Perry, Ex Parte James Richard "Rick", PD-1067-15

Background

This is the State Prosecuting Attorney’s response to Rick Perry’s brief challenging Texas Penal Code §36.03(a)(1) (incorporating §1.07(a)(9)(F)) on First Amendment overbreadth grounds.
The statute criminalizes the use of a threat by a person to take or withhold action as a public servant to influence a public servant’s performance of a duty (coercion of a public servant).
Appellant argues the statute is content‑based, thus presumptively invalid, and overbroad because it could criminalize protected coercive speech (citing Claiborne, Keefe, and Watts).
The State contends the overbreadth doctrine is being confused with a facial‑invalidity test; overbreadth focuses on the realistic likelihood that the statute criminalizes a substantial amount of protected speech.
The State argues the statute targets proscribable conduct (threats used as a means to influence official action), is viewpoint neutral, and therefore is not substantially overbroad; hypotheticals posed by appellant lack evidence of real prosecutions and so do not show a realistic chilling effect.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §36.03(a)(1) is facially overbroad under the First Amendment	The statute is content‑based and criminalizes protected coercive speech; thus it is substantially overbroad	Overbreadth requires showing the statute realistically reaches a substantial amount of protected speech; the statute targets proscribable threats and is viewpoint neutral	Court of appeals found overbreadth; State urges reversal (State’s brief argues statute is not overbroad)
Whether content‑based analysis governs the overbreadth inquiry	Appellant: content‑based triggers strict scrutiny and narrow tailoring analysis	State: overbreadth analysis is a separate balancing of protected vs. unprotected expression; content‑based label is not dispositive for proscribable categories	State urges that content‑based label does not automatically make statute overbroad when it targets proscribable speech
Whether coercive statements here are "true threats" or otherwise proscribable	Appellant: some hypotheticals would be protected and not true threats (cites Watts)	State: statute criminalizes use of a threat as an element to influence official action (not punishing threat alone); Watts is not controlling	State argues statutory element structure and context distinguish this statute from Watts-style free‑speech protection claims
Whether hypotheticals and vagueness require striking the statute	Appellant: hypotheticals show chilling and vagueness problems	State: lack of prosecutions for hypotheticals undermines realistic‑danger argument; vagueness not preserved for review here	State asks remand if overbreadth rejected so lower court can address vagueness; urges reversal on overbreadth

Key Cases Cited

Virginia v. Black, 538 U.S. 343 (2003) (upholding statute banning cross‑burning with intent to intimidate)
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (viewpoint discrimination and limits on content‑based restrictions even within proscribable categories)
United States v. Stevens, 559 U.S. 460 (2010) (recognition of historically proscribable categories but caution against creating new categorical exclusions)
N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982) (protected coercive collective protest and economic pressure)
Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971) (protections for picketing/leafleting aimed at social pressure)
Watts v. United States, 394 U.S. 705 (1969) (political hyperbole and the limits of prosecuting threats)
United States v. Williams, 553 U.S. 285 (2008) (standing and realistic‑danger requirement in overbreadth analysis)
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content‑based regulation triggers strict scrutiny)
New York State Club Ass'n v. City of New York, 487 U.S. 1 (1988) (facial challenges and lack of legitimate sweep)
Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) (facial invalidity and permissible speech restrictions)
Ex parte Lo, 434 S.W.3d 10 (Tex. Crim. App. 2013) (Texas case discussed for overbreadth analysis and burden placement)