# Ex Parte Tucci

> Texas Supreme Court · June 30, 1993 · 36 Tex. Sup. Ct. J. 1154

URL: https://www.frixlaw.com/law-library/cases/9763422

## Case

- **Full name:** Ex Parte Reverend Keith TUCCI. Ex Parte Randall TERRY. Ex Parte Patrick MAHONEY. Ex Parte Wendy WRIGHT. Ex Parte Flip BENHAM. Ex Parte Joseph SLOVENIC. Ex Parte Bob JEWITT
- **Court:** Texas Supreme Court
- **Decided:** June 30, 1993
- **Citations:** 36 Tex. Sup. Ct. J. 1154; 859 S.W.2d 1; 1993 Tex. LEXIS 100; 1993 WL 233435
- **Precedential status:** Published
- **Opinion:** Dissent by Hecht
- **Judges:** Doggett, Gonzalez, Hecht, Phillips, Cornyn, Enoch
- **Cited by:** 109 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/9763422

## How later opinions describe it (automated extraction)

- stating that “[t]he rule that no appeal will lie from a judgment of contempt is dubious at best, but firmly entrenched and seldom challenged”
- stating that the Texas Constitution provides greater rights of free expression than does the federal constitution

## Opinion text

Dissenting opinion by
HECHT, J.,
joined by ENOCH, J.
APPENDIX I
Response to Concurrence of Chief Justice Phillips
Today at least five members of this Court continue to subscribe to the broad conception of individual liberty guaranteed under our state constitution and embodied in Davenport v. Garcia, 834 S.W.2d 4 (Tex.1992, orig. proceeding). While requiring a mere nine paragraphs to explain his own rationale for agreeing with the judgment entered today, Chief Justice Phillips writes at length about a guarantee of the Texas Constitution that he then chooses to ignore completely, since he is personally unable “to articulate its meaning with confidence.” 859 S.W.2d at 33. Instead, he prefers to resolve this case solely on federal constitutional grounds which are “more familiar” to him. Id.
Rejecting the views of both this plurality and Justice Gonzalez regarding the import of Davenport for the instant case, his expansive writing addresses issues that even he concedes “would be folly to attempt to resolve here.” Id. at 16 n. 1. His search for “astonishing errors” in Davenport, id. at 28, is, itself, rather astonishing. In his zeal to dissent from each and every underpinning of that decision, Chief Justice Phillips goes to the extreme of questioning support for the court’s observations that
“[f]rom the outset of this state’s history, freedom of expression was a priority.” id. at-(quoting Davenport, 834 S.W.2d at 7 ), and that
The authoritarianism and unresponsiveness of Mexico to [certain] attempts to exercise and establish protection of free speech were a contributing factor to Texas’ revolution and independence.
Id.
Refusing to acknowledge the early commitment of Texans to freedom embodied in their Proposed Constitution for the State of Texas (1833), see id., Chief Justice Phillips disregards experiences that shaped their concerns including Mexican appropriation of printing presses brought to Texas, 17 a mandated printer’s oath “not to disturb the peace,” 18 instructions by the Commandant at Bexar to “prevent the enemies of order from circulating reports” 19 and attempted military censorship of newspaper comment on “odious and noisy questions” about the conduct of governmental affairs. 20
Indeed, our Texas Declaration of Independence emphasizing that the Mexican government had removed “even the semblance of freedom,” complained that the expression of the citizenry in the form of “petitions and remonstrances” had not only been disregarded but that spokesmen like Stephen F. Austin had been “thrown into dungeons.” Austin, himself, had previously called for “an inviolable guarantee of liberty of speech.” 21 He contended that
A free press was the battery, pen and ink the small arms, and sound principles the balls and shells with which well disseminated and united public opinion [could] *10 beat down aristocratic privilege and abuse. 22
When such efforts proved unavailing, and as a basis for “exhort[ing] every citizen to march as soon as possible” so that Texas “be freed from military despots before it is closed,” he also, as Chairman of a Committee of Safety, in a Circular to the public protested that the Mexican government had “suppressed, by military influence, the expression of public opinion.” 23
This history is, of course, ignored in today’s attack on the court’s prior writing in Davenport , as is the call for a “full, clear, and comprehensive bill of rights” in the earlier Declaration of Independence, made at Goliad on December 20,1835. 24 This call was answered shortly thereafter in 1836 with the adoption of the Declaration of Rights in the Constitution of the Republic of Texas. It is the freedom of expression guarantee of Section 4 of this Declaration to which the court in Davenport referred in concluding that
Rather than a restriction on governmental interference with speech such as that provided by the First Amendment of the United States Constitution, Texans chose from the beginning to assure the liberties for which they were struggling with a specific guarantee of an affirmative right to speak.
834 S.W.2d at 7-8 .
But Chief Justice Phillips will have none of this. There is nothing unique about Texas, he insists. In defiance of the historical record, he insists that there is simply insufficient repetition by the Texans of the revolutionary era in asserting their concerns about liberty and claims an interest in this vital subject must be confined to one man, Stephen F. Austin, long revered as the father of Texas. 859 S.W.2d at 30. Any fair analysis of our history justifies our reading of it in Davenport ; the desire for freedom of expression was hardly limited to one man or one document. So devoid of historical support is Chief Justice Phillips that he must cite to an article whose very title contradicts his opinion and speaks to what is special about this state— Rampant Individualism in the Republic of Texas. 25 In fact, that study heralds
a widespread passion for freedom of speech, which the motto of the Matagor-da Colorado Herald further exemplified: “Give me liberty to know, to utter, and to argue freely, above all liberties." 26
He prefers to denigrate the work of the Texas drafters of that same era on the unusual grounds that they must have considered the constitutional experience of others and because the strong language they chose in 1836 did not attract the enthusiasm of one historian a century later. 27 *11 Certainly Texans did not live wholly isolated from the rest of the world and human experience in 1836,1845, 28 or 1876, 29 nor do they now. 30 Of course, there are others here and abroad who have made enormous contributions to freedom. The question resolved by the court in Davenport and addressed once again today is whether the Texas judiciary will contribute to that effort with independent decisionmaking or serve only to parrot the thinking of an omniscient federal judiciary on every civil liberties question.
Not content to disparage only the first clause of article I, section 8 on which Davenport centered, Chief Justice Phillips extends his criticism to the second as well:
[A]nd no law shall ever be passed curtailing a liberty of speech, or of the press.
Though aware that such wording was not commonly employed elsewhere at the time of its original adoption in Texas, Chief Justice Phillips immediately assumes that our Texas founders were simply penning platitudes rather than constitutional guarantees. 859 S.W.2d at 22-23. He refuses to accord any significance to this clause, first incorporated by Texans in 1836, because of differing amendments rejected at the Pennsylvania Constitutional Convention of 1790 31 and the Texas Reconstruction Convention of 1868. As to the latter, it is difficult to see how the rejection of an amendment offered by a delegate “who voted with the Radical Republicans” to strike this clause constitutes “at least circumstantial evidence” of anything.
Passing quickly over the particular wording of that part of article I, section 8 applicable here and in Davenport , Chief Justice Phillips instead dissects another largely uninterpreted clause. 859 S.W.2d at 23. In order to dilute our state constitutional free speech guarantee, this concurrence focuses almost exclusively on constitutional language dealing with libel actions. See, e.g., id. at 28 (deriding as a “curious conclusion” Davenport’s reference to Texas’ early commitment to freedom of speech, since the constitution also “in common with most American state constitutions, expressly recognized criminal libel prosecutions”); id. at 25 (condemning the Court’s “characterizing” of the 1875 Convention with regard to resolutions containing a truth defense in libel actions). 32 The law of defamation is *12 now declared the superior lens through which the Texas commitment to freedom of expression must be viewed. Not only did this Court in Davenport fail to appreciate the marvels of this wonderful looking glass, but Chief Justice Phillips also notes the similar failings of those other state courts that have “deemed their free expression clauses broader than the corresponding federal guarantee.” Id. at n. 24.
While irrelevant to any of the parties before us, a review of the Texas law of libel is absolutely essential to the concurrence; without it, an argument could never be made that “proponents of free expression died hard” 33 in Texas nor the quite extraordinary assertion that
[by] 1876, Texas, at least from a constitutional standpoint, was no longer on the cutting edge of free expression; it was not even in the mainstream.
859 S.W.2d at 25. Such claims hardly comport with the reality of nineteenth century Texas in which the ordinary newspaper editor has been described as disposed
to discuss public men and public measures with the utmost freedom, to denounce without restraint what he believed to be wrong, and to advocate with vigor and fervor what he conceived to be right. 34
Only during the period of reconstruction that followed the Civil War and immediately preceded the 1876 Convention was the Texas editor
confronted by the unaccustomed fact that the frank expression of his opinions as to public policy and the acts of those in authority was liable to be construed as treason. 35
Interestingly, Chief Justice Phillips’s primary expert on our state’s history of freedom of expression is the occupying Union General during Reconstruction, who advances the quite preposterous claim that such freedom “ha[d] never existed in Texas,” 859 S.W.2d at 31 (quoting General J.J. Reynolds, November 4, 1868). This wholly unsupported assertion contrasts with the decision of even the delegates to the Reconstruction Convention of 1868 36 to reject conformity of our Texas Bill of Rights with the Federal Bill of Rights 37 .
*13 We are told that our Texas guarantee of freedom of expression is but a poor copy of an earlier Pennsylvania Constitution. 859 S.W.2d at 21 (citing Pa. Const, art. IX, § 7 (1790) as “the paradigm for the Texas guarantees”). Even were it true that our forbears simply copied identical language from the federal constitution or that of another state, that does not mean that they accepted the identical meaning attached by that other forum, either then or now. But in this particular instance, what we are not told is that the Pennsylvania courts have regularly interpreted this language as “independently protect[ing]” expression, William Goldman Theaters, Inc. v. Dana, 405 Pa. 83 , 173 A.2d 59 (1961), and as “even more protective of speech than the federal Constitution.” Franklin Chalfont Assoc. v. Kalikow, 392 Pa.Super. 452 , 573 A.2d 550, 556 (1990); see also Commonwealth v. Tate, 495 Pa. 158 , 432 A.2d 1382 (1981). Nor are they alone. Almost a century ago wording similar to that contained in article I, section 8 was described as “terse and vigorous” and “broader” than the comparable federal provision with which it “varies” and as “giv[ing] [citizens] greater liberty in the exercise of the right granted.” Dailey v. Superior Court, 112 Cal. 94 , 44 P. 458, 459 (1896). The highest court of another state to whose constitutional language on freedom of expression Chief Justice Phillips refers has reached the same conclusion. See O’Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521 , 528 N.Y.S.2d 1, 4-6 , 523 N.E.2d 277, 280-82 (1988). Indeed, what he demands today is not so much the imposition of Pennsylvania constitutional language but the minority approach to interpreting that language, which that very state has rejected. 38
The consternation expressed in today’s concurrence is hardly limited to Davenport ; what really seems to upset Chief Justice Phillips is a decade of important related jurisprudence. Both this court and our sister court, the Court of Criminal Appeals have recognized the independent vitality of our Texas Constitution rather than relying exclusively on the federal judiciary. See, e.g., LeCroy v. Hanlon, 713 S.W.2d 335, 338-39 (Tex.1986); In re Baby McLean, 725 S.W.2d 696, 698 (Tex.1987); Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983); Heitman v. State, 815 S.W.2d 681, 690 (Tex.Crim.App.1991). He repudiates the rationale of all of these opinions.
Additionally Chief Justice Phillips declares these rulings of our highest Texas courts “simply wrong” in describing a federal constitutional floor for individual liberties, which the states may equal or exceed with a ceiling — a greater level of protection. 859 S.W.2d at 32. When both federal and state constitutional claims are raised, a state court may not, under the supremacy clause, U.S. Const, art. VI, cl. 2, afford less protection to individual rights than that guaranteed by our national Bill of Rights. In that sense, the prior writings of this court are fully accurate regarding a “federal safety net” — a floor for our liberties and a potentially higher state ceiling. It is also true that an independent state judiciary may interpret its fundamental law as affording less protection than our federal charter. Chief Justice Phillips prefers the latter. In his view not only does our state charter fail to offer a more expansive ceiling for broader freedoms but it fails even to offer a floor.
Chief Justice Phillips insists that the poor wording selected by the Texas frontiersmen provides even less protection than those guarantees found elsewhere, 859 S.W.2d at 31; apparently our State Constitution offers only superfluous subflooring for individual rights. In essence his position is that anything not already written about the scope of freedom of expression *14 can best be obtained from Washington. 39 The possibility that state jurists have the capacity for thoughtful, independent consideration of even identical constitutional language 40 is not even a conceivable possibility. Fortunately our court continues to reject this view. Rather we agree that our own constitutional guarantees must be
truly independent of the rising and falling tides of federal case law both in method and in specifics. State courts cannot abdicate their responsibility for these independent guarantees, at least not unless the people of the state themselves choose to abandon them and entrust their rights entirely to federal law.
State v. Kennedy, 295 Or. 260, 666 P.2d 1316, 1323 (1983). Lost in the discussion of the law of Blackstone, of defamation and the federal courts, Chief Justice Phillips forgets that “[historical analysis is only a starting point” for understanding our Constitution; “[i]n no way must our understanding of its guarantees be frozen in the past.” Davenport, 834 S.W.2d at 19 . Our Texas Constitution is not a collection of meaningless paper promises, mere surplus-age to the federal guarantees. Rather we as jurists are summoned to give effect to its terms whenever liberty is threatened.
A state court that dares to give such independent meaning to the fundamental governing law adopted by its citizens assures only “five justices’ ephemeral notion of the greater good,” 859 S.W.2d at 32. A federal court only “do[es] good” and must be copied. A state court that assures greater liberty rights for its citizens must necessarily be in the “grab bag” business of “result oriented pronouncements;” a federal court only gets the right result with the right reasoning. Id. This is the essence of the view urged with such vehemence by Chief Justice Phillips in an attack not limited to the five jurists with whom he differs today, but aimed more generally at the disavowal of prior Texas rulings upholding state constitutionalism as well as those other state courts that have “deemed their free expression clauses ‘broader’ than the corresponding federal guarantee.” Id. at 32 n. 34; see also supra text accompanying n. 22. Chief Justice Phillips is more than willing to find fault with attempts to recognize our state constitution as a separate, firm basis for our liberties, but wholly reluctant to assist in a “principled articulation” and application of its terms. Id. at 32. To him, only the possibility that our state judiciary may interpret our state charter as affording less protection than the federal affords any hope “of principled state constitutional development.” Id. at 32 n. 34 (offering a rare line of praise for my opinion because of its acknowledgement that a state constitution could conceivably offer less protection).
The concurrence naturally derides as a “false construct,” Id. at 33, the sound rea *15 sons relied upon by this court in Davenport , 834' S.W.2d at 17-19, to justify looking first to our state constitution. 41 His broadside is further extended to a most accurate summary of the facts here while failing to identify a single, specific shortcoming in that recitation. 859 S.W.2d at 33-36 Chief Justice Phillips then concludes by copying not only the reasoning but the buzzwords of his sole “commentator” on “result-oriented pronouncements” — Justice Hecht’s concurrence in Davenport 42 — of which only a more verbose replay has been provided today. Id. at 37 . A new claim that our constitution has been treated as “a handy grab bag” 43 and old charges of “case-by-case activism” and “unseemly chauvinism,” id., 44 — charges directed at the just pride that this court has taken in our unique Texas heritage, our Texas Constitution, and our Texas jurisprudence — have been answered fully in Davenport :
In interpreting our constitution, this state’s courts should be neither unduly active nor deferential; rather, they should be independent and thoughtful in considering the unique values, customs, and traditions of our citizens....
While reflecting local concerns and assuring local accountability, reliance by this court on our own constitution allows Texas to have a meaningful voice in developing this nation’s jurisprudence....
■ As a state court, sitting in Texas, our expertise is in Texas law, our judges are Texas citizens and members of the Texas Bar, and our concerns are Texas concerns. If we simply apply federal law in all cases, why have a Texas Supreme Court?....
... [Consistent with the very diversity that supplies strength to our union, we build from experience in Texas and elsewhere to enhance individual liberty....
... [W]e accept today ... the responsibility to conduct a thoughtful, complete, and independent search for a sound understanding of our most fundamental state law.
834 S.W.2d at 18, 19, 20, 22, 23 . Hopefully an eventual willingness of all members of this Court to accept this responsibility will produce considerably “more substantial” efforts in the future. 859 S.W.2d at 37. All that remains “flawed” today is not the “methodological framework” of Davenport, id., but the unwillingness of four justices on this court to honor and protect it.
. See Eugene C. Barker, Notes on Early Texas Newspapers 1819-1836, 21 Sw.Hist.Q. 127, 128 (1918).
. Id. at 130 (describing printers’ oath).
. Letter from Colonel Domingo de Ugartechea [Commandant at Bexar] to the Principal Com-mandancy of Coahuila and Texas, dated July 15, 1835, 1 Papers of the Texas Revolution 245 (John Jenkins, ed. 1973).
. Letter from General Martin Perfecto de Cos to the Editors of the Mercurio de Matamoros dated March 31, 1835, 1 Papers of the Texas Revolution 50 (John Jenkins, ed. 1973), to which these early journalists appropriately expressed outrage, indicating that their writing about "'odious questions’ [was] indispensable [for] calling the attention of the Government” and noting the eagerness of the people for a response to the "remonstrance [that] had been made to the Government." See Letter from the Editors of Mercurio de Matamoros to General Martin Perfecto de Cos, Commandant General of the Eastern Internal States, dated April 13, 1835, id. 65, 66.
.See Eugene C. Barker, The Life of Stephen F. Austin 72 (2d ed. 1949).
. Id. at 342.
. Circular from Committee of safety of the jurisdiction of Austin, October 3, 1835, 1 Papers 19 (Jenkins).
. Nor was that call isolated. Austin had summoned Texans to "express our opinions on the present state of things, and to represent our situation to the government." Speech of Colonel Austin delivered September 8, 1835, 1 Papers 423, 427 (Jenkins). They were doing just that. In Nacogdoches with an "exchange [of] their ideas freely and fearlessly,” they sought "the preservation of human rights" and opposed "symptoms of tyranny dangerous to liberty.” Nacogdoches Meeting, August 15, 1835. Id. at 343-44. At the same time their neighbors sought newspaper publication of Resolutions adopted at San Jacinto insisting that “there are certain, essential, sacred and imprescriptible rights which must be guaranteed to every citizen.” See id. at 317-21.
. Ransom Hogan, Rampant Individualism in the Republic of Texas, 44 Sw.Hist.Q. 454, 456-57 (1941). Because these early Texans "were irascible” and "enjoyed fighting" often sparked by “[u]nbridled talk,” id, Chief Justice Phillips amazingly concludes that these people, who so prized freedom and individualism, lacked "tolerance” of expression.
. Id.
. See 859 S.W.2d at 29 (quoting Rupert N. Richardson, Framing the Constitution of the Republic of Texas, 31 Sw.Hist.Q. 191, 213 (1928)). This same commentator offers no support for Chief Justice Phillips' contention that Pennsylvania was the keystone state for the Texas freedom of expression provision. Speaking of our first charter, he writes that "[i]t does not appear that any one state constitution was followed.” Id. at 209. Commenting more specifically on the Declaration of Rights, he concludes
It appears that the framers of this article had before them a copy of the Constitution of the United States and that of several of the southern and western states, and that they gathered *11 from each whatever gems of political philosophy struck their fancy.
Id.
. Indeed, as indicated by another source upon whom Chief Justice Phillips relies:
although delegates to the Constitutional Convention of 1845 mentioned from time to time the provisions existing in constitutions elsewhere, they were ready to agree with Rusk that "We can reflect for ourselves and are capable of forming a Constitution for ourselves.”
Frederic L. Paxson, The Constitution of Texas, 1845, 18 Sw.Hist.Q. 386, 388 (1915).
. Davenport acknowledged that our current charter was “molded after reflection on the constitutions of other states [but should not] veer in meaning each time the United States Supreme Court issue[s] a new decision.” 834 S.W.2d at 16 (quoting James C. Harrington, The Texas Bill of Rights 41 (1987)).
. See Dow Chem. Co. v. Alfaro, 786 S.W.2d 674, 680 (Tex.1990) (Doggett, J., concurring) ("Never have we been required to forfeit our membership in the human race in order to maintain our proud heritage as citizens of Texas.”).
. Chief Justice Phillips relies not just on Pennsylvania’s rejection of wording similar to that incorporated in the second clause of section 8, 859 S.W.2d at 22, to prove the meaningless nature of the Texas free speech guarantee, but also on its acceptance of wording similar to that of the first clause of section 8. Id, at 20. Not acknowledging this inconsistency, he insists that what "was unquestionably a triumph for conservative commercial interests and their allies" in Pennsylvania in 1790 be controlling law in Texas in 1993. Id. at 21.
.In properly noting that "a proposal to replace the existing free expression provision with alternative language more similar to that of the First Amendment of the United States Constitution was explicitly rejected” in the 1876 Constitution, this Court in Davenport, 834 S.W.2d at 8 , referenced defeat of a resolution by delegate Brady in favor of "including an affirmative grant of the liberty to speak and publish.” Id. at n. 13. The court did not address the impact of the Convention’s handling of another clause, not at issue in Davenport , dealing with libel actions and incorporated in the same rejected resolution.
Nor is there any evidence to suggest that the same convention’s substituting the word "person” for "citizen” in article I, section 8 was some mere "printer’s error.” 859 S.W.2d at 30. Texas was not alone in broadening its protection to *12 every "person.” See The Kentucky Bill of Rights: A Bicentennial Celebration, 80 Ky.L.J. 1, 41 (1990-91) (noting substitution of "person" in the freedom of expression provision of section 8 of the Kentucky Constitution of 1891 for “citizen” in that of 1792, art. XIX, § 7).
.859 S.W.2d at 25 (quoting Frederic L. Pax-son, The Constitution of Texas, 1845, 18 Sw. Hist.Q. 386, 395 (1915)) (quoting W. Weeks, ed„ Debates of the Texas Convention 303 (Houston 1846)). Indeed, those debates reflect that the delegates chose a compromise whereby public figures were accorded less protection than private citizens.
By the contemporary standards of the day, this appears to have not been significantly different from what even some newspapers advocated. For example, editor Godwin Brown Cotton announced in the August 21, 1830 issue of The Texas Gazette, published at Sam Felipe de Austin, that "our press shall never be made the vehicle of accusations against the private character of any individual whatever." But, according to a later commentator,
public men, for public acts, [Cotton] says, are responsible and may be investigated in the press, but not so with private cases.
See Eugene C. Barker, Notes on Early Texas Newspapers 1819-1836, 21 Sw.Hist.Q. 127, 131— 32 (1918).
. A.C. Gray, A History of the Texas Press, in 2 A Comprehensive History of Texas, 1685-1897 368, 395 (Dudley G. Wooten, ed. 1989).
. Id. Indeed, the one specific example given of a nineteenth century prosecution for seditious libel was during this period:
The [editor of the Houston] Age charged that one of the officers of the State government was "the champion thief of America.” He was indicted by a Republican grand jury, charged with criminal libel, and gave bond in the sum of five thousand dollars for his appearance to answer. He republished the charge, insisted that it was true, and challenged the State to a trial; but the case was postponed from term to term and finally dropped.
Id. at 403-04.
. See Quinlan v. Houston & T.C. Ry. Co., 89 Tex. 356 , 34 S.W. 738, 744 (1896) (explaining that, pursuant to a proclamation of U.S. President Andrew Johnson, this convention met to restore the Constitution of 1845 and disavow the 1861 Secession Convention); see also Grigsby v. Peak, 57 Tex. 142, 145, 150-51 (1882).
. The delegates voted to retain Sections 3-21 of the Bill of Rights of the 1845 Constitution and rejected a committee recommendation that would have substituted a demand for federal conformity:
*13 The inhibitions of power enunciated in articles from one to eight inclusive, and thirteen, of the amendments to the Constitution of the United States, deny to the States, as well as to the General Government, the exercise of the powers therein reserved to the people, and shall never be exercised by the government of this State.
1 Journal of the Reconstruction Convention of 1868 235, 662 (1870).
. See Goldman Theaters, 173 A.2d at 69, 72 (Eagen, J., dissenting).
. In his demand for a wholly subservient role for Texas jurisprudence and his strained interpretation of the liberty guarantees contained in the Texas Constitution, Chief Justice Phillips overlooks the reality of federal jurisprudence. The vital meaning of constitutional language not uncommonly lies dormant. As the U.S. Supreme Court, in an opinion authored by Chief Justice Vinson, observed:
no important case involving free speech [initially guaranteed in 1791] was decided by this Court prior to Schenck v. United States, 249 US 47 [ 39 S.Ct. 247 , 63 L.Ed. 470 ] (1919).
Dennis v. United States, 341 U.S. 494, 503 , 71 S.Ct. 857, 864 , 95 L.Ed. 1137 (1951).
Similarly, more than half a century elapsed after enactment of the Fourteenth Amendment before its application of First Amendment guarantees to the states was acknowledged in Gitlow v. New York, 268 U.S. 652 , 45 S.Ct. 625 , 69 L.Ed. 1138 (1925). As recently as Prudential Ins. Co. v. Cheek, 259 U.S. 530, 538 , 42 S.Ct. 516, 520 , 66 L.Ed. 1044 (1922), the United States Supreme Court continued to declare that "the Constitution of the United States imposes upon the States no obligation to confer upon those within their jurisdiction ... the right of free speech....”
. See Judith S. Kaye, A Midpoint Perspective on Directions in State Constitutional Law, 1 Emerging Issues in State Const.Law 17, 19 (1988) (“that [some state constitutional provisions] are duplicated in the federal Constitution cannot mean that they are simply to be cloned to their federal counterparts”); see, e.g., Commonwealth v. Upton, 394 Mass. 363 , 476 N.E.2d 548, 555 (1985) (reaching conclusion contrary to United States Supreme Court based on differences concerning application of similar state and federal constitutional provisions).
.To support his reliance solely on federal law to decide claims made by Texas citizens under the Texas Constitution, Chief Justice Phillips disregards the overwhelming majority of commentators that approve efforts of state judiciaries to contribute to constitutional scholarship. See, e.g., Peter J. Galie, State Supreme Courts, Judicial Federalism and the Other Constitutions, 71 Judicature 100, 100 n. 10 (1987) (of approximately three hundred articles, "all but a handful are favorable"); Judith S. Kaye, A Midpoint Perspective on Directions in State Constitutional Law, 1 Emerging Issues in St. Const.L. 17, 17 (1988); William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U.L.Rev. 535 (1986); Stewart G. Pollock, Adequate and Independent State Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 63 Tex.L.Rev. 977 (1985); Hans A. Linde, E Pluribus — Constitu tional Theory and State Courts, 18 Ga.L.Rev. 165 (1984); Hans A. Linde, First Things First: Rediscovering the State's Bills of Rights, 9 U.Balt.L.Rev. 379, 383 (1980).
. Justice Hecht in turn agrees with Chief Justice Phillips that the particular expression at issue here is protected by the First Amendment despite his announcement that this court has no jurisdiction to make that determination. 859 S.W.2d at 65 (Hecht, J., concurring)
. Typical of the concurrence's misuse of authority, this phrase is pulled from Ronald R.K. Collins, Reliance on State Constitutions — Away from a Reactionary Approach, 9 Hastings Const. L.Q. 1 , 2 (1981). In fact Professor Collins, whose writings were relied upon in Davenport , criticizes the very view expressed by the concurrence. The entire thrust of the cited Collins article is that, instead of simply reacting to isolated federal decisions of which they disapprove, "state courts should look first to their own laws, and in that regard downplay their concern about ‘the ebb and flow of opinions on the Potomac.”’ Id. at 18 . This is the same interpretative method adopted by this court in Davenport , but to which the concurrence continues to object.
. Compare Davenport, 834 S.W.2d at 41 (Hecht, J., concurring).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763422. Public record. Not legal advice.