EX PARTE Michael Dwain BRADSHAW
2016 Tex. App. LEXIS 9203
| Tex. App. | 2016Background
- Michael D. Bradshaw was indicted under Texas Penal Code § 33.07(a) for using Joel Martin’s name/persona without consent to post messages on an Internet website with intent to harm.
- Bradshaw filed a pretrial habeas application arguing § 33.07(a) is facially unconstitutional (First Amendment overbreadth, vagueness under Due Process, and Dormant Commerce Clause).
- The trial court denied relief without a hearing; Bradshaw appealed to the Fifth Court of Appeals (Dallas).
- The court applied de novo review for facial constitutional challenges to an offense-defining statute and presumed the statute’s validity.
- The statute criminalizes using another’s name/persona without consent to create a web page or post/send messages on commercial social networks or other internet sites, with intent to harm, defraud, intimidate, or threaten.
- The court analyzed whether (1) the statute is overbroad or content-based, (2) unconstitutionally vague, and (3) violative of the Dormant Commerce Clause, and ultimately affirmed the trial court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment — Overbreadth | § 33.07(a) chills substantial protected speech because it reaches uses of names/personas (including satire, impersonation, and expressive conduct). | The statute targets conduct (identity appropriation) and unprotected speech integral to criminal conduct; any effect on protected speech is marginal. | Statute is facially content neutral, subject to intermediate scrutiny, and survives because it targets largely unprotected conduct and is not substantially overbroad. |
| Content-based / Level of Scrutiny | Bradshaw: statute requires examining content to determine violation, so it is content-based and subject to strict scrutiny. | State: statute is content neutral on its face (focuses on using identity and intent, not topic or viewpoint); legislative motive non-content-based. | Court held statute content neutral in form and purpose; intermediate scrutiny applies and is satisfied. |
| Vagueness (Due Process) | The term “harm” is too broad/indeterminate, causing people to guess about prohibited conduct and chilling speech. | Penal code definitions of “harm” and chapter-specific definitions provide fair notice; statute need not be mathematically precise. | Statute is not unconstitutionally vague; definitions give fair notice and do not authorize discriminatory enforcement. |
| Dormant Commerce Clause | § 33.07(a) unduly burdens interstate commerce by regulating Internet users nationwide and projecting Texas law extraterritorially. | Statute is evenhanded, serves significant local interests (preventing fraud, threats, impersonation), and Texas criminal jurisdiction limits extraterritorial reach. | Statute does not discriminate against interstate commerce and imposes only incidental burdens that are not clearly excessive relative to local benefits; no Dormant Commerce Clause violation. |
Key Cases Cited
- United States v. Stevens, 559 U.S. 460 (2010) (overbreadth doctrine and categories of unprotected speech)
- Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218 (2015) (content-based regulation definition)
- Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) (facial First Amendment analysis for statutes defining offenses)
- Peraza v. State, 467 S.W.3d 508 (Tex. Crim. App. 2015) (facial challenges and overbreadth standards)
- Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (presumption of statute validity; standard for facial challenge)
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (narrow tailoring and intermediate scrutiny for content-neutral laws)
- United States v. Williams, 553 U.S. 285 (2008) (limits on overbreadth challenges; cannot invalidate statute on fanciful hypotheticals)
- Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) (Dormant Commerce Clause balancing test)