Amicus Curiae Brief — Charles Barton, Petitioner v. Texas

No. 22-430

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------CHARLES BARTON AND NATHAN SANDERS,

Petitioners,

v.

STATE OF TEXAS,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The Court Of Criminal Appeals Of Texas

---------------------------------♦--------------------------------BRIEF OF AMICUS CURIAE

UNIVERSITY OF VIRGINIA SCHOOL OF LAW

FIRST AMENDMENT CLINIC

IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------LIN WEEKS

Counsel of Record

GABRIEL ROTTMAN

IAN KALISH

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

FIRST AMENDMENT CLINIC

1156 15th Street NW

Washington, DC 20005

(202) 800-3533

lin.weeks@law.virginia.edu

Counsel for Amicus Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ......................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

4

I.

Application of the substantial overbreadth

doctrine is required, in part, because, as

construed, § 42.07(a)(7) can be applied to

prosecute newsgathering and publishing ......

4

A. The Texas court’s construction of

“electronic communication” encompasses online publishing, broadcasting,

and some newsgathering practices .......

6

B. An overbreadth analysis of § 42.07(a)(7)

is needed because the statute chills

speech by introducing avenues for state

retaliation against publishers and

newsgatherers, among others ............... 10

II.

The substantial overbreadth doctrine provides clarity to journalists and other

speakers while balancing competing interests ............................................................... 13

CONCLUSION .......................................................

16

ii

TABLE OF AUTHORITIES

Page

CASES

Alfaro v. Rempusheski,

No. CV 21-02271,

2021 WL 5995758 (D.N.J. Dec. 10, 2021) .......... 12, 13

Animal Legal Def. Fund v. Wasden,

878 F.3d 1184 (9th Cir. 2018) ..................................15

Branzburg v. Hayes,

408 U.S. 665 (1972) ...................................................8

Brayshaw v. City of Tallahassee,

709 F. Supp. 2d 1244 (N.D. Fla. 2010) ....................12

City of Austin, Texas v.

Reagan Nat’l Advert. of Austin, LLC,

142 S. Ct. 1464 (2022) ...............................................2

Dombrowski v. Pfister,

380 U.S. 479 (1965) ............................................. 3, 15

Fitts v. Kolb,

779 F. Supp. 1502 (D.S.C. 1991) ........................ 14, 15

Houston Chron. Pub. Co. v. City of Houston,

620 S.W.2d 833 (Tex. Civ. App. 1981) ........................9

Mills v. State of Ala.,

384 U.S. 214 (1966) ...................................................7

Nat’l Ass’n for Advancement of Colored People v.

Button,

371 U.S. 415 (1963) ...................................................2

Owens v. Chidi,

No. 14-cv-9730-6 (Ga. Super. Oct. 17, 2014) ...........12

iii

TABLE OF AUTHORITIES—Continued

Page

Rumsfeld v. Forum for Accad.

& Institutional Rights,

547 U.S. 47 (2006) .....................................................9

Scott v. State,

322 S.W.3d 662 (Tex. Crim. App. 2010) ....................9

State v. Mireles,

482 P.3d 942 (2021) .................................................14

Terminiello v. Chicago,

337 U.S. 1 (1949) .......................................................2

Thornhill v. Alabama,

310 U.S. 88 (1940) .....................................................2

United States v. Stevens,

559 U.S. 460 (2010) ......................................... passim

Virginia v. Black,

538 U.S. 343 (2003) ...................................................5

Virginia v. Hicks,

539 U.S. 113 (2003) .................................................15

Zemel v. Rusk,

381 U.S. 1 (1965) .......................................................8

STATUTES

N.J.S.A. § 2C:33-4.1(a)(2) ............................................13

Texas Penal Code § 28.04 .............................................9

Texas Penal Code § 42.07(a)(7) .......................... passim

Texas Penal Code § 42.07(b)(1) ................................ 6, 7

Wash. Rev. Code Ann. § 9.61.260 (West 2010) ...........11

iv

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

Amanda Gearing, Disrupting Investigative

Journalism: Moment of Death or Dramatic

Rebirth? (2021) ..........................................................7

Douglas E. Comer, The Internet Book: Everything You Need to Know About Computer Networking and How the Internet Works (2019) ..........6

Elisha Shearer, More than Eight-in-Ten Americans Get Their News from Digital Devices,

Pew Research (Jan. 12, 2021) ...................................6

Erin Coyle & Eric Robinson, Chilling Journalism: Can Newsgathering be Harassment or

Stalking?, 22 Comm L. Pol’y 65 (2017) ............... 3, 12

Eugene Volokh, One-to-One Speech vs. One-toMany Speech, Criminal Harassment Law, and

“Cyberstalking,” 107 Nw. Univ. L. Rev. 731

(2013) .......................................................................11

Henry Paul Monaghan, Overbreadth, 1981 Sup.

Ct. Rev. 1 (1981) ........................................................2

Margaret Sullivan, Online Harassment of Female Journalists is Real, and it’s Increasingly

Hard to Endure, Washington Post (Mar. 14,

2021) ..........................................................................3

Michelle Ferrier, Attacks and Harassment: The

Impact on Female Journalists and their Reporting, International Women’s Media Foundation and Troll-Busters.com (2018) ........................3

v

TABLE OF AUTHORITIES—Continued

Page

Note, The First Amendment Overbreadth Doctrine, 83 Harvard L. Rev. 844 (1970) ........................3

USA TODAY Staff, Help USA TODAY Tell the

Story of Who Stormed the US Capitol, USA

TODAY (Jan. 7, 2021) .............................................12

1

INTEREST OF AMICUS CURIAE1

Amicus curiae is the University of Virginia School

of Law First Amendment Clinic (the “UVA First

Amendment Clinic”). As an entity that frequently

represents journalists, news organizations, and other

members of the press, the UVA First Amendment

Clinic has a strong interest in this case, which concerns

a law punishing “electronic communications” repeatedly sent with the “intent to harass, annoy, alarm,

abuse, torment, or embarrass” and in a manner likely

to do so. As construed by the Texas Court of Criminal

Appeals, this law is a content-based restriction on

speech. Yet, the Texas court declined to apply this

Court’s doctrine of substantial overbreadth.

The UVA First Amendment Clinic writes to underscore the chilling effect this decision will have on the

publishing and newsgathering of journalists and other

members of the news media. Application of the overbreadth doctrine is needed to bring clarity to journalists in the state and prevent retaliation against

members of the press that the current construction of

the law may enable.

---------------------------------♦--------------------------------1

Pursuant to Supreme Court Rule 37, counsel for amicus curiae state that no party’s counsel authored this brief in whole or

in part; no party or party’s counsel made a monetary contribution

intended to fund the preparation or submission of this brief; no

person other than the amicus curiae, their members or their counsel made a monetary contribution intended to fund the preparation or submission of this brief; counsel of record for all parties

were given timely notice of the intent to file this brief; and counsel

of record for all parties have provided written consent to the filing

of the brief.

2

SUMMARY OF ARGUMENT

Petitioners are entitled to a judicial determination

as to whether they are being prosecuted under a constitutional statute. Terminiello v. Chicago, 337 U.S. 1,

5–6 (1949) (evaluating “[t]he statute as construed in

the charge to the jury” and finding it constitutionally

impermissible); Thornhill v. Alabama, 310 U.S. 88, 96

(1940) (given state court’s construction “there is no occasion to go beyond the face of the statute”). Because

the law in question restricts speech based on its content, Petitioners are entitled to have this determination conducted under the Court’s doctrine of

substantial overbreadth.2

Beyond that, however, the Court’s overbreadth

doctrine has an additional functional benefit. First

Amendment freedoms are “delicate and vulnerable,

as well as supremely precious in our society.” Nat’l

Ass’n for Advancement of Colored People v. Button,

371 U.S. 415, 433 (1963). Because these freedoms are

of such “transcendent value,” even “[i]mponderables

2

See City of Austin, Texas v. Reagan Nat’l Advert. of Austin,

LLC, 142 S. Ct. 1464, 1479–80 (2022) (Alito, J., concurring) (describing overbreadth doctrine as a “somewhat less demanding”

version of facial challenge that “applies when a law affects freedom of speech”); United States v. Stevens, 559 U.S. 460, 473 (2010)

(conceptualizing overbreadth analysis as a “ ‘second type of facial

challenge’ ” applicable in the First Amendment context) (quoting

Washington State Grange v. Washington State Republican

Party, 552 U.S. 442, 449 n.6 (2008)); see also Henry Paul Monaghan, Overbreadth, 1981 Sup. Ct. Rev. 1, 24 (1981) (conceptualizing overbreadth doctrine as facial challenge that incorporates the

Court’s methodologies for assessing content-based regulation of

speech).

3

and contingencies” raised through state action—including deterred or “chilled” speech—may be intolerable to free speech. Dombrowski v. Pfister, 380 U.S. 479,

486 (1965). Citizens uncertain whether some form of

expression is legal may choose simply to abstain from

protected speech rather than test a speech-restrictive

law on a case-by-case basis. Id. Thus, overbreadth doctrine ensures that laws that affect freedom of speech

do not “lend themselves too readily to denial” of that

right. Id.

Criminal laws governing harassment and abuse

are undoubtedly important—to journalists and members of the news media as much as to every other segment of the population.3 But, if imprecisely drafted,

statutes designed to address legitimately harassing or

abusive online or electronic speech can sweep far too

broadly, and could be read to criminalize aspects of

both newsgathering and news reporting.4 Accordingly,

whether Texas Penal Code § 42.07(a)(7) is overbroad or

3

See, e.g., Margaret Sullivan, Online Harassment of Female

Journalists is Real, and it’s Increasingly Hard to Endure, Washington Post (Mar. 14, 2021), https://perma.cc/24R2-9B3H; Michelle

Ferrier, Attacks and Harassment: The Impact on Female Journalists and their Reporting, International Women’s Media Foundation and Troll-Busters.com (2018) https://perma.cc/4N6U-NDA3.

4

See generally Erin Coyle & Eric Robinson, Chilling Journalism: Can Newsgathering be Harassment or Stalking?, 22

Comm L. Pol’y 65 (2017); see also Note, The First Amendment

Overbreadth Doctrine, 83 Harvard L. Rev. 844, 844 (1970) (“Precision in the drafting of statutory provisions to avoid applications

which conflict with the first amendment is no doubt a goal to

which all conscientious legislators would subscribe. It is, however,

a goal that often is not achieved.”).

4

not, the Texas Court of Criminal Appeals’ failure to analyze the law as implicating the First Amendment at

all leaves journalists and media organizations without

guidance as to whether their electronic communications put them at risk of prosecution. At the very least,

the court should have conducted an overbreadth analysis.

---------------------------------♦---------------------------------

ARGUMENT

I.

Application of the substantial overbreadth

doctrine is required, in part, because, as

construed, § 42.07(a)(7) can be applied to

prosecute newsgathering and publishing.

In interpreting § 42.07(a)(7) of the Texas harassment statute, the Texas court construed the term

“sends . . . electronic communication” to mean

“sen[ding] . . . data of any nature.” Pet. App. 59a. As

this construction encompasses “traditional categories

of communication,” such as “writing,” “image,” and

“sound,” it follows that “the statute is equally violated

by the repeated sending of electronic speech as it is by

the repeated sending of communications containing no

speech at all.” Id.

But, after settling on this construction, the Texas

court failed to apply the correct form of constitutional

scrutiny. Specifically, the court’s construction is irreconcilable with its conclusion that § 42.07(a)(7) “does

not implicate the protections of the First Amendment.”

Pet. App. 14a, 60a. Because the statute imposes a

5

content-based restriction on protected speech—for instance, electronic communications that are “annoy[ing],” “alarm[ing],” or “offen[sive]” and thus fall

far short of a “true threat”5—it clearly implicates the

First Amendment and should have been subject to

overbreadth analysis. United States v. Stevens, 559

U.S. 460, 472 (2010).

The Texas court incorrectly elided the legal analysis required for a provision given the above construction with that required for a provision construed to

“regulate[ ] non-speech conduct, even if that conduct

included the use of words.” Pet. App. 45a.6 This analytical error—ignoring the difference between (i) nonspeech conduct that involves the use of words and (ii)

the repeated sending of data of any nature, whether

electronic speech or no speech at all—is demonstrated

below through a discussion of the technology underlying modern journalistic tradecraft and publishing.

Instead, given its construction of § 42.07(a)(7), the

Texas court was required to proceed with an analysis

of whether “a substantial number of its applications

are unconstitutional, judged in relation to the statute’s

5

“ ‘True threats’ encompass those statements where the

speaker means to communicate a serious expression of an intent

to commit an act of unlawful violence to a particular individual.”

Virginia v. Black, 538 U.S. 343, 359 (2003).

6

See also Pet. App. 8a (explaining that the Texas court had

earlier construed the phone harassment provision such that “persons whose conduct violates [the phone provision] will not have

an intent to engage in the legitimate communication of ideas,

opinions or information”).

6

plainly legitimate sweep.” U.S. v. Stevens, 559 U.S. 460

(2010). Here, the potential chill to journalists and news

publishers, among other speakers, necessitates, at the

least, an overbreadth analysis.

A. The Texas court’s construction of

“electronic communication” encompasses online publishing, broadcasting,

and some newsgathering practices.

Every day—every second—news organizations engage in the “transfer of signs, signals, writing, images,

sounds, data, or intelligence . . . transmitted in whole

or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system.” Texas Penal Code

§ 42.07(b)(1).7 When a journalist writes a story on his

or her laptop, that device translates the letters on the

keyboard into corresponding code comprised of bits—

stores of information represented through positive or

negative voltage.8 That information travels electronically via an oscillating signal called a carrier wave

from point A (which employs a modulator to convey the

bits to be transferred) to Point B (which employs a demodulator to receive it).9 This digital (i.e., bit-based)

transfer relies on the same principles as that of

7

Cf. Elisha Shearer, More than Eight-in-Ten Americans Get

Their News from Digital Devices, Pew Research (Jan. 12, 2021),

https://perma.cc/QVV6-EVVX.

8

Douglas E. Comer, The Internet Book: Everything You

Need to Know About Computer Networking and How the Internet

Works 48 (2019).

9

Id. at 47.

7

broadcast television and radio stations, though the encoded information in those media is audio or video, not

binary code.10

Almost as frequently, journalists engage in the

same type of “electronic communication” as they

gather news, including “communication initiated by

electronic mail [or] instant message, [or] network call.”

Texas Penal Code § 42.07(b)(1). “Web based communication technologies including email, GPS, encrypted

cyber forums, video conferencing platforms such as

Skype, Zoom, and Microsoft Teams have become extremely useful, if not vital, for journalistic investigations.”11

This is the reality of modern news publishing and

newsgathering—activities recognized as quintessential protected speech. “There is practically universal

agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.” Mills v. State of Ala., 384 U.S. 214, 218

(1966). The speech-based tools of journalism that allow

news to be responsibly published—questioning a subject of reporting, seeking comment from the target of

critical coverage, reaching out to potential sources to

add context, interviewing a subject-matter expert—are

protected as well; this is important because “without

some protection for seeking out the news, freedom of

10

Id. at 46–47.

Amanda Gearing, Disrupting Investigative Journalism:

Moment of Death or Dramatic Rebirth? 76 (2021).

11

8

the press could be eviscerated.” See Branzburg v.

Hayes, 408 U.S. 665, 681 (1972).

Yet, despite its own construction, which recognized

that the Texas statute could be violated by this type of

communicative speech, the Texas court’s analysis focused solely on “electronic communication” that did not

contain expressive content. The court identified examples that, taken alone, were not expressive; and could

be both likely to and intended to evoke the emotional

states identified in § 42.07(a)(7). For instance, the

court posited that “a person intending to harass another could violate the statute by sending several emails containing only the letter ‘B’ (arguably a ‘writing’) or e-mails containing nothing,” Pet. App. 59a–60a,

to demonstrate its point that not all violations of the

statute implicate protected speech.

Even if true, that point is not decisive. While

“[t]here are few restrictions on action which could not

be clothed by ingenious argument in the garb of decreased data flow,” Zemel v. Rusk, 381 U.S. 1, 16–17

(1965), the Texas court’s decision instead proves a corollary: There are few restrictions on the freedom of

speech through media (as opposed to the unmediated

spoken word) which cannot be costumed as regulation

of non-expressive conduct. Indeed, because sending

“data of any nature” encompasses nearly the entire

writing, publishing, and distributive functions of present-day mass media, a factfinder cannot possibly

judge whether a defendant violates § 42.07(a)(7), as

construed, without looking at the content of the “data”

in question.

9

This differs analytically from a statute construed

to include only “non-speech conduct, even if that conduct included the use of words.” Pet. App. 45a. Indeed,

Texas factfinders could readily distinguish between a

reporter who pays his taxes and one who does not by

looking at the reporter’s paystubs and tax filings,

without reading what that reporter has written about

the Texas Comptroller. See Rumsfeld v. Forum for Accad. & Institutional Rights, 547 U.S. 47, 66 (2006)

(“FAIR”).12 The same is true for a print newspaper delivered in a criminal manner—intentionally or recklessly thrown through a window, for example. A

factfinder need not see the contents of the paper to discern the intent of the delivery person and the damage

suffered by the homeowner. See Texas Penal Code

§ 28.04.13 Perhaps a factfinder may even be able to

judge whether a defendant has violated the telephone

harassment statute, as construed in Scott v. State, 322

S.W.3d 662, 668–70 (Tex. Crim. App. 2010), by looking

solely at the manner in which the defendant makes

12

As the Court noted in FAIR, “[i]f an individual intends to

express his disapproval of the Internal Revenue Service by refusing to pay his income taxes, we would [not] have to apply O’Brien

to determine whether the Tax Code violates the First Amendment.” Id.

13

But see Houston Chron. Pub. Co. v. City of Houston, 620

S.W.2d 833, 833, 838–39 (Tex. Civ. App. 1981) (enjoining contentneutral ordinance “banning sales of newspapers to occupants of

motor vehicles while such vehicles were on public streets or public

property” as, inter alia, unreasonable time, place, and manner restriction).

10

the calls and the defendant’s intent in doing so. See

Pet. App. 8a, 45a.

The factfinder cannot distinguish, however, between an electronic communication sent in a manner

likely to and intended to annoy, alarm, or embarrass,

and one that is not, without looking at the content of

that communication. As such, the Texas court was not

permitted to forgo an overbreadth analysis. The First

Amendment manifestly applies; the question is

whether it dooms the statute.

B. An overbreadth analysis of § 42.07(a)(7)

is needed because the statute chills

speech by introducing avenues for

state retaliation against publishers

and newsgatherers, among others.

The need for an overbreadth analysis is established—not overcome—by the Texas law’s proscription

of repeated “electronic communications [sent] in a

manner reasonably likely to annoy, alarm, . . . embarrass or offend,” and its inclusion of “annoy, alarm, . . .

or embarrass” in the intent provision. The application

of these provisions to journalistic speech would require

factfinders to ask what emotional impact this speech

(likely) has upon the subjects of reporting or newsgathering, and what impact was intended by the journalists, without constraining that inquiry to whether

those journalists have engaged in unprotected

11

speech.14 This content-based restriction will inevitably

deter newsgathering and publishing.

Publishers who “embarrass” the subjects of their

work have faced state retaliation under similar electronic harassment statutes. For instance, in 2011, “an

anonymous cartoonist who went by the name MrFuddlesticks created a set of Internet video cartoons parodying the Renton, Washington police department.”

Eugene Volokh, One-to-One Speech vs. One-to-Many

Speech, Criminal Harassment Law, and “Cyberstalking,” 107 Nw. Univ. L. Rev. 731, 734 (2013). The city

prosecutor obtained a search warrant aimed at figuring out the cartoonist’s identity on the grounds that

the cartoon might violate Washington’s law which then

criminalized electronic communications made “with

intent to harass, intimidate, torment or embarrass”

and “[u]sing any lewd, lascivious, indecent, or obscene

words, images, or language.” Id.; Wash. Rev. Code Ann.

§ 9.61.260 (West 2010).

Further, reporting and opinion journalism of a

critical nature may generally be reasonably likely to

embarrass or annoy the subject of such reporting, or to

alarm or offend the subject or other readers. In Georgia, for example, a reporter writing a critical article

about a candidate for public office was charged with

14

This is comprised of the “historic and traditional categories

long familiar to the bar” including obscenity, defamation of private individuals, fraud, incitement, and speech integral to criminal conduct. See United States v. Stevens, 559 U.S. 460, 468 (2010)

(quoting Simon & Schuster, Inc. v. Members of N.Y. State Crime

Victims Bd., 502 U.S. 105, 127 (1991) (Kennedy, J., concurring)).

12

violation of a state law that criminalized repeatedly

contacting a person “for the purpose of harassing, molesting, threatening, or intimidating such person.”

Coyle & Robinson, supra, at 83–84 & nn. 123–129, accord Owens v. Chidi, No. 14-cv-9730-6, at *3 (Ga. Super.

Oct. 17, 2014). The reporter had reached out to the candidate for comment, calling and sending a text message that read, “[i]f you would like to discuss the

contents of my Peach Pundit piece before publication,

I’m at [email address].” Id.

Likewise, newsgathering can involve methods of

outreach that may be intended to alarm members of a

community into supplying information about a person

who is reasonably likely to be annoyed, alarmed, embarrassed, or offended by the request for information.

Frequently, for example, newsgathering involves the

need to identify certain individuals involved in events

of public note. Journalists use a mix of methods to

identify such individuals, including express calls for

members of the public to name individuals depicted

in photos or video of events. See, e.g., USA TODAY

Staff, Help USA TODAY Tell the Story of Who Stormed

the US Capitol, USA TODAY (Jan. 7, 2021),

https://perma.cc/4SPD-5HQ8.

A subset of this newsgathering, “[t]he publication

of truthful personal information about police officers,

is linked to the issue of police accountability.” See Brayshaw v. City of Tallahassee, 709 F. Supp. 2d 1244, 1249

(N.D. Fla. 2010). But a New Jersey case demonstrates

how the Texas law may deter that type of newsgathering by opening avenues for retaliation. In Alfaro v.

13

Rempusheski, a civil plaintiff alleged that the defendant police officer had violated his First Amendment

rights through the pretense of effectuating an arrest

under New Jersey’s cyber-harassment statute. No. CV

21-02271, 2021 WL 5995758 (D.N.J. Dec. 10, 2021).15

The arrest followed the plaintiff attending a rally, posting a picture of the police officer, and including the caption “if anyone knows who this bitch is throw his info

under this tweet.” Id. While the plaintiff in that instance sought information more coarsely than would a

beat reporter, the public accountability objective, intent, electronic medium of expression, and emotional

impact on the person whose identity is sought would

be the same.

II.

The substantial overbreadth doctrine provides clarity to journalists and other speakers while balancing competing interests.

For laws that burden protected speech but that

have some “legitimate sweep,” Stevens, 559 U.S. at 472,

the substantial overbreadth doctrine is a prudent tool

that provides clarity to journalists and other speakers,

balances competing interests, and accounts for the cost

of overturning legislation. In addition to the state high

15

Under that law, a “person commits the crime of cyber-harassment if, while making a communication in an online capacity

via any electronic device or through a social networking site and

with the purpose to harass another, the person” “knowingly sends

. . . any lewd, indecent, or obscene material to or about a person

with the intent to emotionally harm a reasonable person or place

a reasonable person in fear of physical or emotional harm to his

person.” N.J.S.A. § 2C:33-4.1(a)(2).

14

court and federal appellate cases discussed by Petitioner, Pet. 31–32, amicus curiae offer several additional cases that illustrate the application of this

doctrine by lower courts where a failure to do otherwise might have chilled journalistic speech.

In State v. Mireles, a Washington court reviewed a

cyberstalking statute that criminalized making an

electronic communication “with intent to harass, intimidate, torment, or embarrass any other person.” 482

P.3d 942, 948 (2021). The Court found that the “statute’s criminalization of speech made with the intent to

‘embarrass’ swe[pt] a substantial amount of protected

speech within reach of the statute.” Id. at 950. The

Court applied a limiting construction, striking the

term “embarrass” from the statute. Id. at 951.

In Fitts v. Kolb, two plaintiffs sought a declaratory

judgment that South Carolina’s criminal libel law was

unconstitutional after they were arrested for statements made in their published work. 779 F. Supp. 1502

(D.S.C. 1991). “Fitts, the president of The Voice, a

weekly newspaper in Kingstree, South Carolina,” criticized two state legislators as “black traitors” who participated in “corrupt dealings.” Id. at 1505. Wilder, a

writer for The Banner, a newspaper in Orangeburg,

South Carolina, published an article in which he “reported that [a] Mr. Still had been charged with a criminal act,” though, because Wilder’s article was based on

an incorrect police report, “in fact, he had not.” Id. at

1506. The South Carolina court found the libel law to

be facially overbroad because it “lack[ed] the high degree of protection afforded free expression by the

15

‘actual malice’ standard.” Id. at 1515. Though the statute referenced malicious intent, this was not deemed

to be synonymous with the requisite actual malice. Id.

And in a case involving an overbreadth challenge

to an Idaho statute that restricted speech related to

various types of audio and visual reporting on the agriculture industry, the substantial overbreadth doctrine was utilized to determine whether the

restrictions would impermissibly chill journalists’

speech. Animal Legal Def. Fund v. Wasden, 878 F.3d

1184, 1195 (9th Cir. 2018).

In this way, the Court’s overbreadth doctrine provides a balanced method for judicial examination of

speech-restrictive statutes. While the doctrine accounts for the “substantial social costs” of preventing

the application of a law that may apply in some circumstances to unprotected speech or truly unexpressive conduct, see Virginia v. Hicks, 539 U.S. 113, 119

(2003), it also recognizes that even a statute with a

“plainly legitimate sweep” may be impermissible if a

substantial number its applications are unconstitutional, see Stevens, 559 U.S. at 472. In such cases, the

overbreadth test ensures that laws that affect freedom

of speech do not “lend themselves too readily to denial”

of that right. Dombrowski, 380 U.S. at 486.

---------------------------------♦---------------------------------

16

CONCLUSION

For the foregoing reasons, amicus curiae respectfully urge that this court to grant Petitioners’ writ of

certiorari.

Respectfully submitted,

LIN WEEKS

Counsel of Record

GABRIEL ROTTMAN

IAN KALISH

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

FIRST AMENDMENT CLINIC16

1156 15th Street NW

Washington, DC 20005

(202) 800-3533

lin.weeks@law.virginia.edu

Counsel for Amicus Curiae

Dated: December 8, 2022

16

This brief does not purport to represent the institutional

views of the University of Virginia School of Law, if any.