiry is whether the statute applies at all, not whether this evidence is sufficient to show that they have conspired to commit an offense under Section 551.143. 13 551.001(2). The applicability of Section 551.143, therefore, depends on the subject or topic of the conversation. If the topic is “public business” (whatever that is) or “any issue within the jurisdiction” of the city council, then Section 551.143 regulates and limits that speech. It is a classic, straight-forward example of a content-based statute.17 See Reed, 135 S.Ct. at 2227 (noting that “[s]ome facial distinctions based on a message are obvious, defining regulated speech by particular subject matter”);18 see also Ex parte Lo, 242 S.W.3d at 15, n.12. One must look at the content of a member’s “verbal expression” to decide whether Section 551.143 applies to gatherings of less-than-a-quorum; therefore, under Reed and Lo, it is a content-based regulation of speech, and it is subject to strict scrutiny. 17 For example, a law that prohibits one from giving any speech at Hyde Park Corner between midnight and 6:00 a.m. is a neutral time, place, and manner restriction. However, a law that prohibits anyone (or just a public official) from giving a speech about “public business” between midnight and 6:00 a.m. is a content-based statute subject to strict scrutiny, even though it might also be a reasonable time, place, and manner restriction. 18 Even when a regulation does not address content on its face, it is considered content-based if it cannot be “justified without reference to the content of the regulated speech.” Reed, 135 S.Ct. at 2227. 14 b. Reed abrogated Asgeirsson v. Abbott. Reed has caused heartburn in courts across America because it reiterated19 that if a law regulating speech is content-based, then strict scrutiny applies. Period. The Supreme Court explained that over the years this simple, common-sense doctrine had been muddied by courts suggesting that content-based regulations weren’t subject to strict scrutiny if, for example, “the purpose and justification for the law are neutral.” Id. at 2228 (“A law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.”). That is what led the Fifth Circuit astray in Asgeirsson v. Abbott, 696 F.3d 454 (5th Cir. 2012), when it upheld TOMA as a “content-neutral” scheme. Asgeirsson was decided three years before Reed clarified that strict scrutiny applies to all content-based laws affecting speech.20 The Fifth Circuit stated, 19 In Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96 (1972), the Supreme Court invalidated a picketing statute because it prohibited picketing within 150 feet of schools, except for picketing that involved labor disputes. That was a content-based regulation in which application of the law depended on whether the picketing in question dealt with the subject of labor disputes. It was an improper content-based regulation of speech. Id. Reed is not new law, it is old law, Mosley, reaffirmed. 20 See Appendix A, Motion to Dismiss, pp. 9-14, for a history of “The Alpine case” and Asgeirsson. 15 A regulation is not content-based, however, merely because the applicability of the regulation depends on the content of the speech. A statute that appears content- based on its face may still be deemed content-neutral if it is justified without regard to the content of its speech. Id. at 460.21 “No, no, no,” said the Supreme Court in Reed. If the applicability of the law depends on the content of the speech, it is content-based and strict scrutiny applies. Period. End of story. 21 The Fifth Circuit suggested that TOMA is a “disclosure” law just like the political campaign- reporting requirements discussed in Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010). A “disclosure” law is one that opens up and reveals past events. For example, campaign contributions must be “disclosed” or made public after the recipient accepts them. Id. at 914. We “disclose” something after it has occurred. Similarly, the Texas Public Information Act (Texas Open Records Act), Tex. Gov’t Code chapter 552, is a “disclosure” act requiring that all governmental bodies (the same bodies that are required to hold open meetings) make the records of their prior activities and decisions open to the public upon request. For example, any public citizen or newspaper reporter may request a copy of all emails, phone logs, or minutes by commissioners that are kept by the county government concerning a specific topic. Although certain sections of TOMA might be considered “disclosure” statutes, e.g., the posting of an agenda to “disclose” to the public what topics had been decided upon for discussion at an open meeting, Section 551.143 is certainly not a “disclosure” law, it is a “regulation of speech” law. (RR3 at 27-28; explaining that Citizens United is a disclosure statute, as are the time, place, and manner rules concerning a governmental meeting, but Section 551.143 is a “prohibition” statute, so Citizens United is inapplicable to it). It is the Open Records Act that is analogous to Citizen’s United, not Section 551.143. As the experienced trial judge noted at the hearing, if Section 551.143 were deemed a “disclosure” law, then any violation would presumably be cured if the officials disclosed and reaffirmed their prior discussions and decisions in a regularly posted open meeting (RR2 at 158-159). How could it still be a crime if public disclosure cured the violation? Of course, the main focus in Citizens United was striking down, on First Amendment grounds, a statute that was “an outright ban, backed by criminal sanctions” restricting corporate political donations made close to the time of an election as a violation of free-speech rights.” Id. at 888- 89. Section 551.143. The same type of ban is at issue in Section 551.143. 16 The Fifth Circuit in Asgeirsson, like the Ninth Circuit in Reed, mistakenly thought that even if a statute was content-based on its face, other justifications could save it from strict scrutiny.22 But now the Fifth Circuit, like the Ninth Circuit, this court, and the Court of Criminal Appeals (which had predicted the Reed holding in its 2013 Ex parte Lo decision),23 must, under the Supremacy Clause, follow the United States Supreme Court.24 c. The State claims that Reed, McCullen, and Asgeirsson have been analyzed by a Texas federal court. The State in its brief cites Defense Distributed v. U.S. Dept. of State, 121 F.Supp.3d 680 (W.D. Tex. 2015), a federal district court case, as support for its 22 In all fairness, the Supreme Court may have led courts astray in such cases as Ward v. Rock Against Racism, 491 U.S. 781, 799-800 (1989) (noting that “[t]he principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys”), and Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986) (upholding a zoning ordinance and suggesting that, in some instances, a law that appears content-based on its face might still be deemed content-neutral if it were justified without regard to the content of the speech such as “secondary effects”). But as the Supreme Court explained as it distinguished Ward in Reed, “an innocuous justification cannot transform a facially content-based law into one that is content-neutral.” 135 S.Ct. at 2228. 23 The Fifth Circuit itself had accurately predicted the Reed result and reasoning in Rangra, its first TOMA decision. Rangra v. Brown, 566 F.3d 515, 521 (5th Cir. 2009) (“A speech regulation is content-based if it defines the regulated speech by reference to its content”; agreeing that the criminal provisions of TOMA are “content-based regulations that require the state to satisfy the strict-scrutiny test in order to uphold them.”). Reed resurrected Rangra and abrogated Asgeirsson. See Appendix A, Motion to Dismiss, pp. 9-14. 24 See Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (Texas courts “are obligated to follow only higher Texas courts and the United States Supreme Court.”). 17 contention that Asgeirsson is still valid after Reed. Appellant’s Brief at 38-39. The State claims that Reed, McCullen, and Asgeirsson were all analyzed by the district court when it denied injunctive relief based on, among other factors, the substantial likelihood of the plaintiff’s First Amendment claim succeeding on the merits. While the district court made such an analysis, the Fifth Circuit did not approve it. Defense Distributed v. U.S. Dept. of State, 838 F.3d 451 (5th Cir. 2016). The majority of the three-judge panel of the Fifth Circuit in its review of the district court’s denial of injunctive relief expressly declined to address the First Amendment.25 The panel focused instead on the balancing of harm test for granting injunctive relief. However, Judge Edith Jones declared, “I dissent from this court’s failure to treat the issues raised before us with the seriousness that direct abridgments of free speech demand.” Id. at 461 (Jones, J., dissenting). She explained exactly how the 25 The Fifth Circuit majority asserts three times that its opinion in Defense Distributed v. U.S. Dept. of State, 838 F.3d 451 (5th Cir. 2016), does not address the merits of the First Amendment claims made by the plaintiffs who were seeking injunctive relief:  “[W]e decline to address the merits requirement.” Id. at 458.  “We therefore affirm the district court’s denial and decline to reach the question of whether Plaintiff-Appellants have demonstrated a substantial likelihood of success on the merits [of their First Amendment claim].” Id. at 460.  “These are difficult questions, and we take no position on the ultimate outcome other than to agree with the district court that it is not yet the time to address the merits [of the First Amendment claim].” Id. at 461. 18 U.S. State Department violated Defense Distributed’s First Amendment rights and chastised the district court for its analysis: “The district court, moreover, clearly erred in gauging the level of constitutional protection to which this speech is entitled: intermediate scrutiny is inappropriate for the content-based restriction at issue here. (Why the majority is unwilling to correct this obvious error for the sake of the lower court’s getting it right on remand is a mystery).” Id. at 463. While the majority opinion shed no light on whether Asgeirsson was still valid law—the case wasn’t mentioned once—the dissent made the proper analysis of speech regulations and looked at many of the same issues present in this case: plain meaning of the statute, whether the statute regulates speech, and the proper constitutional analysis. The State cannot claim that its reliance on Asgeirsson and intermediate scrutiny would survive Fifth Circuit review post-Reed. Not only did Judge Jones reject use of Asgeirsson and intermediate scrutiny for content-based speech regulations, but four other Fifth Circuit judges believed that Defense Distributed should have been granted en banc rehearing and the merits of the First Amendment claim addressed. Defense Distributed v. U.S. Dept. of State, 2017 WL1032309 (5th Cir., Mar. 15, 2017). Judge Jennifer Elrod issued a scathing dissent from the denial of rehearing and scolded the majority for relying on “a mere assertion of a 19 national security interest.” Id. at *2. In sum, the Fifth Circuit has definitely not reaffirmed Asgeirsson after Reed. C. Post-Reed, courts nationwide have invalidated numerous content- based laws regulating speech. The Austin Court of Appeals has noted that many courts across the nation were surprised by the Reed decision as they had “construed pre-Reed precedent as allowing ‘content-based regulations [to be treated] as content neutral if the regulations are motivated by a permissible content-neutral purpose.’” Auspro Enterprises, LP v. Texas Dept. of Transp., 506 S.W.3d 688, 700 (Tex. App.— Austin 2016, pet. filed) (invalidating portions of Texas Highway Beautification Act as a content-based regulation of speech that was not narrowly tailored to serve compelling governmental interests).26 Nonetheless, the Austin Court of Appeals was constrained to follow Reed rather than an earlier Texas Supreme Court decision upholding the challenged law. Id. at 698-700. 26 See also Thomas v. Schroer, 2017 WL 1208672 (W.D. Tex. March 31, 2017) (noting Auspro and agreeing that the billboard Act was subject to strict scrutiny under Reed and it was not sufficiently narrowly tailored; held unconstitutional). 20 Indeed, content-based laws regulating speech have been falling like dominoes after Reed clarified when a law affecting speech is content-based and, therefore, subject to strict scrutiny.27 For example, the Seventh Circuit had originally upheld an anti-panhandling statute against a First Amendment challenge because it regulated by subject matter rather than by viewpoint. Norton v. City of Springfield, 768 F.3d 713, 717-18 (7th Cir. 2014). The law was called a content-neutral regulation of time, place, and manner of speech prohibiting “oral request[s] for an immediate donation of money,” but permitting signs and oral pleas to send money later. Id. On rehearing after Reed, the court reversed itself and held that the Supreme Court “abolishe[d] any distinction between content regulation and subject-matter regulation” and made it clear that “a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.” Norton v. City of Springfield, 806 F.3d 411, 412 (7th Cir. 2015).28 27 The cases are collected on a weekly basis at 24 A.L.R. 7th Art. 6 (“Construction and Application of Reed v. Town of Gilbert, Ariz, Providing that Speech Regulation Targeted at Specific Subject Matter is Content-Based Even If It Does Not Discriminate Among Viewpoints Within that Subject Matter”). 28 See also Champion v. Commonwealth, 2017 WL 636420, __ S.W.3d ___ (Ky. Feb. 16, 2017) (anti-panhandling statute struck down as a content-based unconstitutional regulation of speech). 21 Application of a “time, place, or manner” doctrine to a statute that targets a specific subject matter of speech can no longer be deemed content-neutral. Id. Under Reed, a statute prohibiting “ballot selfies” was struck down despite the state’s claim that (1) the law’s purpose was to prevent “vote buying and voter coercion,” and (2) it was a reasonable time, place, and manner restriction.29 So was a South Carolina law prohibiting certain robocalls30 and North Carolina’s cyber-bullying law.31 A Minnesota statute regulating certain door-to-door solicitations was struck down under Reed because it required a license for the solicitation of some, but not all, materials.32 And a Kentucky law prohibiting a 29 Rideout v. Gardner, 123 F. Supp. 3d 218 (D.N.H. 2015) (“Because the law require[d] regulators to examine the content of the speech to determine whether it include[d] impermissible subject matter,” it was subject matter-based discrimination), aff’d, 838 F.3d 65 (1st Cir. 2016), cert. denied 137 S.Ct. 1435 (April 3, 2017); see also, Ind. Civil Liberties Union v. Ind. Sec’y of State, No. 1:15-CV-01356-SEB-DML, at *19 (D. Ind. 2015) (same). 30 Cahaly v. Larosa, 796 F.3d 399, 402-05 (4th Cir. 2015). 31 State v. Bishop, 787 S.E.2d 814, 817-21 (N.C. 2016) (statute that criminalized posting “private, personal or sexual information pertaining to a minor” was content-based; although protecting children from online bullying was a compelling interest, the law was not narrowly tailored–criminalizing personal information to “annoy” a minor swept too broadly). 32 Working America, Inc. v. City of Bloomington, 142 F.Supp.3d 823 (D. Minn. 2015) (even though city had benign motive and content-neutral justification of reducing fraud and criminal activity and honoring homeowners' heightened expectation of privacy inside their own home, ordinance treated solicitors differently depending on function or purpose of their speech, and need to obtain license depended on content of message). 22 newspaper columnist without an in-state license from writing a “family psychologist” advice column was content-based and invalid after Reed.33 Most of these statutes were merely civil regulations of speech, not penal provisions that criminalized speech. When determining the constitutionality of criminal sanctions against speech, strict scrutiny is frequently lethal in its demand for a particularly compelling governmental need and an extremely narrow tailoring. See Ex parte Perry, 483 S.W.3d at 912-17 (coercion of a public official statute facially unconstitutional under Free-Speech Clause); Ex parte Thompson, 442 S.W.3d 325, 330 (Tex. Crim. App. 2014) (improper photography statute facially unconstitutional in violation of freedom of speech); Ex parte Lo, 424 S.W.3d at 14; see also Long v. State, 931 S.W.2d 285, 297 (Tex. Crim. App. 1996) (stalking statute facially unconstitutional and vague because its language was too expansive). D. Even before Reed, laws restricting political speech were especially likely to be found unconstitutional. Political speech is at the very core of the First Amendment, and courts are especially protective of persons exercising their free-speech rights when discussing politically controversial or public-interest issues. McIntyre v. Ohio Elections 33 Rosemond v. Markham, 135 F.Supp.3d 574, 581-85 (E.D. Ky. 2015) (attempt by state board of psychologists to regulate parenting advice in newspaper was a content-based restriction which did not survive strict scrutiny under Reed). 23 Comm’n, 514 U.S. 334, 347-48 (1995).34 Both before and after Reed, no form of speech is more protected than this core political speech which enjoys “exacting” scrutiny, upholding restrictions only when they are narrowly tailored to serve an “overriding state interest.” Id. at 347. Thus, under McIntyre and Reed, an Ohio law that prohibited and punished political false statements that include all false speech ab [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4253574. Public record. Not legal advice.