Ex Parte Tucci

Ex Parte Reverend Keith TUCCI.

Ex Parte Randall TERRY.

Ex Parte Patrick MAHONEY. Wendy Parte

Ex WRIGHT. Flip

Ex Parte BENHAM. Joseph

Ex Parte SLOVENIC. Parte

Ex Bob JEWITT. D-2809, D-2819, D-2820, D-2821,

Nos.

D-2822, D-2823, D-2824.

Supreme Court Texas.

June Gillett, Houston, Roth,

Edward J. Stuart Mobile, AL, Sekulow, Decatur, Jay Alan GA, Henderson, Sr., James M. Mark N. Troobnick, DC, Washington, G. Ste- John Beach, phanovich, VA, Virginia for rela- tors. Owens, Murphy,

Rock W.A. Arthur E. Palermo, Jewell, Edna H. Karen B. Kath- Ellis, Patrick, D. Kathy erine A. Mike Dris- coll, O’Rourke, Smyser, Terence L. Craig Houston, Manne, respondent. Neal S. OPINION DOGGETT, Justice. scope

We consider the state con- our guarantee expres- stitutional freedom Tucci, Keith Joseph sion. Randall Terry, Slovenic, Mahoney, Wright, Patrick Wendy Benham, Flip and Robert Jewitt were con- contempt victed of civil public protests each disregarded provi- which of them temporary sion of a restraining order. As relators, they bring this original habeas corpus proceeding asserting they been confined pro- which under tected article section 8 of the Tex- as Constitution.

2 1824, (1967), 18 1210 to bar

I. S.Ct. L.Ed.2d King, of Dr. Luther Jr. release Martin importance attached to freedom Birmingham jail from the for others jurisprudence of in our state’s disregarding unconstitutional restrictions longstanding in the rule one reflected that upon their civil marches. Citizens imprisoned disregarding for court order challenge restraining speech may pending the un must not “be muffled outcome of through derlying restraint as a habeas injunction, void an proceedings” ... to dissolve proceeding Texas such as this. courts since granted repeatedly habeas relief to ability protected protest to exercise [t]he disregarding release those for an confined at a time when such exercise would be varying unconstitutional restriction protected must as the effective be as parte Henry, Ex types See expression. of a flagrant It is beliefs themselves.... 315, (1948) (peace 147 215 588 Tex. S.W.2d guarantees to denial constitutional Tucker, parte Ex picketing); ful 110 Tex. away in principle balance the name this 335, (1920) (‘‘vilifying, abusing 75 220 S.W. “respect process.” for To judicial parte Ex using opprobrious epithets”); preach “respect” in this context is to McCormick, 457, 129 88 Tex.Crim. S.W.2d deny right speak at all. Foster, (1935) parte Ex (gag order); 104 44 423, (1903) 71 (gag Tex.Crim. S.W. 593 ord 349, (Brennan, 388 at 87 at 1847 U.S. S.Ct. er).1 Ex Parte Hen As we concluded J., dissenting). Nor is Texas alone ry: recognizing unduly restrictive nature punished contempt One cannot be See, e.g., re Ber collateral bar rule. violating an order a court has no which 137, ry, 273, 280, Cal.Rptr. 436 68 Cal.2d 65 authority make. banc); v. 273, (1968) (en Wood 280 P.2d 215 at S.W.2d 597.2 Goodson, 253 196, 213, 485 Ark. S.W.2d Superior State ex. rel. Court (1972); 217 Underlying principle our state law is the Sperry, v. 79 483 P.2d 611 Wash.2d delayed that speech often translates into denied, 404 cert. U.S. speech approach repre- denied.3 Texas Newspapers, (1971); Phoenix L.Ed.2d 252 sents the converse of the federal collateral Court, Superior Inc. rule, Ariz. v. upon Walker bar which was relied City Birmingham, (1966).4 U.S. P.2d Pierce, Conversely, parte challenges may permitted by 1. Ex 342 S.W.2d 424 constitutional denied, (Tex.), exercising jailed cert. 366 U.S. S.Ct. free those (1961), appropriately making L.Ed.2d 388 we denied ha- expression, at while the same time clear determining underlying beas relief after that the appropriate never One that an case will arise. order was constitutional. "may exception apply” that occurs when an or invalid,” "transparently 859 S.W.2d at 65 der is 2. While claiming repudiation that Texas’ (Hecht, J., dissenting), a term the em dissent nothing do collateral bar rule has with af- exception, ploys yet This al refuses define. fording special protection speech, Chief Jus- "may legedly several of the Texas account for exclusively upon Phillips relies tice cases in cases,” though not we are told which permitted this court collateral which review exception apparently pro Id. at 69. This ones. restricting expression. court orders freedom such tects some forms others C.J., (Phillips, concurring). at 37 I by Per demonstration Relators Houston. however, certainly agree, that do this court’s forgetting haps that case involves proceeding a habeas is not review in limited expression, that of free the dissent announces unconstitutionally underlying whether the order we are similar to those "Relators’ circumstances right; infringes upon particular that an order century ago," over in a case described ... a half any grounds unconstitutional not enforce- involving attempted cigarette of a tax. collection by contempt. able Kimberlin, (citing parte Id. Ex 126 Tex. Note, Authority, 3. See (1935)). Defiance Unlawful 86 S.W.2d 717 (1970) (noting Harv.L.Rev. exception seemingly recognized by A second expres- bar rule freedom collateral sion). stifle permit would review in the dissent collateral criminal, civil, involving opposed cases Here, jailed contempt. 4. Relying solely Id. Relators were on the collateral bar rule to case, dissent, they purged contempt until decide this in a series of con themselves tradictions, that, cases, suggests appropriate swearing compliance future with the trial asserting contempt judgment II. they which were incarcerated was based George Fearful former President void, upon temporary unconstitutional re- Republican Party’s Bush would weaken the straining appeals order. After court of opposition to a woman’s constitutional relief, denied this court ordered Relators right to choose to an whether abor- tion, upon released “Operation bond. Relators initiated G.O.P.” express vehemently to their anti-choice during Republican views the 1992 National III. To Convention Houston. attract maxi- support temporary the re attention, mum Relators scheduled their orders, straining it was asserted that clinic

protests family planning at local clinics. posed an demonstrations immediate and ir they their Concerned clients would reparable ability caught threat to the of women to up intra-Republican be the cross- fire, and, clinics, seek by others, counseling these at clinics if de joined ob- sired, temporary restraining tained to pro- orders to obtain abortion-related services Nevertheless, intimidation, violence, clinic tect access. Relators without threats of gave speeches imploring various physical harassment or obstruction. A —one President Bush appoint to additional anti- pregnancy woman’s a to terminate is Wade, judges choice condemning and others abor- protected. Roe v. constitutionally prohibited judicially tions —within a area of 410 U.S. L.Ed.2d (100) “one-hundred feet” from “either side (1973). We have found merit in the reason or in any doorway front of entrance or ing recognizing of this decision our own exit, lot, parking parking lot entrance or independent privacy right of under the Tex exit, driveway, driveway entrance Employees Texas State as Constitution in exit” of a clinic. Union v. Dep’t Texas Mental Health Retardation, and Mental 746 S.W.2d Each Relator was fined $500 commit- see also Dia (Tex.1987) Roe); (citing County jail ted Harris for six months mond Mktg. Shamrock Co. or for a lesser purged time if contempt Ref. Mendez, by paying announcing (Hightower, the fine open J., willingness court a concurring) (emphasizing imperative, to abide restrain- ing sought relief, orders. All seven nature to privacy habeas of the under though sarily places position court’s order. evaluating Even this case involves courts in contempt, dissenting justices timing civil importance speech. nonethe- of the of the then, constitutionality Judges, less refuse to review the would be elevated to censors re- underlying quired order. to content examine the to purported exceptions Yet message these are a determine whether or could mirage, weeks, week, "transparently since years even invalid" or- wait a two a month or until forming ders or appeal prosecuted. unconstitutional ones the basis an If Relators could not contempt appealed prior for civil ruling appealable tempo- must to have obtained a on an require rary injunction subsequent emergency violation. The ap- dissent would an attempt appeal underlying peal convention, day to Republican order restrict- until the second ing speech no matter limited adequately how the time avail- would their (relying able. protected? ruling possible Id. 70 n. 26 on In re Providence What if no were un- Co., (1st Cir.1987) (en very

Journal 820 F.2d day? require til the Would last the dissent banc) (requiring attempt appeal, to even when silence in the meantime? hours)). course, time available truly is a matter of The dis- Of dissent is what the demand- deny ing sent would they exceptions, relief Relators because are not but strict enforcement of rule, by appeal.” "made no effort to seek supposedly review which collateral bar es- S.W.2d at 70. failing are ability Relators thus faulted for sential to the of “trial courts to enforce pursue remedy to not available under orders in volatile situations.” Id. at 69. Our law, however, prohibits appeal Texas today, way which an of a tem- decision in no lessens the porary restraining power order. of a trial court render an order in suggests possible exception The dissent also accord with the Texas constitutional standard appeal through collateral bar when an power rule of an and to enforce that order restricting expression dissent, timely contempt. order Contrary cannot be I cannot see prosecuted. justice But leaving imprisoned determination of how much how is served spent pursuing appeal prior time must be an those found to have violated an order shown to speaking out in violation of court order neces- unconstitutional. Berry one Constitution); Johnson, from this block Amy Abor traffic to or Texas Personhood, Texas, tion, Privacy Additionally, temporary re- Street.” indepen- Tex.L.Rev. 1521 Without unim straining contained four orders paired counseling appropriate access provisions guard against intimi- dent facilities, medical a woman’s constitutional prohibited: harassment that dation and choice guarantee of choice would be no (25) Demonstrating twenty-five within all. any person seeking access to or feet of

Additionally, the clinics and intervenor clinic, lots, parking its leaving the injury businesses5 claimed would result lots, parking businesses or intervenors’ trespasses, access and the from blocked person’s any way impeding such or in patients, staff and custom- intimidation of clinic, park- to or exit from the entrance recognized This has that ers. court “[c]on- businesses; ing or lots protection stitutional of the of free grabbing, intimidat- Physically abusing, assembly not license does ... touching, harassing, pushing, shov- ing, or of entrances ways obstruction of persons entering or ing, crowding or places from of business.” Ex to and exits at, using any leaving, working or servic- Pierce, at 342 S.W.2d 427. Parte es at Planned Parenthood’s above-refer- sup- Uncontroverted evidence offered facility enced or at the intervenors’ busi- restraining port temporary orders of the nesses; posed injury the threat of established that intimidating physically Harassing, or plain- women by Operation G.O.P. to the doctor, profes- any care abusing health the clinics and to tiffs’ of access to member, sional, employee other or staff oper- ability of clinics and businesses provision in the or volunteer who assists and irreparable. ate was both imminent at Planned Parenthood of services facility; and IV. (whether by Making any or noise sound re- temporary The trial court issued two amplifica- loudspeaker, mechanical sound straining containing a orders number otherwise) is so loud tion device or that provisions clearly protecting directed disturbs, endangers the injures, or it against specific injuries alleged any patient or staff safety health or women, Access was clinics and businesses. facility.7 person ... by injunctive relief barred: assured not, contempt how- convictions were on, invading, [tjrespassing physically en- ever, provi- these on violations of based consent, damaging, sitting tering without against specific inju- protect sions drawn in, obstructing blocking, impeding or ac- Rather, relators confinement of was ries. to, egress any ingress cess into or from having disregard- solely on their premised facility Parenthood part the Planned restraining temporary portions ed exits, ..., including entrances and orders that barred: ..., any of the parking lots parking clinic’s or lots’ entrances (100) Demonstrating within one-hundred driveways.6 any either of or in front of feet from side lot, exit, parking doorway entrance or ques- ensure to the facilities To access exit, driveway, or or tion, parking lot entrance judge enjoined “ob- the trial further [any exit any way driveway entrance or structing interfering the] parking lots. pedestrian the entrance or exit of or vehicle clinics[s] to, egress structing ingress Antiques access into or from Brian G. 5. Adkins Architectural D.D.S., adjoining part any buildings, any two businesses Martinez of the clinics’ Street, Berry parking Planned Parenthood Clinic any parking lots clinics’ restraining request or- joined for a the clinic’s driveways.” lots’ entrances and der. provisions included identical were 7.Near Similarly, restraining ap- temporary order 6. applicable the other clinics. order "[tjrespass- plicable to the other clinics barred on, in, sitting blocking, impeding ing or ob- any Relators thus do not of the similarly emphasized [par- attack that “the use of provisions restraining of the orders per language se ticular] [cannot made] challenge only the one-hundred foot offending felony against ... without [this] limitation as unconstitutional. provision Rights.” Bill of parte Ex Meckel, 87 Tex.Crim. 220 S.W. V. reviewing validity particular jurisprudence, In our civil the “constitu orders, one-hundred foot limitation in these guaranty liberty speech” tional must look we first to our Texas Constitu respect, early precluding accorded an in Garcia, Davenport tion. See 834 junction publication to restrain of a libel. (Tex.1992). With its broad Lodge Accepted Mitchell v. Grand Free & “ ‘[e]very person command shall Masons, 306, 121 Tex.Civ.App. S.W. speak opinions ... sub (Dallas 1909, writ). no Our court’s one, ject' article eight pro section ... eight safeguard first use of section greater rights vides than parte Tucker, came in Ex 110 Tex. equivalent.” federal its Id. at “[I]ts (1920), 220 S.W. where habeas language strong demonstrates Texas’ relief was accorded to one held in contempt longstanding speech.” commitment to free injunction by for violating making an “slan at 7. Id. to the epithets telephone derous female Relying upon this fundamental state operators” during a dispute. labor In guarantee, our courts repeatedly have re- refusing enjoin to publication thereafter of jected legislative both judicial attempts article, alleged an libelous the court expression. to restrict The earliest writ- (Tex.Civ. Strange Biggers, v. S.W. 826 ings court, are those of our sister the Tex- App. writ), no declared that — Dallas as Court of Appeals. granting Criminal In necessarily freedom of will end relief dealer, habeas to an arrested news supervision equity when a court of I, that court declared article violative of expressions the and sentiments of the section 8 an Seguin ordinance of City begin. allowed to individual is forbidding particular the sale of Chicago a Feminelli, Pirmantgen See also newspaper: S.W.2d (Tex.App. Corpus Christi power — suppress to one concedes the 1988, writ) (holding no in unconstitutional power suppress to all.... The doctrine junction barring allegedly dissemination of constitution prevail must in this letter). libelous state, which clothes the citizen with liber- ty speak, write, to publish opinion jurisprudence his this Consistent with on subjects. constitution, history of our state this in Davenport court announced that restric- Neill, parte Ex 32 Tex.Crim. 22 S.W. targeted tions must be at the effect of (1893). Foster, In parte Ex expression expression than at rather (1903), Tex.Crim. 71 S.W. 593 the same There, “an irrepara- itself. imminent and guarantee precluded judi- constitutional a judicial process ble harm attempt de- suppress cial publication of [that] tes- prive[s] just timony litigants a murder resolution of trial the editor of dispute” the Houston Chronicle. was determined to be the parte See Ex also McCormick, expression judicial effect of to which a Tex.Crim. In striking Disloyalty order directed. down a could be 834 S.W.2d at 10. adopted during Act Second, emphasized World the court War the need we to ensure Const, 8, provides 8. Tex. art. public capacity, pub- in full that: or when the matter information, Every person liberty proper for shall be lished is publish opinions any subject, write being responsible given his on truth thereof in evidence. And privi- libels, that the abuse of jury all indictments shall have lege; passed and no law shall ever be curtail- facts, determine the law and the ing press. or of the In court, under the direction of the as in other prosecutions publication papers, for the cases. officers, investigating the conduct of or men Q such restriction “represents the Id. at Unless any limitation least means proved to the least restrictive prevent restrictive means harm[ful irreparable and immi- guarding against an Id. effect.]” impermissible infringe- an injury, it is nent standard controls here. That same right of constitutional on our state ment not be restrict Freedom of expression. While the one-hundred solely grounds that its exercise will ed on here, simply by the mere limitation foot producing imminent and the effect of gener- distance, might have had fact may be im irreparable harm. Restraints clinic access and preserving al effect granted posed only injunctive relief if customers protecting patients, staff encompasses the least restrictive means harassment, it against was intimidation alleged harmful ef

protecting against hearing that the trial court proved resolving the al whether fect. both restrictive large was the least zone irreparable imminent and leged effect was injuries. guarding against these means relief temporary injunctive and whether Parenthood Although map of the Planned granted hearing was the least restrictive here to at the facility was referred harm, prevent we look orders, means it was not admitted restraining clinics, asserted, requested, and no injury the relief As to the other evidence. into regarding their loca- offered underlying evidence. evidence was recog- It physical facilities.

tion and hearing wide- at the that these varied nized IV. buildings heavily free-standing ly, from large Encompassed within this smaller facilities city streets to travelled of the clin “speech-free” zone around each high-rise offices. property and the area just clinic ics was not foot one-hundred opposing the Those exits immediately in front of entrances and court argued to the trial speech free zone lots, parking of the clinics and their to circum- not tailored the it was that This and sidewalks as well. streets Rather clinic. of each individual stances closing to pro the effect of restriction had a justifying offering specific evidence than during Republican the Convention testors clinic, those each particular distance for Planned city on which the the entire block a re- urged uniform seeking the restraint located, displac clinic was Parenthood convenience.” striction “administrative several of Houston's busi ing them across noted, argu- “the As court has our sister The one-hundred foot limita est streets. weight have no as of can ment convenience during protests this similarly barred tion safeguards of constitu- against the those public streets and sidewalks critical time on by our fathers tion which were intended the clinics. near other of and liberties preservation the the McCormick, 88 speech-free parte Ex foot zone of the citizen.” The one-hundred that the it shown restraining or- at 107. Nor was provision temporary the temporary restrain- striking provisions to here a resemblance der bears inadequate protection. ing provided prohibiting orders Henry in Ex that at issue Parte fact, seeking injunctive relief In the “on, across, parties picketing strikers from agreement as to ne- not even were railroad 100 feet near or within limitation; one-hundred foot cessity of the transport freight into being used tracks” thirty- maintained that the State Texas plant. 215 S.W.2d at 590. employer’s their protect against adequate to zone was foot injunction, con- voiding this court injury. any threatened cluded that physically impact of long pickets potential did not harmful So as Given thereby spur nul- on the fundamen- tracks and Relator’s demonstrations obstruct right privacy of women seriously impair right lify or tal constitutional clinics, street, her decision railways they desiring had the access to these to use the is understanda- grant emergency relief the streets right same use However, re- our constitution state railways ble. had. required quires stringent prefer- that we enforce standard have under the Texas its we even for ence for freedom of Constitution. those who advocate interference with other requirement means en A least restrictive specific rights. constitutional Without that, variety are sures of methods when findings supported by evidence harm, prevent our constitution available to speech-free zone the least 100-foot approach the use of that which commands unimpeded means ac- restrictive to ensure is least intrusive to individual liberties. guard clinics intimi- against cess to Virginia Supreme Court has simi West harassment, dation we hold this larly recognized that its “state constitution restraining orders violates limitation provisions certainly al would I, section 8 of the Texas Constitu- article of a “less compel” the use restrictive alter tion. analysis. Virginia natives” West Citizens Throughout nation, peaceful anti- Group, Daley, Inc. v. Action W.Va. picketing given way to in- abortion has 324 S.E.2d Nor does creasing violence, incidents of vandalism requirement significantly differ from trespass, blockading as well as of clinic interpretation appropriate of the mean denying women entrances ing “narrowly tailored” under the better reproductive services, including health seek jurisprudence. See, e.g., reasoned federal injunctive abortions.9 Effective relief is 80’s, City Pocatello, Inc. v. Project protect against available these harms. (9th Cir.1989); Pursley F.2d 711 City v. pro- well There be situations in which Cir.1987); (8th Fayetteville, 820 F.2d 951 hibiting demonstration a limited within City v. Illinois Wateska Public Action protecting area is essential to a woman’s (7th Council, Cir.1986), F.2d 1547 aff'd choose whether to an abor- mem., 919, 93 U.S. Here, though, tion.10 record limited (1987); L.Ed.2d 972 Co Wisconsin Action the trial judge hearings

before Kenosha, City alition 767 F.2d 1248 temporary restraining sup- not orders did (7th Cir.1985); Community Association of port speech. a one-hundred foot ban on Org. Now v. City Fronte Reform saying We should understood as (8th nac, Cir.1983). 714 F.2d not, judge could following trial more com- eventual, repudiation of unfortunate plete evidentiary hearing permanent in- by standard protective this the United junction, impose restrictions around the clinics, Supreme States Court v. Rock using geo- Houston either Ward a limited Racism, 781, 798-99, Against 491 U.S. 109 graphical activity restricting ban on or 2746, 2757-58, (1989), protestors. 105 number S.Ct. L.Ed.2d 661 Every such restric- must, however, By justified by proper justifiably tion has met with criticism.11 evidentiary showing requiring that merely that such measures now the means cho- preserve “promotes government are essential of clinic sen a substantial access, and fully that each satisfies interest that would be achieved less effec- See, Grimes, clinic); e.g., Jacqueline David rectangular 9. A. D. For zone foot in front of rest, Radford, L. York, Alice Kirkman & Barbara An Dept. Thompson Police 145 v. New of 945, Epidemic Antiabortion Violencein United (N.Y.Sup. Misc.2d 546 N.Y.S.2d 947 States, Gynecology 165 Am.J. of Obstetrics and (8 1989) by 15 foot zone in front of clinic (1991); Bray v. Alexandria Women’sHealth entrance). — Clinic, -, -, U.S. n. & (1993) & S.Ct. 780-81 n. L.Ed.2d 11.See, Blechner, e.g., A. Paul First Amendment: J., (Stevens, dissenting) (detailing incidents of Rejection Supreme Court Least Restrictive violence, blockading Opera vandalism and Test, Alternative 1990 Ann.Surv.Am.L. 331 Rescue). tion (1991); Lippetz, Gregory Day L. the Music Racism, Against Rock Died: Ward v. U.S.F. Although 10. not reviewed state con under our (1991); Carney Sherigan, Sign R. standard, L.Rev. 627 A encompassing prohibitions stitutional Supreme The United the Times: States Court upheld more limited areas have been elsewhere Effectively Narrowly Re- assuring Abolishes Tailored as a means of See Port clinic access. Time, quirement Place land Feminist Women’s Advocates and Manner Restric- Health Ctr. v. Life, (9th Cir.1988) (12- tions, 859 F.2d Loyola L.A. L.Rev. 453 ” despite otherwise, curring today's judgment, at

tively id. at 109 S.Ct. contrary, that toler- Justice Gon- (emphasis supplied), protestations Court do, Phillips14 ates adverse effects rather substantial Justice zalez and Chief speech pur- if masked as directed to some fact, lesser intrusive means evaluate This ported goal suppression. other than determining harm whether preventing lesser standard dilutes constitutional up- speech-free zone the 100-foot there speech protections and assures that note, Both as do the other less held. “trampl[ing] will on the of oth- the trial court’s provisions restrictive express unpopular ers” 12: those who appear designed to temporary order which views. right of access.15 It is protect the clinic however, just employ protecting preferable, not alternative methods of Unless considered, here, against analysis cannot means harm are courts least restrictive means are clearly whether the selected element evaluate reaffirm it an essential narrowly objective. id. directed to that See more jurisprudence. our This ensures J., (Marshall, 109 S.Ct. at that judicial consideration cannot consistent by the commen- dissenting). explained As personal ap- depending judge’s on a waver relies, Gonzalez upon tator whom Justice message proval disapproval J., (Gonzalez, concur- S.W.2d 59-60 has been restricted. ring), less restrictive alter- consideration of Today our court continues favor deciding natives "is relevant to whether growth and enhancement of freedom oppor- government left too little has fact vigorous de- constraint. The fact that its tunity activity, for communicative whether society may issues in our bate listeners.” Laurence speakers or of- produce considered obnoxious Tribe, Law H. American Constitutional cost necessary is a of that fensive some 1988). (2d ed. calls Constitution freedom.16 Our provide speech protection To the full expres- commitment to to maintain a court guaranteed eval- by article section our strong uncompromising for sion must wheth- uation of restrictions consider friend and foe alike. er harm consti- preventing the method discharged. remain Accordingly, In con- Relators tutes the least restrictive means.13 J., (Gonzalez, "di- as "indirect” rather than concur- sion rect,” 12. See 859 at 62 J., (Gonzalez, at 59-60 concur- ring). 859 S.W.2d ban, ring), partial a "total” rather than C.J., concurring), (Phillips, or as a mere id. at 27 upon authority Gon which Justice "prior “place” a true re- restriction rather than requiring proof compet zalez relies for areas, foot a "di- straint.” Id. Within the 100 Bering ing truly compelling, interest imposed to "restrain” rect" and "total” ban was SHARE, (1986), 721 P.2d 918 Wash.2d “prior" Chief Justice to its exercise. dismissed, cert. 479 U.S. distinguishing provides Phillips be- no basis for (1987), a result in fact reaches L.Ed.2d speech zone we consid- free tween 100-foot There, opposite today. endorses one he restriction, op- today simply place a er geo Washington upheld Supreme Court a limitation, posed or one set at the to a 500-foot graphical speech the one we ban similar to encompassed Seguin feet within number of city consider, though specific provi more even (conceding at 27 in 1893. See id. limits designed protect injunction were to sions of the latter, Neill, Ex 32 Tex.Crim. at issue in Parte J., (Anderson, See P.2d at 918 clinic access. restraint"). (1893), “prior is a S.W. 923 dissenting part). appropriately inquiry focused is more Judicial labelled, restriction, however on whether the lengthy writing has so little 14. Since most his solely effects of directed to harmful today’s do and so much to to do with decision objective proper its accom- and whether fretting Davenport, Chief Justice with his over plished least restrictive manner. in the appen- Phillips’ addressed in an concurrence is dix. Holmes, genuine Justice free 16.In the words of requires thought expression "not free dom today's concurring justices join agree those with us but freedom for While who judgment, they thought do that is direct- hate.” United States v. Schwim so in manner that we mer, by analysis. They labels resolve 279 U.S. ed more than J., (Holmes, (1929) dissenting). presented by classifying suppres- L.Ed. 889 the issue Concurring opinion by PHILLIPS, C.J., the outset of this history, state’s “[f]rom joined by CORNYN, J. expression priority.” freedom of was a id. at-(quoting Davenport, 834 S.W.2d at

Concurring opinion by GONZALEZ, J. 7), and that Dissenting opinion HECHT, by J., joined unresponsive- authoritarianism and ENOCH, J. attempts ness of Mexico to to [certain] protection exercise and establish of free APPENDIX I contributing were a factor to Tex- independence. as’ revolution and Response to Concurrence of Id. Phillips Chief Justice Refusing acknowledge early to com-

Today at least five members of this mitment of Texans to freedom embodied in Court continue to subscribe to the broad Proposed their Constitution for the State of conception of individual liberty guaranteed (1833), id., Texas Phillips see Chief Justice under our state constitution and embodied disregards experiences shaped in Davenport Garcia, (Tex. including concerns appropriation Mexican orig. proceeding). requiring While printing presses brought Texas,17 paragraphs mere nine explain his own printer’s mandated oath “not to disturb the agreeing rationale for judgment with the peace,”18 instructions the Commandant today, entered Chief Phillips Justice writes “prevent at Bexar to the enemies of order length guarantee about a of the Texas circulating reports” from attempted Constitution that he then ignore chooses to military censorship newspaper comment completely, since personally he is unable noisy questions” “odious and about the “to articulate its meaning with confidence.” governmental conduct of affairs.20 Instead, 859 S.W.2d at 33. prefers he resolve solely this case on federal constitu Indeed, our Texas Declaration of Inde- grounds tional which are “more familiar” pendence emphasizing that the Mexican to him. Id. government had removed “even the sem- freedom,” blance of Rejecting complained views of plurality both this citizenry in the Justice Gonzalez form of regarding import “petitions Davenport remonstrances” had not case, for the instant his ex- disregarded been pansive spokesmen writing but that like addresses issues that even Stephen F. Austin he had been “thrown folly concedes “would into attempt dungeons.” Austin, himself, previous- had resolve here.” Id. at 16 n. 1. His search ly called for “an “astonishing guarantee inviolable errors” in Davenport, id. 28, is, itself, speech.”21 He contended that rather astonishing. In his zeal to dissent from each every under- A press battery, pen was the and ink pinning decision, of that Chief Justice Phil- arms, the small principles and sound lips goes to the questioning extreme of balls and shells with which well dissemi- support for the court’s observations that nated and public opinion united [could] 17. See Barker, Eugene C. Early (John Jenkins, 1973), Notes on Texas Revolution 50 ed. 1819-1836, Newspapers Sw.Hist.Q. early journalists which appropriately these ex- pressed outrage, indicating writing that their questions’ indispensable about "'odious [was] 18. Id. at (describing printers’ oath). calling [for] attention of the Government” noting eagerness people and of the for a 19. Letter response to the Domingo "remonstrance Ugartechea [that] from Colonel had been de made to the Principal [Commandant at Government." See Letter Bexar] to the from the Com- mandancy Texas, Editors of Coahuila of Mercurio de July Matamoros to General dated Cos, Papers Martin of the Perfecto de Texas Revolution Commandant General (John Jenkins, 1973). States, April ed. of the Eastern Internal dated id. 66. 20. Letter from General Martin Perfecto de Cos

to the Barker, Editors of Eugene the Mercurio de Matamoros 21.See Stephen C. The Life of F. 31, 1835, Papers dated March (2d 1949). of the Texas Austin 72 ed. Phillips will have none

But Justice Chief nothing unique There about of this. is privilege and beat down aristocratic Texas, histor- In defiance of the he insists. abuse.22 record, simply he there ical insists that unavailing, proved When such efforts by of the repetition the Texans insufficient “exhort[ing] every citi- as a basis asserting con- revolutionary era in possible” so that zen to march soon liberty and an interest cerns about claims despots military freed from be- Texas “be subject must confined to one in this vital closed,” also, a it is he as Chairman of fore man, Austin, long Stephen revered as F. in a Safety, of Circular Committee protested govern- public that the Mexican of S.W.2d at 30. the father Texas. 859 influ- “suppressed, military ment had history justifies Any analysis of our fair ence, public opinion.”23 the expression of reading Davenport; of it in the desire our is, course, hardly ignored expression in to- of limit- history This for freedom of writing in prior court’s day’s attack on the to one man or one document. So devoid ed “full, clear, call a Davenport, as Phil- support historical is Chief Justice of rights” of in the comprehensive bill cite whose lips that he must to an article Independence, made of earlier Declaration opinion and very contradicts his title 20,1835.24 This call Goliad on December at speaks special about this state— to what is shortly thereafter in 1836 was answered Republic Rampant Individualism in of adoption of Declaration with fact, study heralds In that Texas.25 Republic of the Rights the Constitution widespread passion for freedom expression a of Texas. It is the freedom of guarantee 4 of this Declaration Matagor- of Section of the speech, which the motto Davenport referred to which the court exemplified: further da Colorado Herald concluding that know, utter, to and to “Give me governmen- Rather than restriction on freely, argue above all liberties."26 that interference such as tal with denigrate the work of the prefers He provided by the First Amendment that same era on Texas drafters of Constitution, Texans chose United States grounds they must have con- unusual beginning from the to assure the liber- experience of oth- the constitutional struggling sidered they ties for were which specific guarantee language they of an affirmative strong ers and because speak. enthusi- in 1836 did not attract chose later.27 century asm of one historian 834 S.W.2d at 7-8. early Texans "were iras- Because these 22. Id. at 342. "enjoyed fighting" sparked often cible” and safety Circular from Committee 23. talk,” id, Phillips Justice Chief “[u]nbridled 3, 1835, Austin, Papers jurisdiction October people, so amazingly that these who concludes (Jenkins). individualism, "toler- prized lacked freedom expression. ance” of Austin had sum- 24. Nor was that call isolated. opinions "express on the moned Texans present our things, represent Id. our 26. and to state government." Speech Colo- situation to 8, 1835, Rupert (quoting at 29 N. September 27. See 859 S.W.2d 1 Pa- nel Austin delivered pers Richardson, (Jenkins). doing just Framing They the Constitution the Re- were Texas, (1928)). Nacogdoches "exchange Sw.Hist.Q. [of] that. with an freely fearlessly,” they sought support ideas their "the no This same commentator offers preservation rights" opposed Pennsylva- human Phillips' contention that Chief Justice liberty.” "symptoms Nacogdoches Meeting, tyranny dangerous keystone state for the Texas free- nia was the August at Id. 1835. provision. Speaking of our dom of neighbors theAt same time their 343-44. charter, appear he does not "[i]t first writes sought newspaper publication of Resolutions was followed.” one state constitution insisting adopted certain, are San Jacinto that “there at Commenting specifically Id. more essential, imprescriptible sacred Rights, concludes the Declaration of he guaranteed every citi- must be which had appears article It that the framers zen.” See id. 317-21. copy a of Constitution of the before them the south- States and that of several of Hogan, Rampant United Individualism in 25. Ransom states, Texas, they gathered Sw.Hist.Q. Republic ern western and that of

H differing rejected at the Penn- amendments Certainly wholly did Texans not live isolat- sylvania Convention of Constitutional ed from the rest of the and human world Texas and the Reconstruction Con- experience 1836,1845,28 1876,29 nor do latter, vention As it of 1868. they course, now.30 Of are there others rejection difficult of an to see how here and who abroad have made enormous by delegate amendment offered “who question contributions to freedom. re- Republicans” voted Radical to with the in Davenport by solved court and ad- strike this clause constitutes “at least cir- again dressed today once is whether anything. cumstantial evidence” judiciary Texas will to contribute that ef- Passing quickly particular over the word- independent decisionmaking fort with ing I, part appli- of that of article section 8 parrot thinking serve to of an Davenport, cable here and in Justice Chief judiciary every omniscient federal civil Phillips largely dissects un- instead another question. liberties interpreted at 23. clause. S.W.2d disparage only Not to content the first order to dilute state free our constitutional section 8 on which Dav- clause of article speech guarantee, this concurrence focuses enport centered, Phillips Chief ex- Justice exclusively almost on constitutional lan- tends his criticism to the second well: See, e.g., guage dealing libel with actions. passed no shall ever law curtail- [A]nd id. (deriding at as a “curious conclusion” ing speech, liberty press. Davenport’s early to com- reference Texas’ Though wording that such aware was not speech, mitment to freedom of since the commonly employed at elsewhere the time constitution “in also common with most adoption Texas, of its original Chief Jus- constitutions, expressly American state rec- Phillips tice immediately assumes that our id. at ognized prosecutions”); criminal libel Texas simply penning plati- founders were (condemning Court’s “characteriz- tudes rather than guaran- constitutional ing” regard Convention to tees. 859 22-23. He refuses to containing accord resolutions a truth defense in any significance clause, to this first incorporated by actions).32 Texans because of libel The law of defamation is gems political philoso- from each incorporated whatever in the second of section clause phy fancy. prove meaningless struck their 859 S.W.2d at Id. speech guarantee, nature free of the Texas wording acceptance also on its to that similar Indeed, 28. upon as indicated source another Id, of the first of section 8. at 20. Not clause Phillips whom Chief Justice relies: acknowledging inconsistency, he insists that although delegates to the Constitutional Con- unquestionably triumph what "was for conser- vention of 1845 mentioned time from to time vative interests allies" in commercial and their provisions existing in constitutions else- Pennsylvania controlling law in Tex- in 1790 where, they ready agree were with Rusk as in 1993. Id. at 21. that "We can reflect for ourselves and are capable forming a Constitution for our- noting properly proposal replace 32.In that "a selves.” existing expression provision with alter- Paxson, Texas, Frederic L. The Constitution of language native more similar to that the First Sw.Hist.Q. Amendment of United States Constitution Davenport acknowledged that our current Constitution, explicitly rejected” in the 1876 charter was “molded after reflection on the con- Davenport, this Court 834 S.W.2d refer- stitutions of meaning states should veer in [but not] delegate Brady enced defeat of a resolution Supreme each time the United States "including grant in favor of an affirmative Court new issue[s] a decision.” 834 S.W.2d at speak publish.” Id. at n. 13. (quoting Harrington, C. James The Texas Bill impact The court did address the (1987)). Rights clause, handling Convention’s of another not at dealing Davenport, issue in with libel actions Alfaro, 30. See Dow Chem. Co. v. 786 S.W.2d incorporated rejected in the same resolu- J., (Tex.1990) (Doggett, ("Never concurring) tion. required have we been our forfeit member- suggest Nor is there evidence to that the ship in the human race in order to maintain our substituting "per- same convention’s son” for the word proud Texas.”). heritage as citizens of "citizen” article 8 was section some Phillips just 31. Chief Justice "printer’s relies not on Penn- mere error.” 859 S.W.2d at 30. Texas sylvania’s rejection wording broadening similar to that protection was not alone in its public mea- public men and

to discuss freedom, to de- the utmost sures with superior through now declared the lens he be- restraint what nounce without to freedom of which the Texas commitment wrong, and to advocate lieved to be only did expression must be viewed. Not conceived to be vigor and fervor what he Davenport appreciate fail this Court right.34 looking the marvels this wonderful during period of reconstruction Only Phillips notes glass, also but Chief Justice and immediate- the Civil War that followed failings similar of those other state ly was preceded the 1876 Convention expres- their free courts that have “deemed editor Texas correspond- broader than the sion clauses fact by the unaccustomed confronted Id. n. 24. ing guarantee.” federal opinions expression of his that frank public those policy and the acts of parties any of the While irrelevant authority construed was liable us, Texas law of a review of the before treason.35 absolutely essential to the concur- libel rence; pri- it, Phillips’s argument Interestingly, could Chief Justice without an never history expert of free- expres- mary on our state’s “proponents made that of free occupying Union dom of quite hard”33 in Texas nor the sion died Reconstruction, ad- during General who extraordinary that assertion quite preposterous claim vances the 1876, Texas, [by] from a constitu- least in Tex- freedom never existed such “ha[d] standpoint, longer no on the tional was (quoting J.J. as,” at 31 General 859 S.W.2d edge expression; it cutting of free was 4, 1868). wholly This Reynolds, November not even the mainstream. unsupported assertion contrasts with hardly at 25. Such claims com- 859 S.W.2d delegates to the Recon- decision of even the reality century reject of nineteenth port with of 186836 to struction Convention Rights with ordinary newspaper conformity edi- our Bill of Texas in which the Texas disposed Rights37. Bill of the Federal tor has been described as Press, History in 2 A every Kentucky Rights: Gray, A the Texas "person.” The 34. A.C. See Bill Texas, History Celebration, Comprehensive 1685-1897 Ky.L.J. A Bicentennial Wooten, 1989). (Dudley ed. G. (1990-91) (noting "person" substitution of in the expression provision of section 8 of freedom Indeed, specific example given of the one 35. Id. Kentucky of 1891 for “citizen” Constitution century prosecution for seditious nineteenth a XIX, 7). in that of art. during period: was this libel Age charged that of the officers of [editor Houston] (quoting L. S.W.2d at 25 Frederic Pax- 33.859 government State one son, Texas, 1845, 18 Sw. The Constitution of champion He thief of America.” was "the Weeks, ed„ (1915)) (quoting Hist.Q. W. grand jury, Republican indicted a was charged (Houston the Texas Convention 303 Debates of libel, gave bond with criminal Indeed, 1846)). those debates reflect ap- his of five thousand dollars for the sum whereby public delegates compromise chose a republished the pearance He to answer. figures protection pri- than were accorded less true, charge, chal- it was insisted that vate citizens. trial; lenged but the case the State to By day, contemporary standards finally postponed to term and from term significantly appears to dif- been dropped. newspapers even some advo- ferent from what Id. at 403-04. example, Brown Cot- cated. For editor Godwin Co., Ry. Quinlan v. Houston & T.C. 36. See August issue of ton announced in the (1896) (explaining S.W. Tex. Gazette, Felipe published at Sam de The Texas that, pursuant proclamation of Presi- to a U.S. Austin, press made the that "our shall never be Johnson, met to this convention dent Andrew against private char- of accusations vehicle and disavow the Constitution restore But, accord- individual whatever." acter of Convention); Grigsby v. see also Secession commentator, ing later to a 142, 145, (1882). Peak, 57 Tex. acts, men, says, public are [Cotton] investigated delegates in the Sections 3-21 of responsible voted retain Rights Constitution private of the 1845 press, not so with cases. the Bill Barker, Early rejected committee recommendation Eugene Texas

13 jurisprudence. related Both this court and court, Ap our sister the Court Criminal We guarantee are told that Texas our recognized independent peals have vi freedom expression poor copy is but a tality of rather our Texas Constitution than an Pennsylvania earlier Constitution. 859 relying exclusively judiciary. federal Const, IX, S.W.2d 21 (citing Pa. art. 7§ See, Hanlon, e.g., LeCroy v. 713 S.W.2d (1790) paradigm as “the for the Texas 335, (Tex.1986); Baby 338-39 In re Mc guarantees”). were it Even true that our Lean, 696, (Tex.1987); 725 S.W.2d 698 Sax simply copied language forbears identical 661, Votteler, (Tex.1983); v. 648 S.W.2d from the federal constitution or that of State, 681, state, another Heitman v. 815 S.W.2d they that does not mean that accepted meaning (Tex.Crim.App.1991). repudiates identical attached He forum, that other then opinions. either or now. But rationale of all of these instance, particular in this what we are not Additionally Phillips de- Chief Justice Pennsylvania told is that the courts have rulings highest clares our these Texas regularly interpreted language “in- “simply wrong” describing courts a fed- dependently protect[ing]” expression, Wil eral individual constitutional floor for liber- Theaters, Dana, liam Goldman Inc. v. ties, may equal which the states or exceed (1961), Pa. 173 A.2d 59 and as “even ceiling with greater protec- level of protective more than the federal —a tion. 859 S.W.2d at 32. When both federal Constitution.” Franklin Assoc. Chalfont raised, state are constitutional claims Kalikow, Pa.Super. 452, 573 A.2d not, supremacy state court (1990); under see also Commonwealth v. Const, clause, VI, Tate, (1981). U.S. art. cl. afford Pa. 432 A.2d 1382 less they Nor are century ago protection alone. Almost a than individual wording similar to that contained in guaranteed by Rights. article Bill of our national I, section 8 was described as “terse and sense, prior writings In that of this vigorous” and compara “broader” than the fully regarding court are accurate a “feder- provision ble federal which it “varies” safety our al net”—a floor for liberties and and as “giv[ing] greater liberty in [citizens] potentially higher ceiling. It is state also granted.” exercise of Dailey independent judiciary true that an state Court, v. Superior 112 Cal. 44 P. may interpret its law fundamental as af- (1896). highest court of another fording protection less than our federal state to language whose constitutional Phillips prefers charter. Chief Justice expression freedom of Chief Justice Phil only latter. In his does our view not state lips refers has reached the same conclu expansive charter fail to offer a more ceil- sion. Oakgrove See O’Neill v. Construc ing for broader freedoms but it fails even tion, Inc., 71 N.Y.2d 528 N.Y.S.2d to offer a floor. 4-6, (1988). 523 N.E.2d In deed, today what he demands is not so Phillips Chief Justice insists that much imposition Pennsylvania con poor wording by the selected Texas fron- stitutional language minority ap provides protection tiersmen even less than proach to interpreting language, which elsewhere, guarantees those found very rejected.38 state has 31; our apparently State Consti- only superfluous subflooring tution offers expressed

The consternation in today’s rights. posi- for individual In essence hardly concurrence is limited his to Daven- port; really upset anything already what is that seems tion written Chief Phillips Justice important is a decade of scope about the freedom power government inhibitions of enunciated in arti- shall never be exercised this State. inclusive, thirteen, eight cles from one to Journal Reconstruction Convention of of the amendments Constitution of the States, States, deny United as well as to Government, the General the exercise of the Theaters, 38. See Goldman 173 A.2d at powers J., people, (Eagen, dissenting). therein reserved to the good,” 32. A greater 859 S.W.2d at good” must federal court “do[es] Washington.39 can best be from obtained that assures copied. A state court be possibility jurists that state rights greater liberty for its citizens must thoughtful, independent con- capacity for “grab bag” necessarily in the business sideration of even identical constitutional pronouncements;” a of “result oriented possi- is language40 not even a conceivable only gets the result federal court bility. Fortunately to our court continues right reasoning. is the Id. This with agree we our reject this view. Rather urged such vehe- essence of the view guarantees must own constitutional by Phillips an attack mence Chief Justice truly independent rising of the and fall- jurists with he not limited to the five whom ing case law tides of federal both today, generally at differs but aimed more specifics. method and in State courts prior rulings up- Texas disavowal responsibility cannot abdicate their holding state constitutionalism well as independent guarantees, least these at courts have “deemed those other state people not unless the of the state them- than their free clauses ‘broader’ en- to abandon them and selves choose corresponding guarantee.” federal Id. entirely federal law. trust their to 34; supra accompany- 32 n. also text at see Kennedy, Or. 666 P.2d v. 295 State ing Phillips more n. 22. Justice Chief (1983). Lost the discussion 1323 willing attempts find to than to fault with Blackstone, the law of of defamation sepa- recognize our state constitution as a courts, Phillips the federal Chief Justice liberties, rate, wholly firm basis for our forgets analysis only a that “[historical “principled to in a articula- reluctant assist point” understanding our Con- starting terms. Id. at application tion” and its stitution; way no our under- must “[i]n him, only possibility that our 32. To guarantees its frozen in the standing of state judiciary may interpret state our at 19. Our past.” Davenport, 834 S.W.2d than protection affording charter as less Texas is not a collection Constitution hope principled “of affords the federal promises, surplus- meaningless paper mere Id. at development.” constitutional state age guarantees. to Rather we the federal (offering praise n. a rare line 32 34 jurists give to are summoned effect acknowledge- my of its opinion because liberty its terms whenever is threatened. con- constitution could ment that a state give A court such state that dares protection). ceivably offer less independent meaning fundamental naturally as a adopted by as- concurrence derides governing law its citizens construct,” ephemeral rea- justices’ notion “false Id. at sound sures “five (1925). wholly recently As as Prudential Ins. Co. for a role 1138 39. his demand subservient Cheek, 530, 538, S.Ct. 66 jurisprudence strained inter- v. 259 U.S. for Texas and his (1922), Supreme United States pretation guarantees contained in L.Ed. Constitution, "the Constitu- Phillips continued to declare that Court the Texas Chief Justice imposes upon reality jurisprudence. tion of United States overlooks the of federal obligation upon confer those within meaning language States no The vital of constitutional jurisdiction free ... uncommonly lies dormant. As the U.S. speech....” Court, Supreme opinion by in an authored Chief Vinson, Justice observed: Kaye, Midpoint Perspective Judith S. A See involving important Law, no case Emerg- [ini- Directions in State Constitutional tially guaranteed (1988) in 1791] was decided this ing State Issues in Const.Law States, prior (“that provisions] Court to Schenck v. United are state constitutional [some (1919). US duplicated 470] S.Ct. 63 L.Ed. [39 in the federal Constitution cannot 494, 503, States, simply Dennis v. United 341 U.S. they to their mean that are be cloned 857, 864, see, S.Ct. counterparts”); e.g., 95 L.Ed. federal Commonwealth Similarly, century elapsed Upton, more than half 394 Mass. 476 N.E.2d (1985) (reaching contrary after enactment of the Fourteenth Amendment conclusion to United application guar- Supreme First before its Amendment States Court based on differences con- acknowledged cerning application antees to the states in Gitlow state and federal of similar York, provisions). v. New U.S. L.Ed. S.Ct. constitutional this on our own constitution allows court meaningful voice in de- Texas to have sons upon relied this court in Daven- veloping jurisprudence.... nation’s 17-19, port, justify 834' look- S.W.2d n ing first to our state His constitution.41 Texas, court, sitting state our As a broadside a most is further extended to law, judges is in expertise Texas our are summary accurate while facts here of the Texas Texas citizens members failing identify single, specific short- Bar, and our concerns are Texas con- coming in that recitation. 859 simply apply If we cerns. federal law Phillips 33-36 Chief Justice then concludes cases, why Supreme have a Texas by copying only reasoning not but the Court?.... sole buzzwords of his “commentator” on very diversity ... with the [Consistent pronouncements” “result-oriented —Justice strength union, supplies that to we our Hecht’s concurrence in Davenport42 —of experience build from in and else- Texas which replay a more verbose has been liberty.... where to enhance individual provided today. Id. at 37. A claim new that our constitution has as “a been treated accept responsi- today ... ... [W]e bag”43 handy grab charges of old bility thoughtful, complete, conduct a “case-by-case “unseemly activism” and independent search a sound un- chauvinism,” id.,44 charges at directed — derstanding of our most fundamental just pride this court that has taken our state law. unique heritage, Texas our Texas Constitu- 18, 19, 20, 22, Hopefully 834 S.W.2d 23. tion, and Texas jurisprudence our —have willingness an eventual of all members of fully been answered Davenport: accept this responsibility Court this will constitution, interpreting In our this produce considerably “more substantial” state’s unduly courts should be neither efforts in future. 859 at 37. S.W.2d deferential; rather, they active nor today All that is not the remains “flawed” independent should be thoughtful “methodological of framework” Daven- values, customs, considering unique port, id., but the unwillingness of four of our traditions citizens.... justices protect on this court to honor reflecting While local concerns as- it. suring accountability, local by reliance support solely 41.To agrees his reliance law on federal 42. Hecht in Justice turn with Chief Jus- Phillips particular expression to decide made tice claims Texas citizens under protected by Constitution, issue is here Amendment First Phillips the Texas Chief Justice despite announcement court his that this has no disregards overwhelming majority of com- jurisdiction to make that determination. approve judiciar- mentators that efforts of state J., (Hecht, concurring) S.W.2d at 65 ies to See, scholarship. contribute constitutional Galie, Courts, e.g., Supreme Peter J. State Typical 43. misuse of au- concurrence's Constitutions, Judicial Federalism and the Other thority, Collins, phrase pulled Ronald this from R.K. (1987) (of approxi- 71 Judicature 100 n. 10 Away on Reliance State Constitutions— articles, mately three hundred "all but a handful Reactionary Approach, Hastings a Const. from favorable"); Collins, are Kaye, Midpoint (1981). Judith L.Q. S. A In fact Professor Perspective writings upon Davenport, on Directions in State whose were relied Constitutional Law, very expressed Emerging criticizes the view the concur- Issues in St. Const.L. (1988); Brennan, entire Jr., rence. The thrust of the cited Collins William J. Bill that, reacting simply instead article is Rights and the States: The Revival State Con- they disap- isolated decisions federal of which Rights, stitutions as Guardians Individual prove, "state courts should first to their look Pollock, (1986); N.Y.U.L.Rev. 535 Stewart G. laws, regard downplay own and in Adequate Independent State Grounds a opinions ‘the concern about ebb and flow Balancing Means Relationship Between the Potomac.”’ Id. at 18. is the same This Courts, State and Federal 63 Tex.L.Rev. 977 interpretative adopted by method this court (1985); Linde, Hans A. E Pluribus —Constitu- Davenport, but to which the contin- concurrence Courts, Theory tional and State Ga.L.Rev. object. ues to (1984); Linde, Things Hans A. First Redis- First: covering the Rights, State's Bills (Hecht, Compare Davenport, at 41 J., U.Balt.L.Rev. concurring). PHILLIPS, Justice, plurality to erect concurring. doctrine leads Chief that, explains, Gonzalez vir- test as Justice opin- justices in two decisions five tually protecting the notion of eviscerates fundamentally ions are flawed based on the any competing interests or that are Expression premise that the Free Clause writings, by speech. Both howev- harmed Constitution, Const, art. the Texas Tex. er, Garcia, purport Davenport rely way is in “broader” or some relevant (1992), in which this Court 834 S.W.2d protective more than the adopted comparative breadth con- first United States Con- First Amendment struct. alleged greater stitution. Because of breadth, the Court strikes majority divergent One reason for such obvious trial court’s order. down the comparative is not a results is that breadth concept. In the free ex- one-dimensional

I that our clause “broader” disagree context, pression example, constitu- counterpart its sense than federal fact, provision may “broad” or “nar- tional I this case. am that affects 1) axes, including: row” on at least six certain the order trial court 2) types protected, in of deemed the Texas Constitution below violates range potential infringers against of any respect. Only I conclude that because 3) operable, guarantees provision is of the which the the order violates the join range potential persons I entities who First Amendment do the Court’s of 4) type judgment discharging may protection, Ac- the Relators. invoke cordingly, separately. permissible I write sanctions on restrictions and 5) expression, degree impor- free

I. necessary competing a interest or tance 6) right expression, to restrict free how A. expres- narrowly infringement on free comparative construct breadth accommodate that sion must be tailored to very which the Court adheres can mean Thus, pro- right. or competing interest things different to different beholders. expression clause as nounce one free Here, it does not dissuade Gonzalez Justice is, alone, standing than broader another recognizing from dichoto- fundamental help. little my governmen- between direct and indirect point any along breadth regulation, long starting tal most As to axes which case, I analyses speech. appropriately be measured this state and federal of free him, however, Expression require It a maintain that the Texas Free does lead than the corre- higher countervailing justify Clause is not “broader” interest to sponding guarantee of the First Amend- restricting than do the federal contrast, provi- A ment.1 closer examination our courts or most state courts. In 859-61, 854, 341, suggested Cal.Rptr. 346-48 Davenport, our 592 P.2d the Court In 74, merely (1979), grounds, speech guarantee is not "a restriction 447 U.S. 100 on other aff'd governmental speech such as 2035, interference with (1980); v. 64 741 State S.Ct. L.Ed.2d provided by the First Amendment of 626, 535, 615, Schmid, 423 A.2d 630 84 N.J. Constitution,” specif- rather "a United States nom, (1980), Princeton Universi cert. dism’dsub guarantee speak,” an affirmative ic 100, 867, Schmid, 70 ty U.S. v. 455 8, as was like "the First 834 S.W.2d it not (1982); v. see also Commonwealth L.Ed.2d 855 Amendment, purely negative ... framed as 158, 1382, Tate, 1390-91 Pa. 432 A.2d Id. at 8 restriction enactment laws....” (1982); Pennsylvania Socialist but see Western bar, Davenport, in- n. 13. As the case at like Campaign General v. Connecticut Workers 1982 infringement alleged government volves an 23, 1331, Co., 1334-36 512 Pa. 515 A.2d Ins. Life provision speech, also the issue of whether our McDonald, (1986); Or.App. Meyer v. governs private enti- the behavior of actors or (1992). larger An even P.2d presented here. A number states ties not number, however, rejected such a notion. expression guarantees have held that their free Assoc., See, e.g., Cologne 192 Conn. v. protect expression only against government Westfarms (1984); 1201, 1207-10 469 A.2d Citizens restriction, against private enforcement but also Assoc., 260 Place Ga. Govt. v. Gwinnett Ethical rights. property v. See Bock Westminster of Mall, (1990); Lacey, v. State (Colo.1991); 392 S.E.2d Robins v. P.2d 537-39, (Iowa 1991); Center, Pruneyard Woodland Shopping N.W.2d 23 Cal.3d facts, under the direction reject the law and the why sion demonstrates I the Court’s cases, court, conclusion, in other why necessary only as I find it claims. to reach Relators’ First Amendment ¶ n Const, art. 8. provision that no which It seems obvious

B. prosecu- expressly recognizes criminal libel Article Section 8 reads as follows: approaching read as Justice tions can be expression. of free Every person liberty to Black’s absolutist vision shall be at text, however, re- does not publish opinions or his on The unadorned write proper- being responsible guarantee should any subject, veal whether protecting privilege; ly abuse of that and no law shall be read “broader” expression rights than the passed curtailing of Relators’ ever be understanding the First press. prosecutions prevailing or of the publications papers, investigat- Amendment.2 To make such a determina- for the officers, tion, import ing men in must search for the the conduct of we “liberty,” “speak, pub- public capacity, pub- the matter terms like write when “abuse,” information, lish,” “subject,” “responsible,” proper lished is “law,” given “curtailing,” they relate to the truth thereof evi- libels, Only after we provision dence. And in all indictments for as whole. independent determine determination of our jury shall have the make an Mecham Recall Wash.2d Felmet, Michigan 719, v. National Democratic 839-48 cobs Smith Haven N.W.2d 102-05, 185, Assessment, Abortion straint Liberties Under the Texas Bill Hankins, visions Property Paul & scholarly vate ical Speech Rights Under State Constitutions on the al (1991); Shopping Hardy, C. L.Rev. e.g., 633 First Amendment has also Constitutional ments in the Law: The Collide, The issue of whether state constitutional 723 Harrington, Rights, (1982), Private v. 190 (1992); Curtis J. Activity (1991); Question deprivations (1987); Major, 488 302 N.C. of (Ct.App.1988); Note, Jeffrey impose greater (Alaska 1989); 68 TexX.Rev. William Burnett Citizens Expressive of debate, Centers: The Services, N.E.2d but in Texas as well. 30 Pruning Pruneyard: Limiting Free Property Mall, (1990); Note, 69 B.U.L.Rev. 780 P.2d Alan E. Private Medical Clinics Private on Berger, Pruneyard Post-Pruneyard Access to Left 139 Wis.2d see also Johnson v. Committee, Wayne Rights, Free L. Van 173, 66 N.Y.2d Lobby, 1211, Still as Unanswered, of free —When Joseph Davis L.Rev. 1073 24 U.C. Speech, Freedom: A (1985); 273 S.E.2d 708 93 L.Rev. Brownstein Harv.L.Rev. 95 Southcenter Joint Venture “Mailing" Horn, 1214-17 restrictions Fiesta Mall Venture v. Lands, ^[66] Interpretation Strangers: Nonemploy- 159 492, 423 Mich. Policy across the 929 Harvey, H. (1990); Fundamental Press, SHAD Alliance v. Ariz. Heitman v. Hart, (1989); engaged spirited 407 N.W.2d (1983); 498 N.Y.S.2d Revisited: Polit- (1985); Post-Pruneyard See, Rights, & Tait, St. Comm., 371, Constitution- N.Y.U.L.Rev. Matthew Free Private Re- against pri- Stephen nation, see, (1981); e.g., Mary’s Providing Assembly Elizabeth Michigan than the 774 P.2d Develop- 767 State Tex. 68 Speech James Rights State: 1401- State P.2d pro- 832, L.J. 113 Ja W. M. v. 2. I 423 Mich. Laurence quently quotes vate violations, also Western 515 Property, aspect haps at 10. If governed by dissenting). us. dence. See Diamond Shamrock fessor Tribe has observed: held and heightened protection. “more ment, held that all ee Union complex (Gonzalez, J., tion’s demands. of had to conform their conduct to make certain Such freedom is basic under Constitution short of of the Constitution's It would be [B]y part at 1691 simply disagree A.2d at I do infringements liberty, persons of plurality broadly exempting so that a literal in Woodland v. landmine, —of Tribe, American issue under Davenport, oft-repeated Tex.L.Rev. 62 Davenport note, however, (2d then it Organizers private relationships but it would denying to individuals the freedom constitutional concurring). Pennsylvania ed. with whom 378 folly worded” than the First Amend- criticizes n. 11 private truly 1988), with Justice Gonzalez’s choices, such as choices of N.W.2d of language 859 really suggests the view that our Anglo-American jurispru- prohibitions, on Private Commercial Michigan Constitutional attempt (Tex.1992) (Doggett, S.W.2d at is a 859 S.W.2d preempting individual inapposite earlier edition action from my application requires they principles. Socialist landmark, verbatim. See lost are constitutional no mention of any conception to the Constitu- 347 to resolve this v. Citizens will associate. are state has ever if Mendez, guarantee facts before that all it individuals (1985); potentially Law yet the reach stops Workers, As Pro- quoted Lobby, subse- long- n. per- this pri- 844 the 18- see id. J., (“... everything in guarantee’s meaning attempt we to declare that should we compare guarantee. its reach another out Rights excepted this Bill government, powers of and shall general To interpret provision of the Texas inviolate_”). I look forever remain also Constitution, pro- our we start with recent relationship provision to the entire Edgewood Indep. nouncement in Dist. Sch. not, component its (Tex.1989): parts, between as do Kirby, 777 S.W.2d concurrence, merely plurality construing In Texas section [a clause half of first first first Constitution], we consider “the intent all, guarantee, people adopted it.” who sentence. After the whole [citations intent, determining In although separated adjoining into sec- two omitted] it history “the of the times out of which Constitutions, prior Texas was com- tions grew rationally to which it by the framers the current Consti- bined supposed relationship, the to have direct section, single presumably into tution evils to be remedied and intended reason. accomplished, good proper are sub- to be Finally, experience I consider also the jects inquiry.” [citation omitted] jurisdictions, many of whom share However, in- because of difficulties free expression guarantees. similar Close- determining herent in the intent of vot- ly corresponding provisions existed in thir- heavily century ago, rely ers over a we of the American at the time teen states meaning on the literal text. We seek its Convention, Independence in- of our 1836 understanding with the that the Constitu- cluding joined every state which had organ- tion was ratified to function an Convention, By after 1791. our 1875 Union govern society ic insti- document time, clause, such a 26 of 36 other states had through they tutions as evolve [ci- I today.4 36 of as do other states tation omitted]3 language our am reflects convinced applying this standard to Article Sec- unique that is attempt glorify not an “all text, I tion thus look the literal Texas,” Davenport, 834 S.W.2d at general it historical context from which desire examine ac- but a conscious “the arose, to the sources fram- from which our “profit by tion of the other States” and it, ers to in derived their deliberations example experience.” and it, choosing understanding Debates of of the (Wil- 1845 at it, in adopting development voters in to its Texas the Convention of (remarks (1846) Weeks, reporter) of liam F. judicial opinions the of this other and states, Delegate of evolving Isaac Van Zandt Harrison and to its need to serve an Const, expanding County).5 society. and See art. Tex. articulation, Although acknowledges Davenport A in that "we somewhat different set forth 5. concurring opinion Davenport slight- helpful precedent the in also from sister and look to me, ly "ordinarily suggests experience modified that we as in Texas states" "we build from things language liberty,” to look such the of the consti- and elsewhere to enhance individual itself, provision purpose, interpretative its the histori- tutional its 834 S.W.2d at in fact written, analysis ignores Anglo- cal context in which it was the inten- wholly of the rest the ratifiers], applica- opinion tions of the framers the experience. [and ac- American The never decisions, judicial prior of knowledges expression tion in the relation pro- our Texas free provision parts of the constitution any jurisdiction, [other much vision resembles whole, understanding law as a of three-quarters and] the nearly of the American less government, constitution, other branches of the law in other It no other con- states. cites state federal, debate, jurisdictions, journal, state and constitutional legislative convention vention theory, legal and fundamental values in- analyzing and provision judicial or decision cluding justice policy.” Davenport, and social expressly the Court Texas Constitution. While J., (Hecht, my concurring, rely unique 834 S.W.2d 30 Texas [to] invited “other states noted). Edgewood additions formulation, Both this and the independently by legislature developed law "closely parallels,” Daven- state,” which it judiciary it this id. at returned of port, S.W.2d at are useful constructs say only “We do not the favor to this extent: analysis. constitutional guarantee inev- of free Texas federal, itably particulars from the varies in all or at 22.

4. See Appendix. that of New York California.” Id. or mind, general punished by English I principles With these libels are law ... press, properly under- guarantee liberty turn to the words of our of stood, infringed byis no means or violat- determine “the intended to remed- evils liberty press of the is indeed ed. The good accomplished.” ied and the to be state; the nature of a free essential to Edgewood, 777 S.W.2d at 394. previous laying consists in no but this upon publications, and not restraints II. mat- freedom from censure for criminal A. Every has published. ters freeman when 8, begins lay Article senti- Section follows: an undoubted what pleases public: ments he before Every person liberty shall be at this, destroy the freedom of forbid write, publish opinions his press: publishes if he what any subject, responsible being mischievous, improper, illegal, he privilege_ the abuse of consequences must take the of his own terms, By plain portion guar- its of the temerity_ Thus the will of individu- grants antee both and limits the freedom of free; als is still left of abuse expression, for one later be called to object legal pun- that free is the of will exercising “privilege” account for hereby ishment. Neither is restraint “liberty” expression. language The upon thought inquiry; laid freedom eighteenth century right derives from the left; private sentiment is still English publish common law to books disseminating making public pamphlets prior government without sentiments, destructive of the ends bad approval. generally See FREDERICKSeaton society society, is the crime which England Siebert, Freedom of Press corrects. 1476-1776: Rise Decline of Gov- 4 William Commentaries 151- Blackstone, (1952); Philip Hamburg- ernment Controls (emphasis original). er, Some of these Development the Law Sedi- very words were enshrined in the Press, tious Libel and the Control press guarantees Pennsylvania (1985). 37 Stan.L.Rev. English This Constitution of 1790.6 What “Blackstone “liberty press,” while no doubt ad- recognized England thus as the law of time, vanced in its cry was a far from came to be ... an established constitutional modern expression. notions See right Pennsylvania as to both Emord, Freedom, Technology, Jonathan Theatres, press.” Goldman Inc. William It was the First Amendment Dana, (1961), 405 Pa. 173 A.2d truly a publisher situation “let the be- denied, cert. 368 U.S. ware,” for the mere absence of censors (1961). language L.Ed.2d 93 This eventual protection against afforded no myriad states,7 ly spread to most American common and statutory by law mechanisms and has included in all the constitu been which an could be sanctioned tions of Texas.8 publication. As Blackstone ex- after plained: view, Under the Blackstonian disfavored [Wjhere immoral, blasphemous, expression, published, treasona- once uttered or could ble, schismatical, seditious, punished by private scandalous civil ac- Fortunately, today’s plurality opinion ap- Appendix. 6. See pendix concurring opin- and Justice Gonzalez's provisions ion do allude to the of other states Appendix. 7. See opinions interpreting and the them. While I agree plurality's with Justice Gonzalez that the Appendix. 8. See See also Article 16 of the Gen- unique prior view of restraint has not been proposed eral Provisions of the Constitution of elsewhere, disagree voiced I also concede that I proposed Article Section 5 of the West opinions interpreting correspond- with several ing guarantees. however, Texas Constitution of and Article Sec- plurality opinion, Unlike the proposed tion 8 of the Constitution of 1974. try explain my I do rationale differences. also, (Remarks tions, written, Delegate if by at 93 but criminal libel Debates Yolney County). actions criticisms of individuals or enti- Ex- E. Howard of Bexar libel”), (“private government ties right, pression thus a conditional (“seditious libel”), of the its officials church way responsi- in no whose exercise excused libel”), (“blasphemous or of “laws bility. (“obscene “public morality” nature” or li- dismiss our use One could forbears’ bel”). See Thomas CoopeR, TREatise on the language Blackstonian an historical Liberty Libel and the Law of the Press anomaly, except English that the common (1822); see 58-61 also Francis Holt, L. The law formulation was but one extant tradi- (1812); Blackstone, Libel Law of expression. eighteenth tion of in Even Although de- libel Commentaries century England, many of Blackstone’s enjoyed the theoretically fendants benefits contemporaries argued that the liberties largely by jury, of trial the courts nullified much press should defined protection deciding this the most crucial more in broadly. Grounding their views issues of the case. Cooper, Treatise on Mil- philosophers the earlier work of like Liberty Law of Libel and Press ton, Locke, Whigs Spinoza, the radical George 95; W. Cooke, Law Treatise argued society government actual- (1846). About Defamation suffered, ly benefitted, from rather than jury could ever decide was whether the Gordon, vigorous debate. Trenchard and defendant did fact disseminate the writ- published who the Lon- Cato’s Letters ing (“publication”), the sense which the argued from 1720 to don Journal (“innuen- question read words should be express without a broad oneself do”), writing or whether the was “of and Essay consequences. fear of No. See concerning” (“colloquium”). victim Speech; On Freedom That the Same actions, moreover, criminal truth was not a (Feb. Indispensable Liberty Publick from defense, damaging because all utterances 4,1720), in Jonathan Trenchard and Thom- reputation, particularly to one’s those (L. Levy ed. Gordon, Cato’s Letters accurate, were which were considered to 1971); Mayton, T. generally see William tendency have the to create animosities and the Lost Guarantee Seditious Libel peace provoking to disturb the Expression, 84 Co- a Freedom of lum.L.Rev. retaliation. Blackstone, violent Commen- (1984). Thus, general at 150. rule be- taries Whig truth, enjoyed The broad greater “the radical view greater came Odgers America, support espe- an colonial where Odgers, the libel.” See W. Blake cially press regularly vigorous defied on Libel and Slander govern- by criticizing royal law their local During many constitutional conven- See, e.g., ments. Arthur M. Schlesinger, tions convened Texas in the nineteenth Independence: Newspaper Prelude The century, debate centered not whether to (1958); A. David War On Britain structure, law abandon basic common Anderson, Origins Press modify on whether or how to it. Clause, 455, 512-13 30 U.C.L.A. L.Rev. questions defenses real were what to crimi- that, (1983). Many historians even believe prosecutions nal libel should be enshrined Revolution, by the commencement of the issues reserved and what should be press American notion jury “liberty in such actions. As for Black- closer to Cato’s than was write, publish,” meaning its as a point stone’s. to the Address to the They only against prior restraint restriction Quebec, Inhabitants the Province explained: understood. one framer well As Congress where in 1774 the Continental government protect which fails to “[T]he expounded expression one of the on free unjust unprovoked from as- character rights of the colonists”: “fundamental imperfect persion, is as as one that fails to mention, regards The we shall protect life. The one is as dear last other, press. impor- ought to be The placed as much freedom consists, the ad- protecting under the shadow of the tance of this besides law.” truth, science, vancement of morality, opinion Nor does the of the unconstitu- general, and arts in in its diffusion tionality consequent nullity of [the liberal sentiment on the administration of Act Sedition remove all restraint 1798] Government, ready its overwhelming communication from the torrent of slan- thoughts subjects, between confounding and its der conse- which all vice and quential virtue, promotion them, among of union all truth and falsehood in the US. whereby oppressive power fully possessed officials are to do that is shamed into more just legislatures. honorable and the several state means of It was them, conducting affairs. reserved to and was denied to the general government, by the constitution op Congress 1 Journals the Continental according to our construction of it. (1968). Moreover, 1774-1789at 108 nine of While deny Congress we have a original the thirteen adopted states Revolu- right to controul the freedom of the [sic] tionary constitutions press with some free press, we have ever asserted the guarantee,9 and none used the crabbed states, and their right, exclusive English terms of the Many common law. so_ general do ap- state laws suggested scholars have that this more ex- pear to presses have made the responsi- pansive approach was also embodied in the ble for slander as far as is consistent First Amendment to the United States Con- with their useful freedom. stitution, which was sent to the states Letter, Congress in Abigail 1789 and Thomas Jefferson became effective two Adams, years September later.10 in 1 (Lester J. Adams-Jefferson Letters contrast, By there is little doubt about ed., Cappon 1959). the intent and effect of the free provision Texas courts have traditionally adhered of the 1790 Pennsylvania Consti- tution, to this limited view of the state’s free ex- paradigm guaran- for the Texas pression guarantee. explained tee. The entire As was 1790 Constitution was un- Tucker, parte Ex questionably 110 Tex. triumph S.W. 75 for conservative (1920): commercial interests and their allies and a defeat for Whigs radical allies, and their The purpose provision of this pre- is to championed who the Constitution of 1776. serve what we call “liberty speech” Pennsylvania

See Rosalind L. Brannines, press,” the “freedom of the and at Development (1960); 9-20 Constitutional the same time hold persons accounta- Robert L. Brunhouse, The Counter-Revo- ble to the law for the misuse of that (1942). Pennsylvania, 1776-1790 lution liberty or freedom. Responsibility for expression The free excep- clause was no privilege abuse of that fully is as tion to that trend. Anderson, See emphasized by language its as that the U.C.L.A.L.REV.at 490 n. 211. privilege spe- itself shall from all cies of restraint ... Punishment for the Even those who claimed that the First right, prevention abuse of the of its placed Amendment stringent restrictions exercise, provision is what the contem- government the federal recognized the plates. greater states’ authority regulate ex- pression. As President Thus, Jefferson ex- prior 220 S.W. at 76. restraint plained Abigail Adams in always prohibited, 1804: assuming 9. See tution First America 22-50 and the also Const., nal See, e.g., Meaning Amendment, Vt. Appendix. Only expressly protected speech, Declaration Const, Constitution: Lucas A. (1991); ch. the Free in The United Powe, Jr., Rights, § XIV David Freedom of Speech Pennsylvania Rabban, The Fourth Estate XII States Constitu- Clause Pa. however. the Press (1776). Consti- Origi- See tion First a Free Press Early at 36 (1977); U.C.L.A. an: Realities Colonial Intentions and Current (1985); Leonard Amendment, American David L.Rev. (R. Simmons, ed., but see Leonard W. Levy Rabban, History, 523-33; on Freedom 125 U.Pa.L.Rev. (1985). The Ahistorical Histori- Thomas I. Stan.L.Rev. 1789); Anderson, Levy, Expression Emergence Emerson, 801- “liberty and re “conduct,” in the pression articulated the level of does not rise to Cologne v. clause. West government require sponsibility” can accounta- but the made, Supreme Assoc., con- expressions, once the Connecticut bility for farms privilege newspaper of free contemporary stitute “abuse” of the looked Court expression. Davenport conven As Court 1818 constitutional reports of the guaran- reiterated: our broader that the framers viewed tion to conclude “[U]nder tee, preference remains the it has been and the clause as: after, speaker of this Court to sanction a passage of laws applying] before, speech occurs.” rather than press speech or restraining freedom Davenport, at 9. 834 S.W.2d affordpng] pro- by its terms ... upon the against restrictions tection ... B. govern- rights exercise of those which pro- Expression Clause The Texas Free or may impose whether ment officials guarantee the second an additional vides by not sanctioned law. sentence: clause of the first added). (emphasis A.2d Even passed cur- law shall ever be no [A]nd “law,” conception of under a more modern speech, tailing or Supreme v. Court Jacobs Wisconsin press. explained: Major, has also been includ- provision, This which re- independent clauses ... are The two Constitution,12 every adopted ed in Texas liberty and other with lated to each [the acceptance in other enjoys general far less expressing responsibility formulation] Only four states jurisdictions. American the second to free only 16 language in had similar state, against entity, stating the states had it when the Constitution is shielded. whom today, Even fewer than 1876 was framed. protection in afford such half the states at 837. 407 N.W.2d their constitutions.13 Furthermore, history sug the available clause, delegates to the first As with language not viewed gests that this was conven- the various Texas constitutional particularly protective of many framers framing expended tions little effort speech. The framers Wisconsin probability, the text language. In all rejected example, Constitution borrowed, directly indirectly, or from the provision mo- proposed indefinite a as too to the United States Con- First Amendment protections Amendment delled on the First Alliance, stitution. SHAD assembly. Cf. See speech, petition, of free 488 N.E.2d at N.Y.S.2d (Abra 407 N.W.2d at 849 Major, v. Jacobs the fram- authorities cited therein. What hamson, J., dissenting); concurring pro- originally intended to ers and ratifiers Society Wisconsin, The HistoRical State by these words is less certain. tect (Milo Quaite M. 1846 at 365 Convention ed., 1919). Pennsylvania Conven At the su- Both the Connecticut and Wisconsin Miller, Henry who Delegate courts, recently tion of example, preme expanding the consistently against language in their voted that similar concluded expression, to substitute sup- liberty of wanted only modify constitutions serves (“no this clause law language similar to general right of free ex- plement a more (Tex.1956); Wamix, Inc., 295 S.W.2d explained: 11.As Tucker (Tex.Civ. Yancey, 265 S.W. Hawks v. protect natural Equity the exercise of will 1924, writ) (injunction upheld App. no — Dallas from interference contractual persistent "words and against harassment where attempts or coercion. Verbal at intimidation "constituted which became verbal acts” that character. threats assume written Minnesota, conduct"); 283 U.S. Near v. conduct, do, they they cf. amount When 625, 631, 75 L.Ed. conduct, and for that reason threatened properly be restrained. Appendix. 12. See Mowbray Hajek v. Bill 220 S.W. at 76. See also Motors, Inc., (Tex.1983); Drivers, Appendix. Helpers See Warehousemen and Dallas Gen.

23 Tucker, (“The passed 220 S.W. at 76 abridging parte ever be the freedom See Ex shall press”) the detailed experience English of or of the for and some of nation Pennsylvania guarantee. tyranny of colonies under the the American of the Minutes systems is the reason [licensing] of the of Penn of Convention Commonwealth [the sylvania 166,174. (1790); 383 At see id. at to prior is one common ban on restraints] Texas Constitutional of Convention States, of the American the Constitutions 1845, Delegate of Lemuel D. Evans Fannin words, in incorporation, in like and for its County, always vigorous of free advocate to the Con- the First Amendment Federal rights,14 unsuccessfully expression moved stitution”). experience While the federal the entire to strike clause. 1845 Debates elasticity elegant demonstrates of these Similarly, at at 73. Reconstruction words, yet suggested Texas case has no 1868, Delegate of R.K. Smith Convention imparts protection clause that the second County, who with the of Galveston voted either the greater “liberty respon- than Republicans replace Radical most of the Amendment, or the or sibility” clause First bill of exact lan Texas with the ability impose that it the state’s modifies guage rights,15 of the federal also bill of punishment expressions an deemed unsuccessfully moved to strike clause. id. “abuse.” See 1 of Conven Journal Reconstruction (1870). of 1868 at 663 Miller That tion language, favored such Evans and C. while it, opposed Smith is circumstantial evidence clause of Article 8 The next Section importance placed of the relative on these provides follows: eighteenth in the cen words and nineteenth prosecutions publications of turies. investigating papers, the conduct of- of Furthermore, it must remembered ficers, public capacity, men in that, original purpose, during whatever its published proper when matter our the time constitutions were framed the information, the truth there- expression guarantees free of the First given in evidence. generally Amendment were applied because the Su Ironically, United States prior See, e.g., forbid restraints. Patter- preme apparently interprets now Court Colorado, 454, 462, son v. U.S. S.Ct. prohibit First Amendment to criminal sanc 558, Theophilus 556, (1907); 51 L.Ed. 879 statement, true tions for see Garrison PaRsons, Political, Personal, The Louisiana, 379 U.S. Property Rights v. S.Ct. of A Citizen United (1964); v. L.Ed.2d see also Gertz (1874),quoted in, States Emord, Free- Welch, 346-48, Joseph 87-90; 418 U.S. S.Ct. dom at Story, Commentaries 3010-11, (1974); L.Ed.2d 789 Farns on the Constitution of the United States Co., 286, 253 (1833). v. Tribune 43 Ill.2d practical 703-04 worth For all (1969); therefore, purposes, the state and federal N.E.2d Commonwealth guarantees Armao, regarded were the same. Pa. 286 A.2d Convention, proposed power in the arti- 14. Later enunciated in Evans inhibitions expansive thirteen, inclusive, most ever con- eight clause cles from one sidered Texas: of the amendments to the Constitution of States, States, punished speak- deny No citizen shall ever be United as well as ing, writing, printing, publishing, Government, or circulat- the exercise the General ing opinions, by any subject, his either powers people, and therein reserved to the indictment; suit or civil proven unless malice be government be exercised shall never implied. this State. (1845); at 75 Convention Journal Convention Reconstruction Journal proposal Debates 95. This was defeated however, delegates, at 235 voted delegates. 1845 Debates at 95. Rights substitute Sections 3-21 the Bill of proposed for the Section 1845 Constitution 15. At the First Session of the Reconstruction Convention, existing eventually id. at retained the the Committee of General Provi- language expression guarantee the free sions recommended that Rights of the Bill with- Section 3 change. read as follows: out Id. at 663. adopted (1972), provisions By of ten had the the the third states Pennsylvania clause to con model three New fail resonate with modern the expression. cepts model, of free But our framers Mis- York two followed the “accepted concept republican the that a model, sissippi which had even been aban- politically li government form of can be state.19 Yet the Constitution doned the offender should crimi beled and that be Republic adopted language the of Texas of Emergence prosecuted.” nally Levy, original Mississippi identical to a almost of (discussing Pennsylvania clause: FREE Press fact, 1790). them, Constitution of To libels, prosecutions the truth In all for key provision in de language this was the given be may evidence. ciding protection much how constitutional Rights (1836). It Const., § Tex. Dec. of Thus, must expression. accord we was, time, markedly pro- for its a liberal history development of examine the nouncement. underlying to understand clause Texas, compliance joint with the When guarantee. of entire intent annexation, Congress resolution of for departing rule By from the common law 797, adopted ratified its first Stat. punisha- that even statements could be true constitution, rejected state framers offend, if they ble tended incite or Pennsylva- favor of earlier formulation poli- implicit framers ratifiers made an nia-type clause: cy determination the value of some prosecutions publications In for the of outweigh any types utterances would conduct offi- papers investigating the sta- they might government harm cause to cers, capacity, in a or public or men bility or inter- personal reputation. What published proper is the matter where sufficiently important require ests were information, may public truth thereof generated a truth more discussion defense given be in evidence. framing of and more motions than did the components all other our free Const, (1845). This decision art. § Tex. clause combined. rejection of reflected the framers’ a broad vigorous, written, untrammeled commitment to When our constitutions were subserved, good can what press. “What be regarding evi- three distinct formulations arise,” Delegate Love asked James of truth in trials The benefit dence libel existed. first, public Pennsylvania County, dis- originating in Con- of Galveston from “every little indiscretion which stitution restricted the admissibili- cussion press solely catego- may community?” occur in the The ty truth a few narrow into public “no to enter ries of statements related to and had business whatever second, character; ap- let them confine their governmental private affairs.16 public offi- in the York and remarks to the pearing first New Constitution strictures providing 1845 Debates open-ended, government.” more cers of was speaker Delegate Mayfield Fayette S. complete act- James defense when 76. County agreed, asking: “In what manner good justifiable ed “with motives and third, appearing first in the is the cause of freedom ends.”17 1817, simply throughout promoted by Mississippi the world to be Constitution truths, pros- allowing publish in all an editor to even permitted evidence of truth libel regard private ecutions.18 with relations 16. In justifiable prosecutions papers published good publication motives ends, investigating acquitted. the official conduct of officers party shall be public capacity, men published matter VII, in a where the (1821). 8 N.Y. art. Const, information, proper may given thereof in evidence. truth libels, 18. prosecutions In all indictments IX, (1790). Pa. art. Const, given the truth in evidence. Miss. Const. 17. libels, prosecutions or indictments for 8§ art. given jury; the truth in evidence to the appear jury (cid:127)and if it shall that the 19. See Appendix. true, charged matter was libellous life?” Delegate Thus, Id. at Isaac Van the Texas Constitution Zandt County of Harrison observed: hardly cutting edge on the of free expression;

I it was not even in the liberty would not diminish main- the press: Only I stream. would six other state constitutions have it as free as the heaven; provided winds of put clog I still a would no for such circumscribed upon defense, it. But let employed this truth while nineteen used either give with discretion. You every one the the Mississippi New York or models.21 right to bear arms for his own defence: Pennsylvania, originated Even which but does it right follow that he has the approach Texas had it abandoned slay neighbor his in all cases? standard,22 for a more liberal as had Great Britain, Campbell’s where Lord Act of 1843 at Although delegates Id. 90. were good had made truth with motives a de- divided, closely eventually the more restric- prosecution fense in a for criminal libel. prevailed. tive view As one historian con- (1843); 6See & 7 Viet. c. 96 Levy, cluded: “The complete movement for liber- Emer- gence Free Press hard, 212. ty gained only died but in the end it aof a clause added original section [as reported by the General Provisions Com- D. mittee], “or published where the matter The final clause of Article Section 8 proper information.” Frederic provides: Paxson, L. Texas, The Constitution of libels, And in all indictments Q. 386, (1915). 18 Sw. Hist. 395 jury shall have the to determine Virtually changes no were made facts, the law and the under the di-

language in the next three constitutions.20 court, rection as in other cases. However, vigorous again effort was This expands clause expand made to common law role scope of the truth of fact prosecu- defense finders criminal at the 1875 Convention. The Bill libel tions, Rights ensuring them the Committee render a initially offered a clause, general they broader verdict the same manner as during debate the dele- gates do in say, narrowed the other criminal cases. That is language. Journal permits the clause jury guilt to decide 338-39 Constitutional Convention (1875). Eventually, by applying legal the motion innocence of Dele- relevant gate John Reagan evidence, H. of Anderson standards to its view of the County, re- the familiar language solving subsidiary the 1845 each of the legal- Constitu- issues tion was by reinstituted ly necessary the framers. See to reach its verdict: whether Daily 339; id. at libellous, October the material is News, whether the defen- Galveston Daily 13, 1875, 1; it, published dant TelegRaph, and the sense in which Houston 13, 1875, October at 1. the material should be read.23 Some states Appendix. rule, 20. See seriously, destroy that the if taken would uniformity adjudication.” the "chances of Appendix. 21. See power judges. By It also threatened the states, century], many [mid-nineteenth stat- Appendix. 22. See decision, repudiated ute or had the doctrine. History A Friedman, Lawrence of American Law general guarantee protects against While the (1985) Thus, (emphasis original). 284-85 judicial usurpation the kind of that occurred at opposing the deletion of this clause at the 1845 law, concluding phrase, common "under the Convention, Delegate Armstrong James of Jef- court, cases,” direction of the probably as in other was County argued: gentlemen ferson erything “If want ev- jury intended to curb discretion and court, jury tried without a let power. explains: As Professor Friedman general provision them make such a in the jury There was a maxim of law proper place.” that the was 1845 Debates at 87. Our courts judge both of law and provision of fact in criminal ju- have read this to mean particularly strong court, cases. The idea was in the ries "take the law from the and are re- first, Revolutionary generation, quired State, governed when thereby.” memo- to be McArthur v. royal justice ries of (1900); were fresh.... But the 41 Tex.Crim. S.W. savage rule came State, under attack from some Squires see also v. 39 Tex.Crim. judges and other authorities. There was fear S.W. clause,26 role provisions qualifies jury’s di- trace similar constitutional Act, court, rectly ch. to the Fox III. as in Libel Geo. “under direction (1792), Mossman, see, e.g., Third, Gray v. cases” in the fourth clause.27 (1917); Conn. A. the ac- was little desire sanction there State, 79, 82 98 Miss. 54 So. Oakes and scan tions of those who would “discuss (1910); Printing v. Workers’ McWilliams lives,” every private our 1845 De- act of Co., Mo.App. S.W. (remarks Mayfield), Delegate bates at 81 (1915), suggested while others against [women],” calumnies id. at “utter provision inspired by Peter Zandt), (remarks Delegate publi- Van Rodney Zenger A. Smol- trial 1735. See “every little indiscretion which cize Speech Society Open at 29-30 la, in FRee an (remarks community,” in the occur id. at Emergence (1992); at Levy, a of Free Press Delegate Love), “drag [a woman] incorpo- Today, 212. states nineteen other public gaze publish the to the before [and] parallel guarantee rate in free ex- a their in every peccadillo or misdeed her world pression clause.24 (remarks history,” Delegate id. at 81 Mayfield). not be While could cen-

III. advance, protection in sored would not be “pri- who the afforded those invaded A. private relations of citizens.” Id. vate Many is one to make of all this? What Zandt). (remarks Delegate Van of the framers’ now seem ob- deliberations seen, scure, and, provisions as we have the important

most to them have effec- been B. tively superseded evolving guaran- the apply To what we have learned the ap- in tees of the First Amendment. Yet hand, must first determine facts we contempo- plying antique these words constitute the trial court’s orders whether situations, rary we must remain faithful do, speech. they they If prior restraints on purposes the of the framers and essential unconstitutional, as is no asser- are there stand out. ratifiers. Several conclusions expression here constituted tion the First, broad, majestic guarantees of the or “threatened conduct.” Ex “conduct” the first two clauses were combined all, Tucker, After 220 S.W. at 76. parte precise, provisions last the technical theory of free It has never the been Any reading expres- two. of our fair say could institutions that citizen guarantee provision sion consider the must might only legislatures what courts whole, merely portion not first say, him or that his sentiments license thereof.25 In addition to the truth defense concerning any person clause, any subject characterizes ex- our Constitution supervised, before he could ut- pression as a the first should be “privilege” "privilege” Appendix. used the term 24. See 26. No American state 1836, corresponding provision only and in a failing part 25. how one In consider contrast, today. By two other states use it twen- guarantee might meaning of anoth- inform "right," ty-two term fifteen use states use the er, plurality err. Justice Gonzalez both “liberty," Appen- See and one uses "freedom.” partial approach principal me This seems to Although discussed this dix. no decisions have also, why jurisdictions reason some other distinction, argue "privilege” one could consideration, deemed free ex- after little pression used elsewhere. more restrictive than terms respect in some guarantee. than clauses "broader" See, e.g., corresponding federal jury's Only qualify the role as four states Corp. Tel. Co. v. Mountain States Tel. & Arizona Comm'n, 350, 455, being (1989); both the direction of court” “under Ariz. P.2d 35, Hearings Concerning states omit the In Canon 132 Colo. and “as other cases.” Nine re cases,” (1956); P.2d O'Neill v. phrase 466-67 “as one leaves out in other Constr, Inc., court,” Oakgrove 71 N.Y.2d five “under direction (1988); n. see N.Y.S.2d 523 N.E.2d corresponding reject limiting phrases in both Coe, P.2d also State v. 101 Wash.2d provisions. Appendix. See (1984). ter Liberty them.... will end expression outweighed by fettered are when such begins. control legally cognizable competing costs to Thus, Bering conflicting interests. Id. SHARE, Washington Supreme Court order, present however, the trial held abortion protesters clinic court was not acting as a censor either as speech rights “by blocking “abused” their to the content of Relators’ or as ingress egress engaging identity persons speak. allowed disorderly picketing,” coercive and which Instead, challenged portions of the in- “impede[d] care, turn access to health junctive regulated only relief where Rela- impinge[d] upon ... women’s constitutional might tors stand demonstrating. while right to make and effectuate the abortion time, place While some restriction of decision.” 106 Wash.2d 721 P.2d at manner spatially be so extensive as to dism’d, (1986), cert. 479 U.S. prohibition against speaker constitute a 93 L.Ed.2d or his or message, every her limitation Hence, rises to this citywide level. ban precisely type balance, This is long on the newspaper sale of a would be barred required courts, plurality opin- which the Neill, by 8, Article parte see Ex Section rejects. ion today But such fact-specific 275, 923, Tex.Crim. 923-24 S.W. inquiry, far from mere “labeling,” is at the (1893) (striking down local ordinance that core of what courts compet- must do when Chicago declared newspaper a nuisance and ing rights and interests pre- collide. For prohibited limits); its sale city within cf. cisely the reasons articulated Justice Organization a Better Austin v. Gonzalez, I conclude that 100-foot bans on O’Keefe, 415, 1575, 402 U.S. demonstrators who seek to confront wom- (1971) L.Ed.2d 1 (injunction barring leaflet- en and call attention to their choice ting anywhere in city prior restraint), decision to seek abortion are not services but a restriction of a few feet on abusive or prior They restraints. merely reg- instead damaging speech surely should not. Such expression, ulate the location of and their a limited restriction would enable the validity must be tested under our Constitu- speakers to deliver message to whom tion whether the constitutes want, they a manner that accords an speakers “abuse” which the weight some of others. Strik “responsible.” been held ing such a balance competing between in terests is at the heart of free exercise

jurisprudence, both under the federal and C. guarantees.

Texas Garcia, See State v. plurality does the justify How abandon- 793, 823 S.W.2d 797-98 (Tex.App.—San to An ing balancing process impose a near denied) nio writ (applying time, protection speech? absolute It offers place, and manner analysis to Article justifications. three basic All fail. claim); Section 8 Lindsay v. Papageor giou, 751 S.W.2d 549-50 (Tex.App.— 1. Houston denied) writ [1st Dist.] First, (same). plurality As looks not to authori- Professor Cox has observed: time, involving ties expression, place “Freedom of despite prima manner re- its absolute_ cy, strictions, can never reviewing but to cases essential- Some bal ancing inescapable. ly expression. total bans on ques applies ultimate It always, tion is Davenport, where has —and should —the test of clearly which involved a balance restraint, be struck?” prior Cox, case, to the facts of this Archibald Free Expression announcing: dom of especially expression may

This is Freedom of true re- under state consti- guarantees ours, solely grounds tutional stricted like where a bal- that its exer- ancing of interests is inherent in the cise will have providing notion the effect of Speech of “abuse.” is “abused” when the irreparable imminent and harm. Re- legally cognizable arising benefits from un- imposed straints if in-

junctive encompasses least re- relief 2. against protecting means strictive Second, rely plurality purports alleged harmful effect. “jurisprudence history” and ... of our expressed by clause as state plurality 6. The also 859 S.W.2d at cites Davenport, 859 S.W.2d at this Court Ex cases, including prior other restraint exploration A of the Court’s ratio- detailed McCormick, Tucker; parte parte Ex fallacy case reveals nale 104, 106-07 (1935) 457, 88 Tex.Crim. S.W.2d reliance. trial); (“gag coverage order” on media Foster, parte Davenport, Ex In first claimed to 44 Tex.Crim. S.W. the Court Neill; parte analysis Ex (same); and detailed (1903) conduct a “careful Feminelli, interpretation of arti- Pirmantgen development 745 S.W.2d one, give effect eight cle section ... no (Tex.App. Corpus Christi — indelibly state con- Strang v. what is written into our writ) libel); against (injunction at 21. conclud- stitution.” Biggers, 252 S.W. 826 (Tex.Civ.App . —Dal always an ing Texas has selected “ex- v. Grand Mitchell writ); no las expression clause pansive freedom of ... Masons, Lodge Accepted Free & Tex. id. speech,” to ensure broad (Dallas 178, 179 Civ.App. 121 S.W. astonish- the Court a number of committed writ).28 plurality points to no no ing errors. jurisdiction currently failing recog prior restraint nize distinction between instance, For the Court claimed speech, I legitimate regulation language proposed constitution extraordinary find This result could “incorporated strong none. the desire of mischief, harm, govern- if speak create much and much of Texans to without fear Id. at princi 7. This is a adopted by repression.” this Court as a universal mental provision regarding conclusion ple. curious response provoke a upon by plurality tend violent 28. case the would not to The sole relied Meckel, 220 arguably prior See Ex Parte decision from non-citizens. that is not a restraint Instead, 120, Meckel, purpose might the of the statute parte S.W. at 84. 87 Tex.Crim. be Ex felony the use of the (1920), was “to denounce as a S.W. the of Criminal which Court described,” id., language disloyal as an end in speech grounds Appeals struck down on free the Act, itself. Disloyalty prohibit- World War I-era which variety ed a of utterances critical of the United by only plurality the even re- case cited case, States er, its armed forces. This howev- Henry, point factually, parte motely Ex supports hardly primacy is, of (Tex.1948), the total free despite Tex. 215 S.W.2d 588 (cid:127) expression plurality advances. The contrary, solely the plurality’s the intimations actually upheld opin- court Act initial the in its case. See id. at 594. a First Amendment ion, concluding pre- that the Act was aimed Felipe April, at San a Convention 29. In peace punish venting not breaches and did of part proposed of drafted a state constitution speech merely id. at as an end in itself. See 81- separate from Coa- an effort to secure statehood reasoning, while consistent both with This Provisions of Article 16 of the General huila. rationale for seditious libel oth- historic provided: that constitution statutes, pro- less er criminal libel seems even than was the First Amend- tective of thoughts and communication of The free jurisprudence that era. Schenck v. ment of See opinions, of is one of the inviolable States, United 249 U.S. man; freely may every person (1919) (issue analyzing L.Ed. when seditious write, subject, any print, publish, be- “are whether words used liberty; restriction was ing responsible of that abuse are of such a nature as to in circumstances and publication pa- prosecutions for the of but in danger they present create a clear will pers investigating of the official conduct men Congress bring about the substantive evils that public capacity, the truth thereof rehearing, prevent"). evidence, personal to On given has howev- as well as in ac- er, slander; was court determined that the statute not of and in all indictments tions peace [sic], preventing jury aimed at breaches of the be- shall have the libles facts, appeared prosecutions authorize and the under the cause it uttering determine law proscribed language persons as in other cases. who direction of the court were citizens of the United States. The Orleans Commercial Office Bulletin, of the New language of critical of the United utterance Government State Constitution of of Form of forces, (1833). implied, States or its armed the court Texas that, contemporary substantially of what can find attached one common with most constitutions, rec- expressly state state.” American the constitution of almost Origins prosecutions.30 Ericson, criminal see also J.E. ognized 213; libel Id. of Rights, Sw.Hist.Q. Bill the Texas Next, the 1836 the Court intimated that (1959). 457, 465-66 empha- special Constitution demonstrated gen- “in speech, sis on since that document discussing framing In both closely wording of eral tracked the Constitutions, the Court 1845 and Constitution, differing lan- United States truth de- wholly ignored scope of the speech.” chosen guage protect fense, delegate characterized one fact, at 7. In constitution of “[t]he tyran- against “the ... freedom battle struc- Republic composite is a Texas (remarks Dele- ny.” 1845 at 77 Debates portions of of the ture of the constitutions County). gate Francis Moore Harris of the state United States of several Rather, preliminary, it mentioned two Ru- constitutions effect at that time.” these unimportant each of decisions from Framing the Consti- Richardson, pert N. conventions, essentially all of which were Texas, Republic tution of 31 Sw. product.31 irrelevant final (1928). phras- Only a few Hist.Q. sig- immense Finally, the Court attached Rights were sub- es of Declaration nificance to the framers’ substitution Bill of stantially the same American as the opening “person” “citizen” in the short, In Declaration Rights. “[t]he This “care- phrase contains and consists of Article Section 8. Rights nothing new form, substantially unchanged guage Dele- an amal- 30. Most 1833 Constitution was Tennessee, Missouri, gamation of the and Loui- County at- gate P. Titus William McLean of McKnight, Joseph constitutions siana Stephen see W. tempted substance of to introduce at least the Concerns, Legalistic Austin's 89 Sw. language general provi- into the the defeated particular, the first Hist.Q. resolving spo- truth of words sions "that the twenty-one general provisions were taken al- speaking published, good motives in ken or twenty-one most verbatim the first from pled libel publishing, in case of twenty-seven sections of the Declaration of Rights of the Tennessee Constitution of Daily News, October See suits." Galveston action General Provisions at 1. The Houston, hardly surprising a former since Sam failing language to to refer this Committee Tennessee, drafting governor of the chaired 553-61, Convention, is some- 1875 Journal at the Henry Felipe. committee at San 1 John See by victory trumpeted a for "an the Court as History how at 229 Texas From 1685 to 1892 Brown, of (1892). expression provi- expansive expression The of clause." 834 Tennessee free freedom course, sion, closely of on Article Delegate was modeled of at 8. first resolution S.W.2d IX, Pennsylvania of Section 7 the Constitution County, Brady referred to the of Grimes E.W. Const, XI, Compare 1790. 19§ of Tenn. art. Committee, Rights lan- of also contained framers, Bill IX, (1796) (1790). with Pa. 7§ art. Const, which, surely guage at least the was to protective expression that of free than more As to the the Court Constitution of 31. finally adopted: only preliminary a vote deci- 8, retained, proposed the deleted lan- the and his substitute restore mittee its Section previous Daily guage adopted. word "citizen” as used in constitutions: was See Texas Gazette, 22, 1875, Although Dohoney’s at 2. October Every liberty to citizen shall be at joined with a the two omitted sentences motion publish opinion subject, write or being responsible his semicolon, it word “citizen.” 1875 retained the privi- the abuse of Thus, Rights passed at the Bill 434. lege. passed ever Journal And no law shall curtail- language reading with traditional third the its speech, press. ing the the And 26, Daily News, October intact. See libel, Galveston the in all civil or criminal actions Convention, 1875, day last of the at 1. On the given in evidence to the truth thereof however, was the entire document read aloud alleged jury, appear the and if it shall delegates. approved the This was the good published libelous matter was mo- ap- "person” which word first version in the tives, ends, justifiable it shall be a 27, Daily peared. See November Galveston News, sufficient defense. 2; 1875, Daily Telegraph, November at 272. at Houston Journal 1875, 28, seen, at 2. delegates rejected this As we have the my suggestion Although plurality the derides previ- language and retained the text of the new change might a “mere” constitutions, word have been that the only as four which differed ous 32, error, printer’s 11 n. it 859 S.W.2d at offers Upon guarantee. portion of en- the final the however, absolutely explanation no for how this substitu- grossment, printer included accomplished omitting absent vote changed language, unchanged tion was or, surviving delegates show, far record Delegate Dohoney first two sentences. E.L. acquiescence. County even their conscious "drew attention to omis- [this] Lamar criminals, but honorable during Mexico’s abonds tions for electoral reform Eugene political alike travel with empire, C. dishonorable BarkeR, first see Stephen (1969), demanding pockets, F. 71-72 in their constitutions Life of Austin continuing through from the his Circular a constitution privileges which such ... Safety to the Jurisdiction of Committee of Barker, guarantees.” See The Life of Ste- Papers Austin, 8, October phen did 261. Such devotion of the Austin at F. (John 17, at 1835-36 exer- for the always extend to tolerance Texas Revolution not ed., 1973) (“The ... party ... H. Jenkins Thus, by others. expression free cise of sup- governing in Mexico ... now [has] passion for freedom “widespread influence, expres- military pressed, by “contrib- Republic of Texas speech” in the no other public opinion_”). But sion of and, fights frequency uted to specifically refer- revolutionary document extent, William Ransom of duels.” lesser deprivation expres- ences Mexico’s in the Hogan, Rampant Individualism Resolu- sion the San Jacinto —not Texas, 456- Republic Sw.Hist.Q. Papers 8, 1835, August 1 tions of (1941), reprinted in William Ransom 317-21; at not the Texas Revolution Republic (1946). Hogan, The Texas August Nacogdoches Resolutions of Houston from prevented Intolerance Sam 343-45; Brazoria id. at not Austin’s in Brenham the courthouse speaking at 423-27; 8, 1835, September speech of id. during race for Governor his unsuccessful People of Texas not the Declaration 1857,33 the Union and after the CivilWar adopted Convention Assembled General report: Texas was moved to commander for 7,1835,1 by the Consultation November press, as the terms Free and free 522; not the Address of Gammel States, generally understood are the Provisional Govern- General Council of fact, In in Texas. have never existed People of ment of Texas to the Mexican appreci- not other states can citizens of 11, 1835, 651-52; December id. at of affairs in Texas without ate the state Resolution of the Provisional Government actually experiencing it. Calling a Convention of December 980-82; not the Declara- id. at Goliad Reynolds, Report of General J.J. Official Independence on December tion of reprinted in Journal November 817-20; Texas id. at not even the Convention, Second Reconstruction Independence Declaration of of March in modern Even Session repeatedly 1836. Id. at 834-37. Texans times, observer believes: one indignation expressed their over Mexico’s prosper- own zeal to maintain its its right deprivation by jury, of trial Texas quo, the ... establish- ous status arms, to bear and the to reli- ignore, repress, or attack ment tended to freedom, gious but free groups with different val- individuals and essentially unnoticed in all the literature uncompromising stance on ues This .... promoting explaining their cause. power structure of the Texas behalf Moreover, nothing in the historical rec- its own antithesis —a created Texans, then or ord establishes that either of iconoclastic strong, colorful tradition now, singularly uniquely de- have been By stifling a reasonable journalism. doubt, expression. free No our voted to dissent, the Texas establish- range of cher- Anglo-American earliest colonists forced individualist writ- ment have right. As the Mexican Commis- ished this and more more radical stands ers to Texas, y Manuel de Mier sioner to Don flamboyant rhetoric. Teran, Guadalupe President Victo- advised Indepen- Fighting foreigners McEnteer, “Among in these are ria 1828: Words: James (1992). laborers, xii-xiii vag- fugitives justice, honest from in dent Texas Journalists rebuff, speak I have a acquiesced on the soil of Texas[.] in the but invited 33. Houston anyone my to hear Sam Houston "who desires it with blood!" because I have watered there yonder speak me hence to hill- and will follow Marquis James, The Raven yon spreading live oak side under the shade of plurality’s authori- in find fault with the case Surely most Texans believe free analy- speech, development, of the time. But I or intent ty, at least most historical values, customs, irrelevant, “unique merely submit that not sis becomes citizens,” Davenport, and traditions of our positive of the critic’s constitutional proof 20, are, regard to free S.W.2d Surely our fundamental freedoms naivete. expression, legacy in fact the shared or “unfrozen” for some bet- are “evolved” heritage, American if not of the entire mod- ephemeral justices’ than ter reason five See, e.g., ern constitutional tradition. greater good. notion Our summons D. Roosevelt, case-by-case poor FRANklin State of Union is a substitute activism January (“In the future Message, of the means principled for a articulation secure, days, we which we seek make understanding by which our of fundamen- upon four look forward to a world founded change tal can with time. liberties freedom of essential freedoms. first is D. in the expression everywhere — world.”) language nothing I in the conclude Expression purpose of the Texas Free us to abandon the notion Clause authorizes interests, Finally, Davenport raises the notion of a accommodating competing as constitution, living stating: done, afford plurality has or even to balancing greater weight interests starting analysis [Historical expression than we under the an to would point. The constitution of our state is document, Amendment, pro In First as Justice Gonzalez organic [citation omitted] clause, understanding poses. the first with its way no must our of its Under abuse, I be in guarantees past. explicit be frozen in the Rath- reference to would er, expres concept give weight freedom of less our clined to even wording expansive continues to evolve over time. sion interests than the provides. One of the First Amendment charges Contrary 834 S.W.2d at 19. clause, argue which could that the second plurality, “forgotten” I have not Amendment, parallels closely so the First understanding can our constitutional Tucker, man parte 220 S.W. at Ex change, that the framers and ratifiers cf. We are not dates a more similar balance. apply great us one of our would not have however, past present required, to use way cir- freedoms the same to modern minimum Amendment doctrine as a First they might applied it to cumstances independent guarantee “floor” which our problems century ago. own Daven- interpreted to meet or exceed. must be example, referenced port, correctly contrary intimations to the Previous expression” new “forms of and “new meth- view, are, my sim opinions some of our infringing speech” examples ods Hanlon, 713 ply wrong. LeCroy v. See protec- requiring of new circumstances new (Tex.1986); Sax Vottel today’s plurality tion. id. But es- See (Tex.1983); er, see also 648 S.W.2d specifics, saying only that “we as chews all State, (Tex. 815 S.W.2d give effect to Heitman v. jurists are summoned to [the State, Crim.App.1991); Brown v. whenever terms Constitution’s] Thus, (Tex.Crim.App.1983).34 at 14. to S.W.2d threatened.” 859 S.W.2d “ notes, surely con- position again apparently Texas Forbears never '[o]ur asserted 34. This charter, suggested by that, Davenport, templated which the Court state that the fundamental constitutions, interpreting their own years rugged experience after on the crafted "may deny courts individuals the mini- state reflection on the con- frontier and molded after protection mandated the Feder- mum level of states, would itself veer in stitutions of other read, Literally Id. at 15. al Constitution." meaning Supreme each the United States time ” logical position sense. If our text was makes no (quot- issued a new decision.’ Id. at 16 Court people written at a different time different ing James C. Rights Harrington, The Texas Bill of concerns, protection then the it with different (1987)). 41 lesser, greater, the same as affords rights suggestion cannot that state bills of provided by provision The in the different Davenport liberty protection federal afford less than their United States Constitution. As itself

33 8 of Article Section pendent discussion our many difficulties with Given all, distinguishing simply articu- guarantee, jurisprudence it would be difficult Tucker, I Davenport precise meaning confidence. late its with such cases simple, attempt for a decline to make the prior Amendment restraint along First the trial compelling to me reason: regula- cases, place and manner from the meet constitutional court’s orders fail Only here. because tions at issue of the more familiar contours muster under considering state consti- of false construct Amendment. the First first, by this pronounced tutional issues necessary Davenport, it in has been Court IV. judgment in the justices join who for seven turning to the First Amendment In time-consuming separate, to write three case, I means avoid- this am no resolve opinions.35 fact, ing us. In while the issue before the 100-foot bans Relators assert request the fed- Relators relief under both demonstrating their under violate constitutions, they devote eral and state in three re- Constitution the United States barely percent of their briefs before this 15 (1) impermissibly restrictions spects: claims; pertains the rest Court to latter (2) speech; upon freedom of infringe argu- solely their First Amendment prior constitute an invalid inde- the restrictions Respondents ments. undertake no ism, counterparts independent state consti- confuses State Constitutional Emerging Law Issues in ”2 McCabe, 233, (1989); The State Supremacy Neil C. 236-37 tutionalism with the mandate Clause, Const, VI, 2, Religion De- and Federal Clauses: U.S. art. cl. that federal of Differences Kind, (1992); asserted, Thus, gree St. Thomas L.Rev. 49 rights, ignored. 5 this if not be in Hessinger, New case, & Mark Edward Steven J. Twist deny our Court could not relief to the Tyr- Where Law Ends and Judicial-Federalism: grounds without relators on state constitutional anny Begins, 3 State Constitu- considering properly pled Emerging federal consti- also Issues 173, (1990); Robert F. 185-87 safety tutional claims. But "federal net” is a Law tional Williams, Enforcing Methodological Problems in construct, increasing rejected by false now an 143, Rights, Constitutional 3 See, State Ga.St.L.Rev. e.g., State number of courts and scholars. Althouse, (1986-87); How to contra Ann 151 Smith, 681, (1986) (Ore- Or. P.2d v. 301 725 894 Sphere: Separate Federal Courts Build a gon require Constitution does not Miranda 1485, Power, (1987); 1491 State 100 Div., warnings); Employment Or. HarvL.Rev. Black v. 301 Brennan, Rights and the The Bill William 221, (freedom (1986) religion of 721 P.2d 451 of State Constitutions States: The Revival Constitution), Oregon narrower under vacated of Rights, 61 N.Y.U.L.Rev. Guardians Individual nom., Employment remanded sub Division 535, (1986); Douglas, G. Federalism Charles 550 Smith, 660, 1444, v. 485 U.S. 99 Constitutions, 143 13 and State Vt.L.Rev. Court, (1988); Superior L.Ed.2d 753 40 Serna Peterkort, (1988); Between Carol F. Conflict Cal.Rptr. Cal.3d 707 P.2d 793 Constitutionally Guaranteed and Federal State (1985) (California requires Constitution less Interpreta- Independent Rights: A Problem stringent speedy trial standards than federal Constitutions, 32 tion State Case W.L.Rev. Brill, counterpart); Jeffrey Amestoy & Julie Swindler, (1981); Minimum William F. Attorney State Constitutions General’s from Justice: Federal Constitutional Standards of Perspective: Schizophrenia, An Institutional Ceiling, and State Floor Mo.L.Rev. Emerging State Constitutional Issues Law (1988); Ronald Collins & Peter J. Ga- K.L. recog- today's opinion Fortunately, plurality lie, Post-Incorporation Re- Models Judicial judiciary may independent state nizes that “an interpret Survey State Constitutional Indi- view: 1985 affording less law as its fundamental Decisions, Rights vidual U.Cin.L.Rev. protection than our federal charter." Devlin, (1986); John M. State Constitutional Au- Regardless conclusions of what 13. tonomy Rights Age in an Federal Retrench- cases, recognition or other this we reach Thoughts Interpretation ment: Some on the principled possibility state will enhance Sources, Rights State Derived Federal from development. constitutional Emerging State Constitutional Issues Law Galie, (1990); "rely insisting litigants J. Constitu- courts and Peter Modes instance,” Interpretation: id. at tional The New York Court constitution in the first the state Role, unnecessary rigidity into Appeals’ builds Search the Court Emerging Issues (1991); decision-making process. Just as we do not 227-28 our State Constitutional Law Linde, be- all contract claims be considered Hans A. Does the "NewFederalism" Have insist that claims, Future?, accompanying I see no need fore tort Emerging Constitutional State Issues Maltz, (1991); liti- artificial construct in constitutional Earl M. for the gation. Law Dynamic Political the "New Judicial Federal- 34 Center, McMonagle, 939 Inc. v.

restraint; (3) Women’s term “demonstrat- Feminist (3rd Cir.1991); Portland ing” unconstitutionally vague it has F.2d 57 as v. Advocates Health Center Women’s applied in been this case. Cir.1988); Pro- (9th Life, 859 F.2d 681 expressive undisputed It is that the activ- v. New York Choice Network Western engaged, ities in which Relators were Rescue, Project F.Supp. 1417 799 “praying,” characterized as whether Atlanta, City v. Hirsh (W.D.N.Y.1992); “preaching,” “demonstrating,” pro- or are Planned (1991); 401 S.E.2d 530 261 Ga. the First Amend- “speech” tected under Cincinnati, v. Inc. Parenthood Ass’n of ment, federally protected and thus are also Jericho, 56, 556 Project 52 Ohio St.3d against infringement by virtue of state SHARE, 721 (1990); Bering v. N.E.2d 157 process clause of the Fourteenth due 918; Thompson Dept. v. Police P.2d Likewise, undisputed Amendment. it York, New Misc.2d 546 N.Y.S.2d 145 public streets and sidewalks where (N.Y.Sup.1989). 945 long have been these activities occurred “time, “prong” the first “public purposes of First Under deemed fora” Frisby v. analysis, courts have analysis. place, and manner” See Amendment Schultz, 479-81, consistently held restrictions similar 108 S.Ct. 487 U.S. (1988); challenged “content-neu 2495, 2499-2500, ones here to be 101 L.Ed.2d 63; Grace, McMonagle, 171, 177, 939 F.2d at See tral.” United States v. 461 U.S. Terry, 886 F.2d New York State NOW v. 1702, 1706, (1983). 103 S.Ct. 75 L.Ed.2d denied, Cir.1989), cert. (2nd 1363-64 In a forum: neutral, ticular communication. Additional ed: the able restrict such as an absolute serve a [T]he long ^[3] time, government’s type leave as the restrictions government may expressive significant government ^[2] place, open are and manner alternative narrowly tailored to conduct is ability prohibition enforce reason- ^[1] will be permissibly restrictions channels of regulations are content very on a interest, upheld limit- par- Fargo Women’s Pro-Life Inc. v. Lambs Health 457 N.Y.S.2d Bering, 495 U.S. 533; Choice Portland Feminist Women’s (1990); Project Network, Hirsh, (N.D.1992); Center, Counselling, P.2d at Jericho, 110 S.Ct. 488 N.W.2d Christ, Health 925; F.2d at (1982). F.Supp. at A.D.2d Inc., Parkmed Co. N.E.2d at 401 S.E.2d Organization, The orders 686; 1432-33; L.Ed.2d Pro- 162; at v. only: narrowly accomplish regulate if here drawn compelling government interest. might [W]here, and how Relators] [the say. [they] might not what (internal Id. at 103 S.Ct. at 1707 cita- make no challenged sections ... see omitted); quotation tions and marks of abortion Racism, mention whatsoever Against also v. Rock Ward issue_ fact, 2746, 2753, substantive 781, 790-91, [re- U.S. apply equally to straining could orders] L.Ed.2d 661 supported abortion protests which It is clear under federal law that opposed abor- protests which well as to imposed restrictions in this case were an indeed, tion, protests supporting or “time, attempt place, and manner” at a opposing any cause. prohi- restriction rather than an “absolute Clearly, they McMonagle, expression” 939 F.2d at 63. particular type bition on See, remaining e.g., Northeast are content-neutral.36 Under prior restraint. however, proven created persons argue, [to] because the those [were] 36. Relators intimidation"); Ter- restraining targeted only persons identi- ... a threat of violence orders Hirsh, 1363-64; movement, ry, 533; 401 S.E.2d "pro-life” the orders 886 F.2d at fied with the were, 162; Jericho, Bering, context, Project “pro-life” 556 N.E.2d aimed at the mes- 926; Palmer, 874 F.2d sage, 111 P.2d at Medlin and are thus not "content-neutral.” This cf. (5th Cir.1989) (ordinance prohibiting rejected argument explicitly num- has been in a amplifiers McMonagle, within 150 feet use of hand-held ber of the cases cited above. See (court restric- applying only pro- was not content-based order medical facilities 939 F.2d at 63 “only pro-life where protesters tion of demonstrators’ life not "content-based” because

35 time, (restriction 72 place, McMonagle, manner 939 F.2d at elements of the See test, protesters carefully only 500 required allowing we are to balance 6-8 within Bering, 721 P.2d property); to feet of clinic the interests the orders are intended (restriction 922-24, barring demonstra- protect pre- vindicate with the need 931 to “uninhibited, robust, along building); of clinic see tions front serve the wide- — Freeman, -, U.S. open” also Burson v. debate that the First Amendment 1856-57, -, 1846, 119 Sullivan, S.Ct. envisions. New York Times v. (1992)(upholding banning L.Ed.2d 5 statute 710, 720, U.S. S.Ct. campaign litera- display or distribution of (1964). L.Ed.2d This true when even ture of votes within 100 individuals, affairs, and solicitation private and their are polling place; feet of Court not view unwittingly unwillingly pulled “d[id] into the question whether the 100-foot bound- fray. See, e.g., Frisby, 487 U.S. at question ary tighter as a line could be (analyzing place S.Ct. at 2499 restrictions Reducing constitutional dimension. picketing); Mississippi on residential cf. boundary to feet a difference [was] McMillan, 866 Women’s Medical Clinic v. degree, not a least restrictive alternative (5th Cir.1988)(refusing F.2d to 795-96 kind.”); Barry, 485 U.S. Boos anti-pick- hold trial court’s refusal to issue 1157, 1168, 108 S.Ct. 99 L.Ed.2d 333 eting injunction against an pro-life forces (1985) per- (upholding portion of ordinance discretion). pa- long abuse of So as clinic mitting picketers no more than 3 within 500 access, tients and staff are ensured Louisiana, embassy); feet of Cox v. possibility mere unwilling that these listen- U.S. 85 S.Ct. 13 L.Ed.2d 487 might find protesters’ message ers (1965) (upholding banning demon- statute distasteful, presence upsetting, or disturb- strating applied “near” a courthouse ing is not justify alone sufficient to a re- taking protest place away); 101 feet but striction on under the First Hirsh, (provision see S.E.2d at Ordinarily, Amendment. “to avoid further permitting order small number of demon- sensibilities,” bombardment of un- [their] strators within 50-foot demonstration-free willing plaintiffs listeners like the are here necessary zone to ensure that ade- “simply eyes.” their Erznoz [to] avert[] quate means of communication alternative Jacksonville, City nik v. 422 U.S. available). were 2268, 2273, 45 L.Ed.2d 125 however, agree are, I would with Justice Gonza There related difficul- two First, lez that the support challenged partic- interests advanced in ties in the orders. orders, challenged clinic patients’ ularly respect applicable order Parenthood, to an abortion and the clinic owners’ other than Planned clinics engage activities, lawful are nothing concerning there in the record “significant” time, least purposes layouts of the physical numerous clinics place, and manner analysis. respective property While this relation lines, Court in its parte Henry 1948 decision Ex lines property in relation to roads, struck place down 100-foot restriction or the features of the sidewalks Amendment, under First might I none areas in which the clinics were located. hold, strength Clinic, theless inclined to Fargo Women’s Health recent precedent, points out, more federal 409. As the plurality a N.W.2d at is, demonstrating 100-foot evidently restriction clinics covered this order were things being equal, sufficiently surroundings nar located in such diverse .rowly advancing high-rise buildings. tailored means of these In attempting office open adequate apply, interests would leave in the name administrative conve- nience, alternative channels communication. set of restrictions to such blanket language nothing trespass con- ordinance said about voke laws over areas not "content neu- amplified speech); tent of Thomason v. pro-life protesters tral" where were source sole cf. Jemigan, F.Supp. problems precipitated city’s of tion). traffic ac- (E.D.Mich.1991) (city’s vacation of cul de sac to permit clinic abortion in order to to in- clinic clinics, safety any patient gers the health and variety a wide the trial court clinics; employee” careful, fact-specific overlooks the balanc- ing required intimidating physi of interests under the First “Harassing, or Further, doctor, by failing pro- any pro care cally abusing Amendment. health member, fessional, staff or em any concerning the sur- or other vide information clinics, ployee who assists in the or volunteer roundings and location of individual any facility; provision of services” propriety way judging have no we take, in any the 100-foot restriction each location man “Attempting to or adequate directing, provisions inducing, encouraging, whether such ensure aid ner any of ing, abetting or others to take” alternative channels of communication. Amendment, actions. it is above id. Under the First See seeking responsibility parties state- Hence, even the 100-foot restric- without expressive imposed place restrictions on ac- tions, guarantee physical access the orders tivity to adduce evidence from which patients and staff free of harass- for clinic courts, appellate if neces- trial court—and Further, ment, violence, or intimidation. parties sary wish- ascertain whether leaving person seeking access to or each —can ing express may adequately 25-foot, themselves the clinics is afforded a demonstra- date, themselves heard. make tion-free bubble around them. To upheld expan- only one court has such an Second, plurality and concur- both included in an place sive restriction when re- point rence out in the course of their order, challenged today, con- like the ones spective analyses of Relators’ Texas free protections for taining variety of other claims, speech clause there are a number of patients McMonagle, staff. clinic See orders, chal- provisions (restriction allowing 6-8 939 F.2d at 71-73 Relators, lenged by designed to effectuate proper- within 500 feet of clinic protesters the interests that Plaintiffs assert. In ad- Network, 799 ty); compare Pro-Choice restriction, dition to the 100-foot the orders 1434-35, (upholding 15- F.Supp. at prohibit: of order place restriction in context foot on, in, “Trespassing sitting blocking, virtually to those with structure identical to, impeding obstructing in or access case).39 this gress egress into from” the clinics or or accordingly hold that Plaintiffs I would lots;37 parking clinic chal- to demonstrate that the have failed “Demonstrating twenty-five within sufficiently lenged 100-foot restrictions are (25) any person seeking feet of access to open adequate narrowly tailored and leave leaving” parking or the clinics or their channels of communication alternative any way impeding per lots “or such Amendment. pass muster under the First or son’s ... entrance to exit from lots;” parking clinics or V. “Physically abusing, grabbing, in closing, pause briefly respond I Before timidating, harassing, touching, pushing, dissenting opinion’s arguments that shoving, crowding persons entering or or properly should be dis- Relators’ claims at, leaving, working using any servic of the so- pensed with under some version clinics;38 es” at the pro- like called “collateral bar” rule Supreme Making pounded by sound or noise “that is the United States disturbs, injures, City Birmingham, or endan- so loud that it Court Walker persons entering additionally preceding Parenthood order and the one it to 37. The Planned prohibited invading, entering "physically with- exiting intervening businesses. consent, damaging” facility out of that [and] Further, parking prohibited lots. it its structing "Ob- Cox, example, the 100-foot 39.In Burson and interfering any way provision challenged in the bans were the sole pedestrian or vehicle traffic" entrance or exit to or Barry, U.S. at restrictions. See also Boos v. from the street in front of the clinic. 38. The Planned Parenthood order also extended provision protections described under this 1829-32, corresponding guarantees have read 315-21, courts 388 U.S. S.Ct. Constitution. United States ignore I cannot L.Ed.2d 1210 per practice long-established Texas however, manner Unfortunately, for the viola mitting litigants imprisoned exercised state courts have which some speech to restricting tion of court orders has led some commentators authority constitutionality of those or challenge the guarantees as state constitutional view See, through proceedings. habeas ders result-ori- vehicle for merely a convenient Pierce, parte Tex. e.g., Ex cit- See authorities pronouncements. ented denied, (1961), cert. U.S. at 38 n. Davenport, 834 S.W.2d ed at 928, 1650, parte Ex 6 L.Ed.2d 388 (Hecht, J., concurring). recent writ- Our Tucker, 588; parte Henry, 215 S.W.2d Ex have also ings expression area in the free 75; parte 220 S.W. see also Ex McCor dispel this From the little to notion. done 104; Foster, mick, Ex 71 parte 88 S.W.2d Davenport to the unseemly chauvinism S.W. of to- blatantly partisan factual recitation however, plurali agree, I with do appear that day’s opinion, it would plurality suggestion that ty’s wholly unsupported as little our Constitution some see Texas federal-style failure to follow the Texas’ a handy grab bag filled with than “a more is bar rule attributable collateral may exploited” to clauses that be bevy of greater “importance attached supposedly goal.” particular social “some achieve in our state’s to freedom of Collins, on Reliance State Ronald R.K. 2. A num jurisprudence.” 859 S.W.2d at Away Reaction- From a Constitutions — states, Texas, permit like have Hastings ber of other L.Q. 1, 2 ary Approach, 9 Const. via ted collateral attacks court orders “expansive (1981). If I an have authored None, proceedings. in or similar habeas every writing from each ... dissent cluding some deem free Davenport, 6 S.W.2d underpinning of” some re clauses to broader at least opinion so -, is it is because Amendment, spects than the First have error, so flawed perforated with constructs expansive a linked the notion of more methodological frame- foundation speech clause their refusal to follow do, indeed, I future decisions. work for 68 Berry, collateral bar rule. In re Court, See writing by this over such a “fret” 137, 279-82, Cal.Rptr. 273, 436 65 Cal.2d fervently hope and I 859 n. (Cal.1968); P.2d see also Wood this efforts in area subsequent that our Goodson, v. Ark. 253 485 S.W.2d case, For prove will more substantial. (1972); Superior ex. rel. State Court Amendment guarantees First v. 483 P.2d Sperry, Wash.2d provide Constitution to the United States denied, (1971), cert. S.Ct. Relators, U.S. rely I sought all relief Newspapers, L.Ed.2d 252 Phoenix authority in the to concur solely on Court, Superior Ariz. Inc. discharged. remain judgment that Relators P.2d

CORNYN, J., opinion. joins in this VI. commitment to state con- The revitalized APPENDIX impor- most has been one of the

stitutions developments of our jurisprudential tant FREE OF STATE COMPENDIUM generation. Contrary repeated insin- CLAUSES SPEECH plurality, question I neither uations of the ALABAMA obligation our power nor the Court national, state, apply as well constitu- guarantees to the claims before us. tional 14, 1819) (effective Dec. Moreover, con- application our of the state may freely controlled, Every citizen 8: or even Art. stitution need not be § write, publish his sentiments informed, by past how or current federal prosecutions Art. That in 13: § publication papers investigating the offi- being all subjects, responsible for officers, public cial conduct of or men liberty. of that abuse capacity, published the matter when VI, prosecutions Art. 14: In for the proper information, public the truth publishing papers investigating the offi- given evidence; thereof and that public cial men in conduct officers or jury in all indictments for libel shall capacity, published or when the matter have the to determine the law and the information, proper the truth facts under direction court. evidence; given thereof and in libels, the jury indictments for shall (effective 28, 1901) (present) to determine the law and the Nov. facts, under the direction courts. I,Art. That no 4: law shall ever be passed or restrain to curtail press; any person or of the (effective 21, 1861) Mar. write, may speak, publish and his senti- provisions. Same as 1819 subjects, being ments on all responsible for liberty. the abuse of that (effective Sept. 30, 1865) I, prosecutions Art. That in 12: all for § I, 5: every may freely Art. That citizen publication papers libel or for § inves- write, speak, publish and his sentiments on tigating the official conduct of officers or subjects, all being responsible for public capacity, men in or when the matter that liberty. abuse of published information, public for proper is evidence; may given the truth be thereof I, prosecutions Art. 13: That in for the § libel, and that in all indictments for publication papers investigating the offi- jury right shall to determine the cial conduct of public officers or men in law and under the the facts direction capacity, published or when the matter is court. information, proper public for the truth evidence; may given thereof be and that ALASKA libels, jury all indictments for shall right have the to determine the law and the (effective 3, 1959) (present) Jan.

facts, under the direction court. I, Every person may freely Art. 5: § speak, write, publish subjects, and on all (effective July 1868) being responsible for the abuse I, may speak, Art. 6: That citizen § right. write, publish his sentiments on all ARIZONA being subjects, responsible for the abuse of liberty. I, prosecution Art. 14: That in (effective 14, 1912) for the (present) § Feb. publication of papers investigating the offi- II, may Art. Every person freely 6:§ officers, cial conduct of men in public write, speak, publish subjects, on all capacity, published or when the matter is being responsible for the of that abuse information, proper public for the truth right. may given evidence; thereof and that ARKANSAS libel, all indictments for the jury shall have the determine law and the facts under the direction of the court. (effective 15, 1836) June II, printing-presses Art. 7: That shall § (effective 6, 1875) Dec. person; every be free to and no law shall I, Art. 5: Same rights as Art. ever be made restrain the thereof. § § II, press

Art. 6:§ The free remain inviolate. shall forever thoughts free communication of thoughts opinions is communication opinions one is of the invaluable man; all rights of one of the invaluable freely man; every speak, citizen re- print any subject being publish write and persons may freely write and — liberty. sponsible for the abuse of that being responsi- subjects, on all sentiments II, prosecutions pub- right. 8: In Art. of such ble for abuse papers investigating the official lication of the truth prosecutions for libel criminal capaci- public or men in conduct officers and, jury; given in evidence to may be published proper ty, matter or where the that the matter appear jury if it shall information, thereof the truth true, pub- and was charged as libelous evidence; in all indict- given in justifiable good motives and lished with libels, jury have the ments for shall charged acquitted. ends, party shall be the law and the facts. to determine CALIFORNIA (effective 1, 1861) June provisions. Same (effective 9, 1850) Sept. 1864) Every may freely (effective citizen Apr. Art. 9:§ publish his sentiments write and II, printing-presses 7: shall Art. That being responsible all subjects, every person; and no law shall rights made restrain thereof. ever be the right; that and no law shall be abuse of thoughts The free communication of and abridge liberty the passed to restrain or rights opinions is one the invaluable press. In all criminal speech or of the man; may freely speak, every and citizen libels, for the prosecutions or indictments print, any subject being re- write and — jury; to the may given be evidence truth sponsible liberty. for the abuse the appear jury to the if it shall and II, 8: prosecutions pub- Art. In for the § true, charged is and was as libellous matter papers investigating lication of the official justifi- and for published good with motives public capaci- men conduct of officers or ends, acquitted; and party the shall able be ty, published proper matter is or where the right the to determine jury the shall have information, for public the truth thereof law and the fact. the evidence, may given in and in all indict- be libels, jury ments for the shall have the the to determine the law and facts. (effective 7, 1879) May (effective 22, 1868) June I, may freely Every Art. 9: citizen § write, liberty press speak, publish 2: the shall his sentiments on

Art. and § remain The free commu- forever inviolate. being responsible for the subjects, all thoughts is opinions nication of one no law shall be right; of that abuse man, per- the invaluable and all abridge liberty or the passed to restrain publish may freely speak, write and sons press. In all criminal or subjects, being on all re- sentiments libels, may be prosecutions for the truth right. sponsible for the of such abuse if jury; and it shall given in evidence to libel, prosecutions all for the truth criminal charged matter jury that the appear jury, may given in evidence to the and if be true, published as libelous appear jury, it that the matter shall ends, true, motives, pub- good justifiable for charged as libellous is and was good motives, justifi- for lished with acquitted; jury shall party shall be ends, party acquitted. able shall be determine the law and found, or information Indictments fact. (effective 13, 1874) laid, newspapers, shall publications (present) Oct. for

related information has been disseminated includes, to, notes, not limited all be the county tried in such newspa- where outtakes, photographs, tapes other or data pers publication office, have their inor of whatever not sort itself disseminated to county alleged the party where to be li- public through a medium of communi- beled resided at the alleged time cation, published or whether informa- publication, place unless the of trial shall upon tion based or related to such material changed good for cause. has been disseminated. Present COLORADO (1879 3, 1980) as amended June 2(a): Every may

Art. freely (effective citizen 1, 1876) § Aug. (present) speak, publish write and his sentiments on II, Art. 10: That shall no law subjects, being all responsible passed impairing speech; freedom right. abuse of this A law not re- every person shall be free abridge strain or press. or write, publish or any whatever he will on subject, responsible being abuse of I, 2(b): Art. publisher, editor, A report- that liberty; prosecu- and that all suits and er, person or other with or connected em- libel, tions for truth thereof ployed upon newspaper, magazine, or evidence, given in jury, and the under the periodical publication, other press court, direction of the shall determine the service, any person association or wire law and the fact. who has so or employed, been connected adjudged shall CONNECTICUT contempt not be by a judicial, legislative, or body, administrative 1776' any body having power (effective 1776) Aug. issue subpoenas, refusing to disclose Para. 2: And be it further enacted and procured source of information declared, That no Man’s Life shall be taken while so employed publica- connected or away: good No Man’s Honor or Name tion in newspaper, magazine or other shall be stained.... periodical publication, refusing or for to unpublished disclose any information ob-

tained prepared gathering, or receiving (effective 1818) Nov. processing or for information communi- I, Every may freely Art. 5: citizen § public. cation to the speak, write, publish and his sentiments on Nor shall radio or television news re- subjects, being all responsible for porter person or other connected with or liberty. abuse of that employed station, aby radio or television or I, passed Art. 6: No law shall be ever § any person who has been connected so or speech to liberty curtail or restrain the employed, adjudged so contempt be for press. or of the refusing any to disclose the source infor- I, prosecutions Art. all or 7: In indict- § procured mation while so connected or em- given may ments for the truth be libels ployed news or commentary pur- for news evidence, jury and shall poses television, on radio or for refusing or facts, to determine the law and the under any unpublished disclose information ob- the direction of the court. prepared tained in gathering, receiving processing of information for communi- public. cation to the (effective 1, 1955) Jan. subdivision,

As “unpublished used in this I, Art. Every may 5: freely citizen § information” includes information speak, not dis- publish write and his sentiments on public person seminated to from all subjects, being responsible for the sought, whom is disclosure liberty. whether or not abuse of that I, (effective passed 1897)(present) Art. 6: No law shall ever be June § liberty to curtail or restrain the I, press Art. 5: The be free shall § press. or of the every undertakes to examine citizen who I, prosecutions 7: In indict- Art. all acting in § of men the official conduct libels, may given in ments for the truth be may print public capacity; any citizen evidence, jury and the shall have the being responsible for the any subject, on facts, under determine law prosecutions In for liberty. of that abuse the direction of the court. investigating proceedings publications, officers, published the matter or where information, proper the truth (effective 30, 1965) (present) Dec. evidence; may given in thereof be I, 4, 5, I, as Art. Art. and 6 same §§ §§ may jury indictments for libels the de- all and 7 law, termine the facts and the as in other DELAWARE cases. FLORIDA 1776* (effective 20, 1776) Sept. Rights Declaration and Fundamental (effective 3, 1845) Mar. Rules, Liberty 23: That the Press § I, every may freely Art. 5: That citizen § ought inviolably preserved. to be sentiments, write, publish his subjects, being responsible (effective 12, 1792) June liberty; of that and no law shall ever abuse press Art. 5: The shall be free to curtail, passed abridge, or restrain every citizen who undertakes examine press. or of the acting the official conduct of men in a prosecutions and Art. 15: That in all public capacity; may print citizen given indictments for the truth libel any subject, being responsible for the evidence; and, appear if it shall liberty. prosecutions abuse of that true, published jury that the libel is publications investigating proceedings motives, ends, good justifiable and for officers, published or where the matter justification; and the the truth shall be a proper public information, the truth judges jury shall be the of the law given evidence; thereof and in facts. libels, all indictments for jury may de- law, termine the facts and the as in cases. (effective 1861) Apr. provisions. as 1838 Same

(effective 2, 1831) Dec. I, press Art. 5: The shall be free to § (effective 7, 1865) Nov.

every citizen who undertakes to examine I, every may freely Art. That citizen 5:§ acting the official conduct of men in a write, publish on and his sentiments public capacity, any may print and citizen subjects, being responsible for any subject, on being responsible such for liberty; that and no law shall be abuse of liberty. prosecutions of that In abuse curtail, passed abridge, or restrain the publications investigating proceed- speech press. liberty or of the officers, ings pub- or where the matter information, proper I, lished is prosecutions Art. 15: That in all and § may evidence; libel, given may giv- truth thereof be truth indictments for be and, evidence; and in all indictments jury appear for libels the en in if it shall to the may law, true, jury published determine the facts and the as in that the libel is and motives, ends, other cases. good justifiable and for press LXI: Freedom of the and trial Art. by jury to remain inviolate forever. justification; and the the truth shall be a and jury judges shall be the of the law

facts. (effective 6, 1789) May IV, press and Art. 3: Freedom of § jury trial shall remain inviolate. (effective 4, 1868) July I, Every may fully 10: citizen Art. § 30, 1798)

speak (effective on all sub- May and write his sentiments jects, being responsible for the abuse of IV, press, Art. 5: Freedom of the § passed to right, no law shall be in this by jury, trial as heretofore used liberty speech abridge restrain or inviolate; State, and no ex shall remain prosecutions press. In all criminal passed. post laws shall be facto may the truth be civil actions for libel jury, and if it given in evidence to the shall (effective 1861) Aug. charged appear the matter as libellous true, good published from mo- but was I, thought Art. 8: Freedom § tives, acquitted or exon- party shall be speech, and freedom of opinion, freedom of erated. political press, are inherent elements of may freely liberty. every But citizen while subject, he print, any on speak, write and (effective 1, 1887) June responsible for the abuse of that shall be I, fully Every person may Art. 13: liberty. speak and write his sentiments on all sub- 1865 jects, being responsible for the abuse of 1865) (effective Dec. passed right, and no shall be laws abridge I, speech, free- restrain or Freedom of Art. 6:§ press. prosecutions press, all criminal inherent elements of dom of the are every the truth political liberty. and civil actions libel But while citizen given jury, print any and if it shall may freely speak evidence or write or charged libellous appear responsible that the matter for the subject, he shall be true, published good but was mo- liberty. abuse tives, party acquitted shall or exon- erated. 25, 1868) (effective June free- Art. 9: Freedom of (effective 1, 1969) (present) Jan. inherent elements of press dom of the are every political liberty. But while citizen person may speak, Every Art. 4:§ write, print freely speak, or publish his sentiments on all write responsible for the subject, he shall be responsible for the subjects but shall be liberty. abuse of right. No shall abuse of that law abridge liberty of passed to restrain or I, prosecutions or indict- Art. 19: In all § speech press. In all criminal or of the may given in the truth be ments for libel prosecutions and civil actions for defama- evidence, jury shall have the and the If may given tion the truth be evidence. and the facts. to determine the law charged defamatory is true the matter motives, good published and was 1877) (effective Dec. acquitted or exonerated. party shall be I, 1, para. No law shall ever Art. 15: § GEORGIA curtail, restrain, liberty passed to or be 177f may press; any person speech, or of the sentiments, write, (effective 5, 1777) publish his speak, and Feb. and, evidence; appear if it shall to the trier charged the matter as libelous of fact that subjects, being responsible all true, discharged. party shall be is liberty. abuse of that HAWAII I, 2, para. prosecutions Art. 1: In all or § mo" may given indictments for libel the truth be (constitutional (effective 8, 1840) mon- Oct. evidence; jury in all criminal and archy) cases, judges shall of the law and be rights, rudimentary bill of but Contains Judges to power the facts. The of the speech provisions. specific no conviction, grant new trials cases of preserved. 1852" (constitutional (effective 14, 1852) June monarchy) (effective 1945) Dec. may freely speak, All men write Art. Ill: I, 1, para.

Art. 15: No shall ever publish law on all sub- and their sentiments § curtail, passed liberty jects, being responsible for the abuse of or restrain right; passed no law shall be and speech, press; any person may or of the abridge liberty speech, or restrain or sentiments, speak, publish write and his press. of the subjects, being responsible all liberty. abuse of that 1864** (effective 20, 1864)(eonstitutional Aug. I, 2, para. prosecutions Art. 1: In all or § monarchy) may given indictments for libel the truth evidence; may freely speak, All men write jury Art. Ill: in all criminal all publish their sentiments on sub- cases, judges shall be the of the law and jects, being responsible for the abuse power judges facts. The of the right, and no law shall be enacted trials, grant conviction, new in cases of liberty speech, of the restrain the preserved. press, except may be neces- such laws sary protection Majesty of His for the King Royal Family. (effective 1, 1977) Jan. I, 1, para. 1887** Art. 4: Same as Art. § § (effective 7, 1887)(constitutional July mon-

para. 15 archy) I, 1, para. prosecutions Art. 8: In all may freely speak, Art. Ill: All men write may given indictments for libel the truth publish on all sub- their sentiments evidence; jury and the in all criminal jects, being responsible for the abuse cases, judges shall be the of the law and right, no law shall be enacted to power judges the facts. The liberty speech, restrain the grant new trials case of conviction is press. preserved. 1894** (effective July 1894)(Republic)

(effective 1, 1983) July (present) freely speak, Art. Ill: All men write all publish their sentiments on sub- 1, para. Art. 5: No law shall be enacted to re- jects; and no law shall be passed to curtail or restrain the freedom of press; or of the strain press. Every person may or of the responsible persons shall be for the write, publish sentiments on all Provided, however, right. abuse of such subjects responsible but shall be for the Legislature that the enact such laws liberty. of that abuse necessary, pre- to restrain and may be I, 1, para. Art. 6: In all civil or criminal publication public or utterance of vent § libel, given language. for may actions the truth be indecent or seditious determining right of both

shall have the fact, of and the under direction the law court, as in other cases. (effective 21, 1959) Aug. I, Art. 3: shall enacted No law be § 1, 1848) (effective Apr. respecting religion an or establishment XIII, printing-presses 23: The Art. § thereof, prohibiting the free exercise or every person under- shall free to who be abridging the freedom of or of the proceedings to examine the takes right people peaceably press, or the of the assembly, govern- general any branch petition government and to assemble ment; ever made to and no law shall be grievances. for a redress of right thereof. The free com- restrain the thoughts opinions Present munication of and is one man; rights every of the invaluable and (1959 1978) as amended Nov. write, print may freely speak, and citizen I, enacted Art. 4: No law shall be § being responsible any subject, for the respecting religion, or an establishment of liberty. abuse of that thereof, prohibiting the free exercise XIII, prosecutions for the Art. 24: In § abridging speech or of the the freedom of investigating papers the offi- publication of press right people peaceably or the officers, acting or of men cial conduct of government petition to assemble and to pub- capacity, or the matter public when grievances. for redress of information, the proper public lished evidence; given in truth thereof IDAHO libels, jury and in all indictments for determining both shall have the (effective July 1890)(present) fact, and the under the direction the law court, in other cases. I, person may freely Every Art. 9:§ speak, publish subjects, write and on all being responsible for the of that abuse (effective 8, 1870) Aug. liberty. II, person may freely Every 4: Art. §

ILLINOIS write, publish subjects, on all being responsible for the abuse of that libel, civil liberty; and in all trials for both (effective 3, 1818) Dec. criminal, truth, published when ends, justifiable good with motives and VIII, printing-press- Art. 22: That the a sufficient defense. shall be person every es shall be free to who under- proceedings takes to examine the general assembly any gov- or of branch (effective 1971)(present) July ernment; no law ever made to shall persons may speak, All write Art. 4:§ The free com- restrain the thereof. being responsible for publish freely, thoughts opinions is one munication of libel, liberty. In trials for of that abuse man, every of the invaluable truth, criminal, the when both civil and write, may freely speak, print citizen good justifi- published motives and any subject, being responsible for the ends, a sufficient defense. able shall be liberty. abuse of INDIANA VIII, prosecutions for the Art. 23: investigating publication papers the offi- (effective 11, 1816) Dec. officers, acting conduct of or of men cial pub- public capacity, printing-presses or where the matter That Art. 9:§ information, proper every person under- lished is shall be free to who given proceedings in evidence. examine the truth thereof takes to government; jury legislature, indictments for branch And libels KANSAS and no shall ever be made restrain law right (effective 29, 1861)(present) thereof. The free communication Jan. thoughts opinions is one of the of and liberty Rights, Bill 11: The of § man; every citizen rights invaluable and inviolate; persons press and all shall be write, print any

may freely speak, write, and on may freely speak, publish or being responsi- subjects, all sentiments on subject, being responsible for abuse right; and in all for the of such ble abuse liberty. that libel, for the truth civil or criminal actions I, publi- prosecution Art. 10: In for the § given jury, and if may in evidence to the be papers investigating cation of the official appear alleged libellous it shall officers, public conduct of or men in a ends, published justifiable for matter was is capacity, published or where the matter party acquitted. the accused shall be information, proper public the truth for the KENTUCKY evidence; and, may given thereof be libels, jury all indictments for shall 1, 1792) (effective June right have a to determine the law and the XII, 7): (para. printing- Art. That the court, facts, under the direction of the as in presses every person free to who shall be other cases. proceedings undertakes to examine the any govern- legislature or branch of ment, and no law shall ever be made to (effective 1, 1851)(present) Nov. right thereof. The free com- restrain the I, passed Art. 9: No law shall be re- § thoughts opinions and munications of straining interchange thought man, rights one of the invaluable write, opinion, restricting right every may freely speak, or citizen subject, being responsible for print any on write, print freely any subject liberty. the abuse of whatever; right but for the abuse of that every person responsible. shall be XII, 8): prosecutions In (para. Art. papers, investigating the of- publications of libel, Art. prosecutions 10: § public men in ficial conduct of officers or alleged the truth of the matters to be libel- capacity, published the matter or where may given lous justification. be information, truth proper public may given in And in thereof evidence. IOWA libels, jury shall all indictments have a to determine the law and the court, facts, the direction of the under (effective 28, 1846) Dec. other cases. Every person may speak, Art. 7:§ write, publish his sentiments on all (effective 1, 1800) Jan. subjects, being responsible for the abuse of X, printing-presses Art. 7: That shall right. passed No law shall be to re- every person who undertakes to be free to abridge speech, strain or proceedings legislature examine the press. prosecutions In all or indict- any government, and no law branch libel, given ments for the truth made to restrain the shall ever be jury, appear evidence to the and if it thereof. The free communication jury charged that the matter as libellous thoughts opinions is one of the invalu- true, published good and was man, every able citizen ends, justifiable party motives and shall write, freely speak, print sub- acquitted. ject, being responsible for the abuse of that liberty. X, prosecutions pub- Art. 8: In for the (effective Sept. 1857)(present) papers investigating lication of the official provision. Same as 1846 conduct of officers or men in a ca- prosecutions for Rights,

Bill of 9:§ investigating of publication papers published pacity, or where the matter of officers or men in official conduct information, proper public the truth for pub- or the matter public capacity, where given may thereof in evidence. And in be information, public for proper lished libels, jury shall all indictments evidence; may given in be truth thereof law right have a to determine the and the jury for libel the and in indictments all court, facts, of the under direction right the law shall to determine other cases. facts, under the direction of and the court, in other cases. (effective 1, 1851) Jan. LOUISIANA XIII, printing-presses

Art. 9: That § who every person shall under- be free (effective 30, 1812) Apr. proceedings takes examine the VI, be Printing-presses 21: shall Art. § general assembly, any govern- of or branch every person undertakes to free to who ment, and no law shall ever made proceedings legislature, of examine right The free com- restrain the thereof. no government; and any branch of the thoughts opinions is one munication of and right restrain the law ever be made to shall man, rights every and invaluable The free communication thereof. write, may freely speak, print and citizen thoughts opinions is one of the invalu- and any subject, being responsible on for the every man, citizen able and liberty. abuse of that write, print any sub- freely speak, and responsible the abuse of that ject, being XIII, prosecutions Art. 10: In for the § liberty. publication papers investigating the offi- in public cial or men conduct of officers published is capacity, or where the matter (effective 25, 1846) Jan. information, proper truth VI, press shall be Art. 110: The Title evidence; given in and in thereof speak, Every may freely free. citizen libels, jury shall all indictments write, publish on all and his sentiments right have a to determine the law being for an subjects; responsible abuse facts, court, as in under direction liberty. other eases. 15, 1853) (effective Jan. (effective 1, 1892)(present) Jan. VI, VI, Art. Art. as Title Title 106: Same are, by Bill 1: men na- Rights, All § ture, equal, have certain in- free and among rights, herent and inalienable which (effective 1861) Mar. may be reckoned: provision. Same as 1852 freely Fourth: The communicat- (effective 1868) July ing thoughts opinions. free; press Art. 4: shall be Title presses Rights, Printing Bill 8: shall write, may freely speak, every citizen person every be free who undertakes to subjects, be- publish his sentiments on proceedings of the examine the General ing of this liber- responsible for the abuse any government, Assembly branch ty. no ever made to restrain law shall Every person may free- thereof. (effective 1880) Jan. ly speak, print fully write and Rights, 1: No shall be subject, being responsible for the Bill of Art. laws abuse reli- passed respecting establishment of liberty. an Every may freely Art. 4: citizen write, publish his sentiments on gion prohibiting the free exercise there- any subject, being responsible for of, or abridging the speech, freedom of or liberty. abuse of this No shall laws be press, of the right people or the passed regulating restraining or the free- peaceably to petition gov- assemble and and, press; prosecutions dom of the grievances. ernment for a redress of any publication respecting the official con- Provisions, General pro- Art. 168: In all public duct capacity, quali- of men or the ceedings libel, of indictments for the truth fications of those who are candidates for may given thereof be in evidence. The suffrages people, of the or where jury in all judges criminal cases shall be published proper matter infor- the law and of the question facts on the mation, given the truth thereof be guilt innocence, having charged or been evidence; libels, and in all indictments for applicable to the law to the case jury, having after received the direction presiding judge. court, of the shall have a to deter- mine, discretion, at their and the law (effective 12, 1898) May fact. Rights, Bill of Art. 3: No law shall ever' MARYLAND passed to curtail or liberty restrain the speech press; or of the any person may 1776* speak, publish write and his sentiments on (effective 8, 1776) Nov. subjects, being responsible for Rights, Declaration of That free- VIII: abuse of that liberty. debates, speech proceedings dom of or Provisions, General pro- Art. 179: In all Legislature, ought in the not to be im- ceedings libel, or indictments for the truth peached any judicature. other court or given thereof in evidence. The Rights, Declaration of XXXVIII: That jury in all criminal eases shall be the (cid:127) liberty press ought of the to be inviol- judges of the law and of the facts on the ably preserved. question guilt innocence, having been charged as to the applicable law to the case presiding judge. (effective 4, 1851) July Rights, Declaration of Art. 8: That free- (effective 22, 1913) Nov. speech debate, dom of proceedings legislature, ought in the im- provisions.

Same as 1898 not to be peached in any judicature. court of Rights, Declaration of Art. 38: Same as (effective 1, 1921) July (1776). Rights, Declaration of XXXVIII I,Art. 3: Bill Rights, Same as 3Art. § (1898). XIX, (effective 1, 1864)

Art. 9: Same as General Nov. Provi- § sions, (1898). Art. 179 Rights, Declaration of Art. 10: Same as Rights, Declaration of Art. 8 (effective 31, 1974)(present) Dec. Rights, Declaration of Art. 40: That the

I,Art. 7: No law shall liberty press ought curtail or re- inviolably strain the freedom of or of the preserved; every citizen of the State press. Every person write, may speak, ought write, speak, to be allowed publish his subject, sentiments but publish subjects, his sentiments on all be- responsible for abuse of that freedom. ing responsible for the abuse of that liber- ty- MAINE

(effective Mar. 1820)(present) (effective 5, 1867)(present) Oct. acquitted;

party jury and the shall shall be and the to determine law Rights, Declaration of Art. 10: Same as fact. provision. Rights, Declaration of 40: That the Art. (effective

liberty press ought inviolably 1851) to be Jan. preserved; every citizen of State IV, 42: law shall ever be Art. No write, ought to be allowed passed abridge restrain subjects, on all publish his sentiments be- press; every person or of the responsible that ing privi- for the abuse of write, freely publish and his may speak, lege. subjects, being responsi- sentiments on all MASSACHUSETTS right. the ble for abuse such 1780* VI, prosecutions In Art. 25: all for § (effective 1780) Oct. libels, may given in the be evidence to truth appear jury if it the jury; the and shall to Rights, Art. XVI: The Declaration true, charged is the matter as libellous that liberty of the press the is essential to secu- published good with motives and and was not, ought in rity of freedom a State: it ends, party be ac- justifiable shall therefore, in this common- to be restrained quitted. jury shall wealth. determine the law and the fact. Rights, Art. XXI: The Declaration deliberation, speech, freedom of and de- bate, legislature, either house of 1, 1909) (effective Jan. people, so essential of the that I, Every person may freely Art. 4:§ any it cannot the foundation of accusa- be speak, publish his sentiments on write and prosecution, complaint, in tion or action or being responsible for subjects, all place other court or whatsoever. right; and no shall abuse such law be Present liberty passed abridge to restrain 2, 1948) (1780 as amended Nov. press. speech or of the Rights, XVI: The Declaration Art. I, prosecutions In all for libels Art. 18: § liberty press is essential to the secu- given in may be evidence the truth not, rity ought it freedom a state: and, jury appear if shall to the jury; it therefore, to be restrained this common- charged is true and the matter as libelous speech wealth. The of free shall not good and for published was with motives abridged. be ends, justifiable be ac- accused shall XXI: Rights, Declaration Art. Un- quitted. changed. MICHIGAN (effective 1964)(present) Jan. I, Every person may freely Art. 5:§ 26, 1837) (effective Jan. write, express publish his speak, and views I, Every person may freely Art. 7:§ responsible for the subjects, being on all write, publish his sentiments right; and no law shall be abuse such subjects, responsible for being all liberty abridge enacted restrain right; no shall of that laws be abuse press. speech or of the abridge liberty passed restrain In press. prosecutions Art. 19: all libels prosecutions or of the all § libels, given in evidence to the may the truth be or indictments truth and, appears jury to the that the jury; if it if it given jury; to the shall evidence and was charged charged as libelous true appear jury the matter matter justifi- true, published good motives and for published with as libellous is with ends, acquitted. ends, the accused shall good justifiable able motives facts, mine the law and the under the di- rection of the court. MINNESOTA (effective 1, 1890)(present) Nov. (effective 11, 1858) May Ill, Art. 13: The freedom of Art. 3: press shall sacred, press and of the shall be held inviolate, persons forever remain and all prosecutions for libel the truth write, may freely speak, publish evidence, given jury and the shall deter- subjects, being responsi- sentiments on all ble right. for the abuse of such mine the and the facts under the di- law court; appear rection of the and if it shall jury charged the matter (effective 5, 1974)(present) Nov. true, published libelous is and was Same provision. as 1857 good ends, justifiable motives and for MISSISSIPPI party acquitted. shall be MISSOURI (effective 10, 1817) Dec. I, Every Art. 6: may freely citizen § (effective 10, 1821) Aug. speak, write, publish and his sentiments on XIII, Art. 16: That the free communi- § subjects, all being responsible for the thoughts cation of opinions and is one of liberty. abuse of that man, rights the invaluable and that ev- I,Art. 7: No law shall passed ever be § ery person may write, freely speak, and to curtail or restrain the liberty print any subject, being responsible for press. or of the the liberty; prose- abuse of that that in all I,Art. prosecutions 8: In all or indict- § cutions for the may libels truth thereof be libels, ments for the may given truth in be evidence, given in jury may and the deter- evidence; jury and the right shall have the facts, mine the law and the under the di- facts, to determine the law and the under rection of the court. the direction of the court. (effective July 1865) (effective 1, 1833) Jan. I, I, Art. 27: That the free communica- Every

Art. 6: may § citizen freely § speak, write, thoughts opinions tion of and is one of the publish and his sentiments on subjects, man, all being every responsible invaluable and that for abuse of that liberty. person write, may freely speak, print and any subject, being responsible for I,Art. 7: No passed law shall ever be § liberty; prosecu- abuse of that that in all to curtail or restrain liberty speech, libel, may tions for the truth thereof be press. or of the evidence, given in jury may and the deter- I,Art. prosecutions 8: all or indict- § facts, mine the law and the under the di- libel, ments for may given the truth be rection of the court. evidence; if appear and it jury shall to the that the charged true, matter as libellous is published and was good with motives and (effective 30, 1875) Nov. justifiable ends,

for party shall be ac- II, Art. 14: That no law shall be § quitted; jury and the shall have the passed impairing speech; the freedom of to determine the law and the facts. every person say, that shall be free to write, publish any whatever he onwill (effective 18, 1869) Feb. subject, being responsible for all abuse of I, liberty; Art. 4: The prosecu- freedom of and in all and suits and press sacred, shall be held tions for libel the may truth thereof be indictments for libel jury given evidence, shall deter- jury, and the under the

passed abridge to restrain press. In all criminal speech or of the court, shall determine the direction prosecutions or indictments for libel and the fact. law evidence; if it given truth be jury the matter appear shall (effective 30, 1945)(present) Mar. true, pub- charged and was as libellous passed Art. 8: law shall That no justifiable good motives and for lished with impairing speech, no matter freedom ends, and the party acquitted; shall be communicated; every by what means jury to determine shall have say, pub- person shall be free to write or fact. law and the lish, or otherwise communicate whatever being subject, responsible he onwill (effective 1875)(present) Nov. liberty; all abuses and that of that prosecutions for libel or slan- all suits freely Every person may Art. 5:§ given in evi- der the truth thereof write, subjects, publish on all dence; prosecutions suits and being of that responsible the abuse direction jury, under the libel libel, civil liberty; in all trials for both determine, court, law shall and the truth, criminal, published when facts. ends, good justifiable motives and MONTANA defense. shall be a sufficient NEVADA 1889) (effective Nov. Ill, passed Art. No law shall be 10: § (effective 1864)(present) Oct. speech; every impairing the freedom of freely I, Every may Art. 9: citizen § person speak, shall or be free write write, publish speak, and his sentiments any publish subject, will on whatever he for the being responsible subjects, all being responsible all abuse that lib- for right; law shall be and no abuse of that prosecutions erty; and that in all suits and liberty of abridge the passed or to restrain libel, may given the be for truth thereof criminal speech press. the In all or of evidence; jury, and under the direction the libels, the civil actions for prosecutions and court, the and of the shall determine law jury; to the may given truth evidence be facts. the that the appear jury if to the and it shall true, charged as libellous is and was matter (effective July 1972)(present) justifi- published good motives and with ends, acquitted or party shall be able the II, passed

Art. 7: No law shall be § exonerated. impairing speech expres- the or freedom person Every speak shall be sion. NEW HAMPSHIRE any subject, publish he will on or whatever 1776* being responsible for all abuse of that lib- 5, 1776) (effective Jan. erty. prosecutions In all for libel suits and specific provision. no There is may given the thereof be or slander truth evidence; jury, under di- and the the 1784* court, the of the shall determine rection 1784) (effective June and the facts. law is I, Liberty of the Press Art. 22: § NEBRASKA in a security freedom essential to the state; therefore, inviolably ought, it to be preserved. 1, 1867) (effective Mar. deliberation, I,Art. The freedom of 30: I, person freely 3: Every may § Art. § debate, speech, house write, and either

speak, publish and his sentiments on rights of legislature, is so essential to the responsible subjects, being all for the foundation people, the it cannot the right, of that .and no laws shall be be abuse II, may freely Every person 17: Art. § publish speak, sentiments on write his any action, complaint, prosecution, or being responsible for the subjects, all place or court whatsoever. right; shall abuse and no law be Present liberty passed abridge restrain or (1784 1968) as amended speech press. or of the In all criminal libels, may truth I, prosecutions for be liberty Art. Free 22: § and if it given jury; in evidence to the shall press security are essential to the therefore, appear jury charged matter They ought, freedom in a that the state: inviolably preserved. published to be is true and was with libelous ends, good justifiable motives and for Unchanged. Art. 30: acquitted. shall party NEW JERSEY NEW YORK 1776* (effective 3, 1776) 1777* July (effective 20, 1777) Apr. specific provision. There is no specific provision. is no There (effective 2, 1844) Sept. (effective 31, 1822) Dec. Every may person freely Art. 5:§ VII, may Every freely Art. 8: citizen write, speak, publish his sentiments on write, publish his sentiments on all subjects, being responsible for subjects, being responsible all right. abuse of that No law shall be right; abuse of that and no law shall be passed abridge liberty to restrain or press. passed abridge to restrain or or of the In prosecutions all libel, speech, press. prosecutions indictments truth given libels, jury; evidence if it shall truth indictments appear jury charged that the if given jury; matter in evidence to the and it shall true, as libellous published was with jury charged appear to that the matter good ends, justifiable and for true, motives published libellous party acquitted; shall be jury and the shall ends, justifiable good motives and for the right have to the determine the and the law party acquitted; jury be the shall shall and fact. right to law and the have the determine the fact. 1947

(effective 1, 1948)(present) Jan. (effective 1847) Jan. I, Every

Art. person freely 6: may § speak, publish write and his sentiments I, may Every freely Art. 8: citizen § all subjects, being responsible for the write, speak, publish and his sentiments on right. abuse of that No shall be law being for the subjects, responsible all passed abridge liberty to restrain or the right; no law shall be abuse of and speech press. prosecutions or of the In all passed abridge liberty restrain or the libel, or may indictments for the truth be press. prose- the criminal or In all given in jury; evidence to the it and if shall libels, cutions indictments the truth for appear jury charged to the that the matter may given jury; the be evidence to and true, as libelous published is with appear jury if it to the the matter shall good ends, justifiable and for motives the true, charged pub- as and was libellous is party acquitted; jury shall be shall the good justifiable lished for with motives and right have the to determine the and the law ends, party acquitted; the shall be and the fact. jury right have determine shall the the NEW MEXICO the law and fact.

(effective 6, 1912)(present) (effective 1, 1895) Jan. Jan.

strained, held every person shall be responsible abuse. I, freely Every may Art. 8: citizen § NORTH DAKOTA speak, publish write his sentiments on subjects, being responsible the that right; abuse of and no law shall be 2, 1889) (effective Nov. abridge the passed to restrain or write, I, Every freely may Art. man 9:§ press. or of In all criminal opinions speak publish his on all sub- libels, prosecutions indictments responsible abuse of jects, being for the jury; given truth in evidence to the privilege. In all and criminal civil jury if that the appear it shall given trials the truth for libel true, charged and was matter as libelous evidence, defense and shall be sufficient good motives and for published with the published good when matter is ends, acquit- justifiable party shall ends; justifiable and the motives and ted; right jury and the shall giving a jury power the same shall have the fact. determine law and cases; in all general in other verdict as or informations for libels indictments jury to determine shall have (effective 1, 1939)(present) Jan. under law and the facts the direction as provision. Same court in other cases. as NORTH CAROLINA (effective 1980)(present) 1776* 1776) (effective Dec. I, Art. 4: Same Art. § § Rights, XV: Declaration of That OHIO press great freedom of is one of ought liberty,

bulwarks therefore 1, 1803) (effective Mar. to be never restrained. VIII, printing-presses That Art. 6: every citizen who open shall be and free 1862) (effective May 20, proceedings of wishes examine the government, or the conduct branch of provision. Same officer; ever any public and no law shall Every citizen right thereof. restrain the (effective 1, 1868) July write, indisputable has an press Art. 20: The freedom the proper, print any subject as he thinks upon and, great liberty, liberty. one of bulwarks being the abuse of that liable for therefore, restrained, ought any publication respect- never to be but prosecutions In for every responsible public held ing individual shall be conduct of men in a the official is published the abuse the same. the capacity, for of or where matter information, truth proper public the for evidence; always in may given thereof be (effective 31, 1876) Dec. libels, jury for the and in all indictments I, of press Art. The freedom the is 20: § right the law and shall have a to determine great liberty, of one of the bulwarks and court, facts, the the under the direction of ought restrained, therefore never to be but inas cases. other every responsible held individual should be for the abuse of the same. (effective 8, 1852)(present) Jan. freely Every may Art. 11: citizen § (effective July 1, 1971)(present) write, on speak, publish his sentiments and for the being responsible Art. 14: Freedom of and of all subjects, § shall press great right; are of the abuse the and no law be the two bulwarks liberty of passed abridge or liberty and therefore shall never be re- to restrain IX, printing-press Art. 7: That § every person under- shall free to who be speech, press. In criminal or of the all proceedings of the examine the takes to libel, may prosecutions for the truth be any government, legislature, or branch of given jury, in to the and if it shall evidence made to restrain and no law shall ever be appear jury charged that the matter communication right thereof. The free true, published as libellous is and was thoughts opinions and is one of ends, good justifiable and motives for man; every citizen rights invaluable and party acquitted. shall be write, print any on may freely speak, OKLAHOMA subject, being responsible for the abuse prosecutions publi- for liberty. In investigating papers cation of the official (effective 16, 1907)(present) Nov. public of officers or men in a ca- conduct II, Every person may freely Art. 22: § pacity, published the matter or where write, speak, publish or his on sentiments information, proper public for the truth subjects, being responsible all evidence; may given in thereof be right; of that and no shall abuse law be jury shall all indictments libels passed abridge to restrain or facts, right to determine the law and the press. In or of the all criminal court, as in other under the direction libel, prosecutions for the truth of the mat- cases. alleged given ter to be libelous be jury, appear evidence to the and if it shall (effective 1839) Jan. charged jury the matter IX, printing-press Art. 7: That libelous, pub- true and or was written every person shall free to under- who good justifiable lished with motives and for proceedings takes to examine the ends, party acquitted. shall be government; legislature any or branch of OREGON and no law shall ever be made to restrain right The free communication thereof. thoughts opinions is one of the (effective 14, 1859)(present) Feb. man; every citizen invaluable I,Art. No passed 8: law shall be re- write, may freely speak, print straining opinion, the free subject, being responsible for the abuse of write, restricting right liberty. prosecution publi- for the print whatever, freely any subject papers investigating the official cation of every person responsible shall be for the officers, public conduct of or men right. abuse of this capacity, published the matter where PENNSYLVANIA information, proper the truth me* evidence; given thereof jury shall have indictments libels (effective 28, 1776) Sept. facts, and the to determine law Rights, peo- Declaration XII: That the court, under the direction of the ple speech, have a to freedom of and cases. sentiments; writing, publishing press ought the freedom therefore of the (effective 1, 1874) Jan. not to be restrained. I, printing-presses shall be Art. 7:§ Government, Plan or Frame of 35: The § every person may undertake to free to who printing presses every per- shall be free proceedings legislature examine the of the pro- son who undertakes to examine the any government, or of and no law branch ceedings legislature, any part the or of of right the shall ever be made to restrain government. thereof. The free communication of thoughts opinions and is one of the invalu- (effective 2, 1790) man, may Sept. rights every able of and citizen (effective 1986) (present) Dec. write, print any on sub-

freely speak, and of that ject, being responsible for the abuse I, liberty press the 20: Art. § any had liberty. No conviction shall be being security of freedom essential the prosecution publication papers for the state, publish any person may senti- in a official of officers relating to the conduct any subject, being responsible for ments on capacity, any other public or men in or in all liberty; of that trials the abuse public investigation or proper for matter criminal, truth, libel, the both civil and for information, publi- the that such where fact motives, malicious published from unless negligently maliciously cation not or was person sufficient defense to shall be shall be established to the satisfac- made- charged. for jury; tion and in all indictments CAROLINA SOUTH deter- jury right shall libels the have facts, the di- and the under mine the law 1776* court, 26, 1776) (effective in other cases. rection of the Mar. specific provision. There is no

(effective 23, 1968) Apr. (present) 1778* I, shall be printing press 7: The 30, 1778) Art. (effective § Nov. every person may undertake free to who press of the liberty XLIII: That the Legislature proceedings examine the inviolably preserved. law government, and no any branch made to restrain shall ever be 3, 1790) (effective June The free communication thereof. the invalu- thoughts opinions is one of IX, by jury, 6: The as hereto- Art. trial § man, citizen every able State, liberty in this and the fore used any sub- freely speak, print write and on inviolably pre- press, shall be forever ject, being responsible of that for the abuse served. any liberty. No conviction shall be had papers prosecution publication 27, 1865) (effective Sept. officers relating to the official conduct of IX, by jury 7: as hereto- Art. The trial § public any other capacity, or men in or to State, liberty in this and the used fore public investigation or proper matter pre- inviolably shall be press, forever information, publi- where fact that such assembly shall general But served. negligently maliciously cation the number of power determine the satisfac- made shall be established to jury in shall persons who constitute jury; tion of the in all indictments and district courts. inferior to deter- jury shall have the libels facts, di- under the mine the law and court, cases. rection of the 16, 1868) (effective Apr. ISLAND RHODE I, persons freely Art. 7: All § m2 write, publish their sentiments 1843) subject, being responsible for the (effective May right; no laws shall be of that abuse press liberty 20: The Art. abridge restrain enacted to security of freedom being essential press. speech or of the State, any person may publish his publi- for the responsi- prosecutions 8: In any subject, being Art. sentiments papers investigating the official liberty; cation of ble for the abuse capaci- criminal, libel, of officers or men both civil and conduct trials truth, published proper mo- the published ty, from malicious or when matter unless information, tives, public the the truth thereof be defence to shall sufficient evidence; in given and all indict- person charged. may be proceedings takes to examine the of the legislature, any or of branch or officer of libel, jury judges ments for shall be the government; and no law shall ever be of the law and the facts. right made to restrain the thereof. The thoughts opin- free communication of and (effective 31, 1895) Dec. man; rights ions is one of the invaluable I,Art. 4: The Assembly General write, shall every may freely speak, § and citizen respecting make no law an establishment print any subject, being responsible religion prohibiting or the free exercise liberty. prose- the abuse of that But in thereof, abridging or the freedom of publication papers cutions for the inves- press; right people or of the tigating the official conduct of officers peaceably petition to assemble and to public capacity, men in the truth thereof any department Government or thereof for may given evidence; be and in all indict- grievances. redress of libels, jury ments for right shall have a facts, to determine the law and the under I,Art. prose- 21: In all indictments or § court, direction of the other cases. libel, cutions for the truth alleged of the evidence, may given libel be jury and the judges shall be the of the law and the (effective 6, 1835) Mar. facts. I,Art. printing-press 19: That the shall § every person be free to who undertakes to (effective May 1971) (present) proceedings legislature, examine the of the any or of government; branch of office of Art. 2: Same as Art. § § and no law shall ever be made to restrain I,Art. 16: In all prose- indictments or § right thereof. The free communication libel, cutions for the truth alleged thoughts opinions is one of the may evidence, given libel jury and the man, rights every invaluable citizen judges shall of the law and facts. write, freely speak, print on any SOUTH DAKOTA subject, being responsible for the abuse of liberty. prosecutions But in for the (effective 2, 1889) publication (present) papers investigating Nov. the offi- cial conduct of officers or men in VI, Art. Every person 5: may freely § capacity, the truth given thereof publish write and subjects, on all evidence; libels, and in all indictments for being responsible for the abuse of that jury right shall have a to determine the right. libel, all trials for both civil and facts, law and the under the direction of criminal, truth, published, when court, inas other criminal cases. good ends, motives justifiable and for shall be a sufficient defense. jury shall have the to determine the facts and (effective 26, 1870) (present) Mar. the law under the direction of the court. Art. printing-presses 19: That the §

TENNESSEE every person shall be free to to examine proceedings legislature, 1785** any government; branch or officer of the (Constitution Franklin) of the State of and no law shall ever be made to restrain Rights, Declaration of 15: That the thereof. press freedom of the is one of greatest thoughts free communication of liberty, bulwarks of ought and therefore opinions is one of the invaluable never to be restrained. men, every may freely speak, citizen write, print subject, being re- (effective 1, 1796) June sponsible for the abuse liberty. of that XI, Art. 19: That the printing-press prosecutions publication But in shall every person be free to papers investigating who under- the official conduct court, the of the as in

facts under direction cases. other public capacity, or in the truth officers men evidence; in given in may thereof be libel, jury I, (same) the have all indictments for shall Art. 5:§ facts, right to the and the determine law I, prosecutions publi- 6: for the Art. In § court, under the as in other direction papers investigating of the official cation criminal cases. public men of officers or of in a conduct published or matter is capacity, when the TEXAS information, public for the truth proper (Constitution Republic of of the 1836** and, evidence; in may given be in thereof Texas) libels, the shall prosecutions jury for all Rights, Every citizen Declaration of 4:§ the the right the determine law and have write, liberty speak, pub- at or shall be facts, as in under the direction court opinions being re- any lish his subject, cases. sponsible privilege. of for the abuse that (present) passed curtail the No law shall ever be I, Every person 8: shall Art. be § liberty press; in all speech of or of the write, publish opin- liberty speak, or his may the be prosecutions for libels truth being responsible any subject, for ions on evidence, have given jury in and the shall privilege; no law the abuse of that fact, right the the to determine law passed curtailing liberty ever be shall under the direction of court. prosecutions In speech press. or of the of publication papers investigating for the of I, Every Art. 5: citizen shall be § public or men in the conduct officers write, publish opin- his liberty published matter is capacity, when the being subject, responsible ions on information, public truth proper for privilege; the abuse and no law may And given thereof be evidence. liberty passed curtailing shall ever be jury have shall all indictments for libels speech press. or of the facts right to the law and the determine court, in other the direction of the under I, publi- prosecutions Art. 6: In for the § cases. of papers investigating cation the official officers, public conduct or men in a UTAH capacity, published the matter when 1845** information, proper public the truth Deseret) (Constitution of the State and, evidence; may given thereof be VIII, Every person may speak, Art. libels, jury all indictments for shall 5: write, publish his sentiments on and the have the to determine the law being for the subjects, responsible abuse court, as in facts under the direction passed to right, and no law shall be other cases. abridge or of press. (same) (effective 4, 1896) (present) Jan. I, (same)

Art. 5:§ passed be 15: No law shall Art. publi- freedom prosecutions abridge Art. for the or restrain the 6:§ press. prosecu- investigating the official or of the In all criminal papers cation given in public men in a ca- for libel the truth conduct officers or tions appear if it published jury; to the shall pacity, or when the matter evidence information, jury charged truth matter proper evidence; and, true, published given thereof libelous is and was libels, motives, ends, the jury good justifiable shall all indictments for acquitted, jury and the shall party to determine the law and shall

Bill Rights, 12: That the freedom of § press great is one of the bulwarks of have the to determine the law and the liberty, and can by never be restrained but fact. despotic governments. VERMONT 1* (effective 1, 1830) July (effective 8, 1777) July Adopts Art. I: Rights the Bill of from Ch. people XIV: That the have a § the 1776 constitution. right to speech, freedom of writing and of publishing sentiments; and therefore, their (effective 12, 1852) Jan. press ought freedom of the not be restrained. Rights, Bill of XII: Same Bill § Rights, 12 §

Ch. XXXII: printing presses § shall every person be free to who under- takes to examine proceedings of the (effective 1864) legislature, any part or government. provision. Same as the 1851 1786** (effective July 1786) (effective 26, 1870) Jan. Ch. That people XV: have a § I,Art. 14: That the freedom of the § right of speech freedom of writing and of press great is one of the bulwarks of liber- and publishing sentiments, their concerning ty, and can never be restrained but government transactions of there- —and despotic governments; any citizen fore press the freedom of ought not to speak, write, publish his sentiments on be restrained. subjects, being responsible for 1,Ch. XVI: The freedom of delibera- § liberty. abuse of that tion, speech, debate, legislature, is so essential rights people, of the (effective 10, 1902) July that it cannot be the any foundation of prosecution, accusation or action or com- I,Art. 12: That the freedom of the § plaint, any other court place whatso- press great is one of the bulwarks liber- ever. ty, and can never be restrained but despotic governments; any citizen freely speak, publish write and his senti- (effective 2, 1796) Nov. (present) subjects, being ments on all ‘responsible Ch. XIII: people That the have a § right. the abuse of that right to speech, freedom of writing and of publishing sentiments, concerning (effective July 1971) (present) government, transactions of and there- fore the press freedom of ought not to I,Art. 12: That the freedom of be restrained. press and of among great are bul- liberty, warks of and can never re- 1,Ch. XIV: The freedom of delibera- except by strained despotic governments; tion, speech, debate, legislature, in the any write, may freely speak, citizen is so essential to the people, publish subjects, his sentiments on all it cannot be the any foundation of being responsible for the abuse of that accusation, prosecution, action, or com- right; that the General Assembly shall not plaint other court place whatsoev- pass any abridging law the freedom of er. press, or of the nor the VIRGINIA people peaceably assemble, peti- and to government tion the 1776* for the redress of (effective 12, 1776) June grievances. libellous, is charged as the matter motives, true, good published and was WASHINGTON ends, justifiable the verdict shall be and for for the defendant. (effective 1889) (present) Nov. WISCONSIN I, may Every person freely Art. 5:§ publish speak, subjects, and on all write 29, 1848) (effective May (present) being responsible for of that the abuse may freely Every person 3: Art. § right. speak, publish and his sentiments on write WEST VIRGINIA being responsible for the subjects, all right, no laws shall be abuse of that and (effective 20, 1863) June abridge the passed to restrain or II, abridging Art. 4: No law freedom In all speech, press. or of the criminal § press passed; libel, speech shall be prosecutions, or for the or indictments legislature may provide the for the evidence, given if it may truth be and publishing the punishment restraint and appear jury, shall to the that the matter books, papers, vending and of obscene and true, pub- charged and was as libelous be pictures, of libel and defamation of and justifiable good lished and for with motives character, recovery, for civil and ends, party acquitted; and the shall be actions, aggrieved party, of by the suitable jury have the to determine shall damages libel defamation. At- for such or law and the fact. tempts uphold and an armed inva- justify WYOMING State, organized sion of the or an insurrec- therein, during the tion continuance of such 10, 1890) (effective (present) July insurrection, by publicly speak- invasion or ing, writing, printing, by publishing or or person freely Every may 20: Art. § circulating writing printing, may such or publish subjects, and write be, law, misdemeanor, by declared and that being responsible for the abuse of punished accordingly. libel, and right; and in trials for both civil truth, criminal, published with II, prosecutions In and when Art. 5: civil § ends, given good justifiable and shall be suits for libel the truth intent defense, evidence; jury having the appear jury if it shall and sufficient true, law, charged facts matter as libellous to determine the published good and was motives and under court. direction * ends, justifiable shall verdict original thirteen Constitutions the defendant. prior to the that were in effect states States of Constitution the United America. 1872) (effective (present) ** states, among Constitutions Ill, abridging No law the free- Art. 7:§ states, original prior thirteen existed speech, press, dom of or of the shall be United to the State’s admission Legislature may suit- passed; but the States of America. penalties, publication restrain the able Justice, GONZALEZ, concurring. books, pictures, papers sale obscene libel, provide punishment for the Garcia, 834 In Davenport character, and for the and defamation (Tex.1992), stated that 12-13 this Court actions, aggrieved recovery civil insights “we from the of well- can benefit libel, damages for such party, suitable developed jurispru- federal reasoned and or defamation. analyzing dence” in our state constitution. However, today’s opinion, plurality Ill, prosecutions, Art. 8: and civil libel, ignores jurispru- state given years of federal and the truth suits evidence; reasoning offering any appear jury if it shall dence without departure “time, its from 1) the well-known analysis: tracks for free a track place, and manner” standard adopts speech regulation an for direct aimed at com- overly 2) restrictive analyzing test for restric- impact, municative a track for indi- speech. tions on I speech regulation would instead utilize a rect aimed at noncommu- time, modified version of place, impact possesses nicative adverse ef- manner test to hold that the creation of the fects on opportunity. communicative Law- (100) one-hundred foot free zone rence H. Tribe, American Constitutional entrances, exits, (2d around the parking 1988); Konigs see also ed. Law lots of various Houston berg California, v. State Bar abortion clinics 366 U.S. during Republican 36, 49-51, National 997, 1005-07, Convention 81 S.Ct. 6 L.Ed.2d Therefore, although (1961). unconstitutional. The difference between direct I judgment Court, concur in the of the I speech regulation do speech regu- and indirect join plurality not opinion. lation part has been a fundamental of fed- jurisprudence

eral First Amendment for at See, I. years. e.g., Hague v. fifty least C.I.O., 496, 515-16, 954, 307 U.S. 59 S.Ct. I my analysis commence by examining 963-64, (1939) 83 L.Ed. 1423 (plurality opin- the traditional and dichotomy fundamental J.); Roberts, ion of Hamp- Cox v. New between direct and indirect speech regula- shire, 569, 574-76, 762, 312 U.S. 61 S.Ct. tion that has been utilized the courts of 765, (1941); Young v. Ameri- 85 L.Ed. 1049 this state and the courts of this nation for Theatres, Inc., can Mini 50, 427 U.S. 63 & generations.1 I believe analy- that such an 18, 78-79, 2440, 2456, n. 96 S.Ct. 49 L.Ed.2d necessary sis is to remain faithful to Dav- (1976); San Francisco Arts & Athlet- enport and its directive that this Court ics, Olympic Inc. v. United States Com- should “borrow from well-reasoned and mittee, 522, 536-37, 483 U.S. 107 S.Ct. persuasive procedural federal and substan- 2971, 2981, (1987). 97 L.Ed.2d 427 Direct precedent tive when help- this is deemed speech regulation prevents the dissemina- Davenport, ful-” 834 S.W.2d at 20. In tion of a certain idea poten- because of the order to determine whether the course of idea; words, tial effect of in an our sister states and judiciary the federal prohibited individual is expressing from a helpful, point we must at some examine the particular government idea because has developed by rationale these other courts. way determined that idea is some harm- This Court develop should not constitution- contrast, ful society. In speech indirect al complete vacuum, law a but instead regulation prevent does not the dissemina- we should examine the development of the idea; tion of an it regulates instead either law the other states and the federal timing speech, place of the system and benefit experiences. from their speech, or speech. the manner of the It is courts, The federal and especially the Unit- speech regulation obvious that a direct Supreme Court, ed States developed a prevents an reaching idea from ever two-track model examining speech reg- marketplace of ideas is more offensive than ulations that has been followed to some speech regulation an indirect inciden- extent majority vast juris- of other tally manner, effects timing, either the dictions in this nation. reject Before we placement or the expressive activity. well-accepted model, such a we at should least examine it. Supreme United States Court has The First Amendment cases of the recognized Unit- consistently dichotomy be- Supreme ed States Court have created two tween speech regulations direct and indi- See, C.I.O., e.g., Hague 496, 515-16, 1. Antonio, v. City 202, 307 U.S. v. San 615 S.W.2d 205-06 954, 963-64, (1939) 59 S.Ct. (plu- 83 L.Ed. (Tex.1981); State, 546, v. Olvera 806 S.W.2d Roberts, rality opinion J.); Cox v. New SHARE, (Tex.Crim.App.1991); Bering 548-50 v. 569, Hampshire, 574-76, 762, 312 U.S. 61 S.Ct. 212, 918, (1986), 106 Wash.2d 721 P.2d cert. (1941); 85 L.Ed. 1049 Planned Parenthood dism'd, 479 U.S. 107 S.Ct. 93 L.Ed.2d Rescue, Operation v. 406 Mass. 550 N.E.2d (1987). (1990); Organization Iranian Muslim (1986), dism’d, regulations. closely 479 U.S. speech

rect The Court cert. speech regulations, hold- 93 L.Ed.2d 990 Even this scrutinizes direct S.Ct. dichotomy pre regulations recognized this ing that such are unconstitu- state has establishes, Organi government Muslim unless the vious decisions. Iranian tional Antonio, example, message being sup- City v. 615 S.W.2d that the zation San (Tex.1981); State, pressed poses present dan- 205-06 Olvera “clear and defamatory (Tex.Crim.App. false- ger,” or constitutes 806 S.W.2d 548-50 1991). Furthermore, jur most H. do hood. Lawrence Tribe, American Con- 1988); (2d recognize ed. see isdictions the nation dichot Law stitutional speech at omy direct and indirect Konigsberg, U.S. between also contrast, engages just in a regulations, the Court such distinction makes regula- Why restrictions at balancing test for sense. should indirect indirect 12-2; Konigsberg, tempting competing to balance tions. Tribe see also subject high degree scrutiny An indi- to the same at 1007. 366 U.S. S.Ct. completely regulation if it direct restrictions that ban a rect is constitutional However, today’s neutral, expression? narrowly type tailored to is content discussion, interest, analysis significant opinion, a and it without serve state open ample plurality recognize dichotomy fails to this leaves alternative communica- Grace, 461 Texas I instead channels. v. under the Constitution. tive United States 171, 177, 1702, 1706, of this experiences 103 75 utilize the state U.S. S.Ct. would (1983). Thus, recognize jurisdictions L.Ed.2d 736 the Court and other likely uncon- indirect regulation much less to find a traditional distinction between time, regula just speech regulation speech regulates when it and direct stitutional therefore, tion; subject I indirect place, and manner rather would speech regulations onerous test wholly precluding the dissemination to a less than speech regulations. thought marketplace a in the of ideas. than direct Although dichotomy this direct between II. regulation speech regu- speech and indirect critics,2 mentioning even the law oth- lation is not without its the United Without today’s jurisdictions, plurality feder- Supreme Court and the lower er States just applies Davenport test for dichotomy opinion courts have al utilized this C.I.O., regulations speech 307 to an indirect fifty years. Hague See v. direct over 515-16, (1939); regulation. Davenport v. Gar- speech at 963-64 U.S. S.Ct. cia, ability of Hampshire, Court addressed the a v. New 312 U.S. at this Cox (1941). Moreover, judge suppress speech with a at 765 the courts trial court S.Ct. at issue in every “gag gag state order.” order likewise utilize attorney See, Davenport prohibited an from e.g., distinction. Planned Par- same Rescue, making any public Mass. or discussion Operation v. comment enthood (1990); courtroom. 834 Bering N.E.2d a case outside the SHARE, analyzing history P.2d 918 at 6. After v. Wash.2d See, Similarly, California, rejected by e.g., Konigsberg has been the Court. v. State Bar 36, 61-71, 997, 1012-17, right Black did not believe that U.S. 81 S.Ct. Justice (Black, J., (1961) broadly granted dissenting); speech “a constitutional Bak- free L.Ed.2d 105 er, picketing right engage Mandatory Pa- in the conduct of Unreasoned Reasonableness: Place, Time, patrolling, publicly whether owned streets or and Manner Re- on rade Permits and However, strictions, privately property.” Cox v. Louisi- owned 78 Nw.U.L.Rev.937 on ana, 476, 468, 559, 578, Black, recog- interesting to note 379 U.S. 85 S.Ct. it is that Justice J., (1965) (Black, dissenting). His proponent chief of the absolutist L.Ed.2d 487 nized as the regulations opinion similar cases speech unconsti- in these cases and other that all are view tutional, that the possessed very what led commentators to believe abso- a limited view of has balancing requires example, preliminary test actually "speech.” lutist view constituted For York, “speech.” actually protected on what See, constitutes 12-2; Justice Black wrote Street v. New 1354, 1374, e.g., 22 L.Ed.2d & U.S. Rotunda, Young, Nowak Tribe J., (1969) (Black, flag dissenting), burn- Substance Constitutional Procedure Law: 1986). (1st way protected speech, position ed. ing 20.7 no was in speech provision of the free regulation speech. contained in a direct It should article section 8 of the Texas Constitu- subject scrutiny thus be to less onerous tion, the Court concluded that our free gag Davenport than the order test from speech guarantee provides greater rights Garcia. than the First Amendment. Id. at 10. Our time, regu- An place, indirect and manner gag Court then devised a test for orders egregious regu- lation is not as as a direct judicial proceedings, holding civil that such lation on the content for several orders withstand constitutional scrutiny time, previously, reasons. As mentioned “only specific findings sup- where there are place, regulation pre- and manner does not ported by (1) evidence that an imminent thought clude the dissemination of a in the irreparable judicial process harm to the direct, same manner as a deprive content-based litigants just will of a resolution of (2) dispute, regulation. Furthermore, time, judicial place, action represents the least restrictive means to regulations manner fundamentally arise prevent that harm.” Id. The Court went balancing competing from the of two inter- “fully to add that it was aware that a example, case, ests. For in this the trial prior restraint scrutiny will withstand un- attempt court created this zone in an der this test under the most extraordi- expression rights balance the free nary (emphasis circumstances.” Id. add- protestors against rights: two ed). The gag Court then held that women to be free from undue harassment order violated the guarantees securing an abortion and the of article section 8 of the Texas Constitu- engage clinic owners to in lawful activities tion. at 11. Id. without obstruction and intimidation. See gag order at issue in Davenport was Schultz, 474, Frisby also v. 487 U.S. 484- obviously regulation a direct speech. on It 2495, 2502-04, 108 S.Ct. 101 L.Ed.2d prevented attorney the making any from (1988) (balancing right 420 privacy of in case, comment on her except in the narrow against right home First Amendment confines of words, the In courtroom. other engage in picketing); residential Renton v. prohibited the order attorney the from ever Theatres, Playtime Inc., 475 U.S. 50- expounding her thoughts in the mar- 52, 925, 930-31, 106 S.Ct. 89 L.Ed.2d 29 ketplace for restrictive, ideas. Such a di- (1986) (balancing freedom of regulation rect speech on must subject against attempt preserve quality of life highest degree of judicial scrutiny. theaters); zoning adult Grayned City v. The Court in Davenport correctly analyzed 104, 115-20, Rockford, 408 U.S. of 2294, 2302-05, this order as only prohib- constitutional if it (1972) (bal- 33 L.Ed.2d 222 ited an irreparable imminent and harm and áncing right of individuals to demonstrate provided it the least restrictive means to against educating interest of children with- preclude this harm. type of direct noisy out interference from demonstra- speech restraint analyzed in Davenport tions); Cooper, Kovacs v. 336 U.S. 86- can and should survive constitutional scru- 448, 453, (1949) tiny S.Ct. 93 L.Ed. 513 “only under the most extraordinary (restricting amplification circumstances.” sound in residen- neighborhood); tial Aquino, Valenzuela v. contrast, injunction the in issue this (Tex.1993)(Gonzalez, 853 S.W.2d just regulated case the location and manner J., dissenting) (balancing right privacy of expression, of rather than precluding whol- against right home expression). free ly the dissemination of the relators’ anti- requisite This balancing competing message. abortion The relators were free rights necessitates some discretion on the to express their anywhere except views part legislatures of trial courts and in at- within a limited area around various abor- tempting to resolve tion clinics in these difficult issues. Houston. Consistent with Therefore, well-reasoned I developed require would not that federal and an indi- jurisprudence, state type this rect speech of indirect restriction on subjected regulation egregious is not as scrutiny under a “least restrictive means”

analysis; require only ing I that cases under article section 8 instead would decided Constitution, narrowly the Texas have utilized restriction be tailored.3 time, place, manner test.6 But these Davenport, As this a Court stated cases, along all the other state and with exacting speech restriction will meet matter, jurisprudence on this are federal “least means” restrictive test from conspicuously plurality’s absent extraordinary Why “most circumstances.” opinion today. attempting should restrictions balance delicate, However, rights subject vigorous proponent I competing such am a scrutiny? agree right expression, I that I on exacting to such free impor- my right many expressed is the most that of free occasions belief speech guarantees I also society, tant the free of the Texas our enjoyment greater guaran- this than that Constitution are believe trample provided by the First always cannot tees Amendment. Brand, See, e.g., v. Casso others. I reason create such see no S.W.2d (Tex.1989) J., (Gonzalez, concurring limited means” test for an “least restrictive v. Channel KGBT speech regulation.4 dissenting); indirect research Our Briggs, (Tex.1988) any jurisdiction has failed to locate S.W.2d J., stringent (Gonzalez, concurring). this nation utilizes This is now also such Davenport, fact, cases, previous opinion test.5 In includ- this Court. Texas disagree plurality I do not that the the “least restric- restriction constitute achieving objective. tive means” of consideration of less restrictive alternatives a cer- relevant the determination of whether 6.Many applied the cases from this state have narrowly tain restriction is tailored to serve time, place, regulations test to chal and manner government’s interest. See S.W.2d at 7. lenged under in accor the First Amendment However, considering is not other alternatives See, e.g., Mus dance with federal law. Iranian utilizing same a least alterna- restrictive Antonio, Organization City San lim utilizing tive test. al- When least restrictive State, (Tex.1981); Olvera v. S.W.2d 205-06 test, potentially ternative this Court could strike (Tex.Crim.App.1991); S.W.2d speech. rec- down restriction This was Houston, City Co. v. Houston Chronicle Pub. ognized Davenport the Court’s statement (Tex.Civ.App. — Houston scrutiny that a restriction survives under 1981, writ). impor Dist.] no Even more [14th only extraordinary test in the "most circum- however, tantly, cases state several from this prohibited stances.” an ordinance that Could time, applied place, of the have versions neighborhood picketing residential in a between specifically test claims manner to free p.m. 9 and 7 a.m. be unconstitutional because I, alleged Texas under section 8 of the article Court that this determines the least restrictive 793, Garcia, Constitution. State v. 823 S.W.2d picketing only alternative is to disallow between 1992, ref’d); pet. (Tex.App. Antonio 797-98 — San just p.m. agree 10 I that in and 6 a.m.? cannot 544, Lindsay Papageorgiou, v. 751 S.W.2d 549-50 every case least restrictive alternative must the 1988, (Tex.App. writ de [1st Dist.] — Houston regulate competing in- be used to when nied). generally Aquino, See v. 800 Valenzuela are terests involved. 301, (Tex.App. Corpus Christi S.W.2d 304-05 — 1990), part grounds, on other 853 rev’d in "least 4. As an of how onerous the indication State, (Tex.1993); v. 789 S.W.2d 512 Lauderback is, test counsel for the restrictive means” the 343, (Tex.App. Worth 347-48 —Fort basically argument that conceded at oral state Furthermore, 1990, refd). pet. Maloy City v. restraining not orders in this case could the 380, Lewisville, (Tex.App.— 848 S.W.2d 385 scrutiny Davenport. survive under 1993, writ), the Fort Worth no Fort Worth Court Appeals upheld injunction a an based on Virginia plurality, The case cited the West 5. zoning permissi ordinance a content-neutral Group, Daley, time, Inc. v. W.Va. 174 Action place, Citizens ble and manner restriction under 299, (1984), is a "least restric- 324 S.E.2d 713 not recog Expression Texas while the Free Clause traditional tive means" case. The case uses the nizing Davenport that mandated that the Texas time, place, requiring test that the provided rights and manner Constitution broader of free ex gov- Thus, narrowly the restriction tailored to serve pression than First the Amendment. Virginia court nothing prior ernment’s The West this interest. in the case law of state availability today’s plurality opinion al- considered the less restrictive even that some hinted time, determining place, whether the restric- test ternatives in version the manner gov- speech regulations narrowly apply tailored to achieve the would not to indirect tion was interest, require Constitution. but the court did not under Texas ernmental

63 neutral, if restriction is it is content S.W.2d at 10. Consistent with “Texas’ valid strong longstanding compelling commitment narrowly to serve a tailored id. 7, speech,” modify free I would interest, government open and it leaves time, place, and manner to reflect test ample alternative communicative channels. greater speech guarantee free contained in time, place, and manner Such a modified utilizing article section 8. Rather than legislative test would allow courts and bod- that requiring normal standard re- adequately competing ies to balance inter- narrowly striction an tailored serve indirectly regulating speech. ests in Fur- interest, significant I government would thermore, would still maintain our this test require narrowly that the restriction proper under Texas Con- commitment government compelling tailored to serve expres- stitution broad to our freedom interest.7 guarantee sion would occur balancing since government’s if interest was Thus, Constitution, under Texas I time, place, “compelling.”8 would hold and manner that Moreover, Phillips’ concurring opinion criticizing Davenport 7. Chief Justice ob- while de jects jurisdic my opinion ground "nothing on the cision for its failure to note that other clauses, language purpose possess expression in the the Texas Free tions free similar Expression recogniz Clause authorizes us ... to afford concurrence can criticized for greater weight balancing ing expressly many jurisdic in the of interests these guarantees expression expression than tions free we would under the First with similar C.J., provide (Phillips, that their Amendment.” 859 S.W.2d at determined constitutions 32 greater expressive concurring). Similarly, than the First Amend Justice com- Chief See, e.g., Shopping v. opinion by stating: ment. Robins PruneYard mences his “The decisions 854, Center, 899, 859-61, Cal.Rptr. 153 justices opinions 23 Cal.3d of five in two based on the are 341, (1979), 74, aff’d, 592 P.2d 447 U.S. fundamentally premise flawed Free Ex- 2035, (1980); Constitution, 64 100 S.Ct. L.Ed.2d 741 Bock v. pression of the Clause Texas Tex. Co., 55, (Colo. Westminster Mall 819 P.2d way is in art. some relevant ‘broad- Const, Schmid, 1991); 423 A.2d State v. 84 N.J. protective er’ or more of free than dism’d, (1980), U.S. the First Amendment to the United States Con- (1982). See S.Ct. also Ber L.Ed.2d engage stitution.” Id. at 16. I will not in a SHARE, ing v. 106 Wash.2d P.2d lengthy response to his historical conclusions dism’d, (1986), cert. 479 U.S. Garcia, Davenport because the Court 13-21, L.Ed.2d 7-10, already rejected S.W.2d at has such point, I address As a final would like to However, arguments. I feel that brief re- practical views. If effect concurrence’s sponse appropriate. views, adopt it would Court were these Phillips’ Chief Justice concurrence utilizes meaning mean Texas either that Con Edgewood Kirby, Sch. Ind. Dist. v. 777 S.W.2d meaning stitution could not evolve from its (Tex.1989), interpreting as the test for meaning 1875 or that the of the Texas Constitu provisions Texas Constitution. change every United tion would time the States However, pays lip S.W.2d at he mere ser Supreme cut Court issued a decision that back good portion opinion vice to a of this test. His guarantees. on constitutional I fundamental recognize does not “the inherent in difficulties accept cannot either of these two alternatives. determining century the intent of voters over a To state Texas Constitution cannot the ago,” rely "heavily and he therefore does not on meaning ig in evolve from its intended 1875 constitution, the literal text" the a text that decisions of Court and oth nores countless this recognized expressly by has been this Court organic regarding er the evolution of courts broadly See, "more O’Quinn worded" in v. State e.g., Bar guarantees constitutional over time. Texas, (Tex.1988). 10; Edgewood, 763 S.W.2d 402 Fur Davenport, S.W.2d at 777 834 of thermore, opinion his does not discuss that we S.W.2d at state that the Texas Constitu 374. To meaning every seek the constitution’s the changes subsequent “with under tion with decision of standing Supreme equally pro that the Constitution was ratified to the United States Court is organic govern function as an document to soci blematic and the of Texas an denies citizens ety they through opportunity rights adequately pro and institutions as evolve to have their Edgewood, time.” 777 S.W.2d at 394. Rather tected. recognize portions Edge- than these other formulation, by wood the approach concurrence relies al 8. Such an has been utilized at least exclusively interpretation scope most interpreting his own one in the other state court Clause, time, history guarantee the place, of the Texas Free Exercise an its free interpretation SHARE, rejected by that was Bering this Court in manner restrictions. See v. Davenport. (1986), Wash.2d P.2d cert. dism’d, 479 U.S. 107 S.Ct. III. L.Ed.2d Although plurality opin- I differ from the time, by analyze in I prong

ion the method which the The second modified re- place, manner is whether the re- test constitutionality temporary of these narrowly straining order tailored orders, straining I same reach the result. government interest. compelling serve a opinion, the tem- plurality As stated in the The two interests for clinics identified restraining porary orders the relators vio- right of to be restraining order: the women numerous re- lated this case contained securing from undue harassment .free strictions, prohibitions trespass- such right of to an and the abortion blockading imped- ing property, on clinic engage activi- clinic owners to lawful clinic, ing invading proper- access clinic to a ties obstruction and intimidation. without ty, harassing intimidating clinic staff or However, interests, these while indeed demonstrating twenty- in a patients, and by compelling, adequately are served any person seeking foot arc of access five remaining portions were of the orders that However, relators to the clinic. were prohibited tres- not violated. orders violating charged only the one-hun- blockading or passing property, on clinic dred foot distance limitation order. clinic, invading clinic impeding access to a Thus, I must only at 3. See intimidating clinic property, harassing or determine the one-hundred foot whether demonstrating in a patients, staff or distance limitation survives constitutional seeking any person twenty-five foot arc of time, scrutiny place, under the modified prohibitions ad- to the clinic. These access and manner test of Texas Constitution. compelling govern- equately serve two analysis determining by I commence this Thus, ment interests in this case. involved restraining temporary orders whether compelling keeping interest in there is no I in this case are content neutral. believe feet from all clinic relators one-hundred that the orders are indeed content neutral. exits, entrances, ac- parking lots when equally restraining apply orders to all by guaranteed cess the clinic has been protests; differentiation is made based other, no narrowly prohibi- more drawn conveyed upon particular message temporary restraining orders. tions of the words, restraining true the relators. It is that the the one-hundred foot narrowly relators, are not only zones this case applied orders any compelling serve interest tailored to defendants the they is because are served the other restrictions already the requisite clinics have established create restraining temporary orders. support injunctive threat of harm to relief. generally Northeast Women’s Center See time, Therefore, modified under (3d 939 F.2d Cir. McMonagle, v. test, the one-hundred place, and manner 1991); Terry, 886 F.2d New York NOW v. temporary in the foot distance limitation (2d Cir.1989), denied, cert. I, section restraining orders violates article 109 L.Ed.2d 532 U.S. I concur 8 of thus the Texas Constitution. (1990); Palmer, F.2d Medlin that relators judgment of the Court (5th Cir.1989); Portland Feminist discharged. Health Center v. Advocates Women’s dissenting. HECHT, Justice, (9th Cir.1988); 859 F.2d Life, Atlanta, City v. 261 Ga. Hirsh tempo- agree I that district court’s the — (1991), denied, S.E.2d cert. in- rary restraining impermissibly orders -, U.S. 112 S.Ct. 116 L.Ed.2d 49 fringed upon First Amendment relators’ (1991); Project v. explained by Planned Parenthood for the reasons Chief Jericho, Phillips concurring opinion. 52 Ohio St.3d 556 N.E.2d in his Justice SHARE, (1990); however, Bering agree, 106 I do that relators were v. not (1986), impuni- orders 721 P.2d cert. entitled to violate those Wash.2d dism'd, U.S. 93 L.Ed.2d peace allowing opportuni- an

ty exhausting all relators without first available while public forum, efforts them set aside. Relators to have their in a ty express to views expect- they chose a action course of which entirely for the excuses their conduct Court jail. ed would land them in I not would orders, that the after careful the reason disappoint them; I into would remand them analysis, should narrower. The have been custody County the of the Sheriff of Harris exception adopts a to Court thus blanket they until their punishment. served full the referred to as collateral rule—often Accordingly, I dissent. ordinarily requires ju- that rule—which bar hardly deny they intention- Relators that obeyed set aside. dicial orders be until orders. ally violated the district court’s exception to violate a person This allows a sole, feeble, very Their disclaimer yet punishment escape court order they completely that could not sure that the it can be order whenever shown public protests vicinity abor- excessively person’s restricted the constitu- tion clinics were “demonstrations” restrict- This ex- rights. tional free broad ed This disclaimer orders. belated presents rule ception to collateral bar is belied fact that of the seven five impediment orderly great too an videotaped in clinics relators were front of justice the rule administration which tearing up copies pro- of court orders protect, meant as this case illustrates. to claiming their intention to them. violate record before us reflects that on The view, proves, my they The record 5,1992, August the district court conducted were in accomplishing successful their stat- hearing applications injunctive on re- ed intent. lief in three lawsuits to restrict relators’ Although the district court’s orders limit- clinics in Hous- protests abortion ing protest relators’ more freedom are time of the planned ton to occur at the- restrictive the First al- than Amendment Republican National The con- Convention.1 lows, they not transparently are invalid. later, begin days on vention was thirteen contrary, Far to the every Member of partici- August although of the some recognizes, this Court if the were facts pants meeting prior to that date. At were different, slightly or even if perhaps hearing, plaintiffs of the had al- time actual fully circumstances were more de- ready defendants of notified several record, scribed restrictions suits, America, including Opera- Rescue imposed district justified. court would be (through tion its California and Rescue attempt Relators made no to obtain review offices), and three of the relators Houston them, of the they orders before violated Jewitt). (Tucci, Terry attorney ap- An by asking either the trial court to dissolve seeking peared them America at the by relief on behalf of Rescue appellate from an court. do hearing Relators not that such devoted to ar- hearing.2 contend attempts impossible, futile, were or frus- gument representing plaintiffs of counsel Indeed, ample trated. there is evidence concerning some defendants the contrary. Plaintiffs district and the granted, any relief whether should be court prepared proceed were whatev- day. district it lasted entire court Relators, er schedule defendants elected. inquired parties tempo- how soon hand, appeared the other anxious more if rary injunction tempo- should be heard to violate the district court’s orders than to rary restraining order Plaintiffs issued. contest them. they willing proceed indicated were request

Despite flagrant promptly hearing with a on their disregard relators’ arguably preserve temporary injunction, valid orders issued permanent for a if 92-34158, 1. The three al, al., were lawsuits Cause No. consolidated in Planned Parenthood et Houston, al., Operation County, District Court of Texas. v. 190th Harris et Rescu e —Nation of al, 92-34008, al., Cause No. et Houston Women 's Clinic, Inc., al., Operation defendants, et parties Rescue —Nation 2. Other to this habeas 92-34123, al, al., No. proceeding, appeared hearing Cause Jerry et by and Ed at the counsel wards, M.D., pro Operation et v. se. al. Rescu e —Nation 66 actually sug- read the order on ready.

defendants were Plaintiffs constable later, twice, gested street, presence as a in the defendants August possi- a week Mahoney, Benham, Wright. and hearing give date that would Jewitt ble for The court held each relator in con- prepare. defendants time to Defendants' district punishment tempt ordered them counsel indicated that because of deadlines and jailed cases, pay each fine and to be for prefer delay in other he would $500 they purged hearing August August up to months until them- until 13. On six contempt by paying the and temporary issued a selves of fine district court restrain- they hearing swearing that would abide ing order in each case and set the pay Relators refused to temporary injunc- on the court’s orders.6 applications They their and were August tion for 12.3 fines incarcerated. petitioned appeals by for relief the court of only Our record contains two of the corpus, that court habeas which denied. prohibited court’s orders.4 Both demon- They petitions their then filed this Court. strating plaintiffs’ prop- 100 within feet of prohibited corpus is a collateral attack on a erty. the orders also Habeas One of demonstrating contempt judgment.7 It is used to review within a defined area.5 unlawfully relator found to whether has been Each the relators was have Gordon, parte Ex imprisoned. 584 knowingly at least one of the or- S.W.2d violated Ellis, parte Ex (Tex.1979); 37 by demonstrating a restricted ders within 688 40 area. There is no doubt that relators were Tex.Crim. S.W. Tucci, Benham, has used chal- corpus

aware of the orders. Ma- Habeas also been Jewitt, order, honey, lenge Wright videotaped enforceability were con- tearing copies of orders of which is the basis up and an- violation entirely nouncing tempt.8 A The cases not been their intention to violate them. months; August hearing delayed part re- 3. The six the sheriff was to was more than already by plaintiffs they "punishment because then had moved to their lease them when served contempt hold period” they certain relators in based on purged of con- or when themselves August part request contrast, events of and in at the tempt. the sheriff was ordered hearing counsel. was Benham, defendants’ The never jail Wright Mahoney, until Jewitt conducted. they they punishment periods their served contempt. purged themselves of temporary restraining 4. We is- have the orders sued Cause No. 92-34008 and Cause No. 92- contempt judgment, 7. As collateral attack on a 34123. corpus permits only scope a limited habeas is, 5. The restricted area described as bounded corpus habeas has review. Limited it by part the west side of that of Fannin street remedy been be the available to held to facility which is west of Planned Parenthood’s for con- an individual’s incarceration review side one construction intervenor’s Cardwell, tempt. parte S.W.2d Ex part property; the east side of that of San Jacin- (habeas (Tex.1967) corpus allowed because no to Street is east Planned Parenthood's Warnasch, Wagner remedy by appeal); Berry parking a second Street lot and interve- (Tex.1956) (chal- Tex. property; portion nor’s of the side- lenge contempt by incarceration for must along Berry walks or the street one block of corpus). appeal The that no will lie habeas rule Street. boundaries in an at- The were shown best, contempt judgment of from a dubious tached exhibit. challenged. firmly seldom but entrenched and shape undoubtedly has served to This limitation required 6. trial court that the fines either be contempt development of the law Court’s per paid day out" at of $5.00 "served the rate in habeas cases. contempt. purging as one condition varied Tucci was conditions somewhat. Lesher, (Tex. See, e.g., parte S.W.2d 734 Ex obey to swear he would the court’s lawful 1983) restraining (temporary order re orders; without Terry and Slovenic were to swear to unenforceable); quired parte Ex Ed order; bond obey restraining temporary and Ben- (no monds, (Tex.1964) jurisdic Jewitt, ham, S.W.2d 579 Mahoney, Wright were to an- land); entry enjoin Ex tion on condemned to abide nounce in court intentions (Tex.1963) (injunc George, parte 364 S.W.2d 189 restraining temporary But while the order. law); similar, parte preempted federal labor Ex contempt tion purging were conditions (1962) Tucci, Rhodes, Terry, Tex. S.W.2d 249 consequences and Slo- varied: (court power to child jailed they order that remain purged had ordered until venic were Pierce, parte Tex. contempt, county); Ex "in no event” for themselves of

67 order). by relief of such Still other cases consistent as to when this broader obedience corpus permitted. habeas is Some the touchstone is have concluded view, allowing expansive taken an a collat- process. afforded due whether relator was any injunction attack of violates Genecov, 476, eral which See, Tex. parte Ex 143 e.g., cert, See, speech rights. e.g., constitutional (Tex.1945), denied, 186 225 S.W.2d Tucker, 76; Henry, 220 S.W. at 215 S.W.2d 733, 41, 66 S.Ct. 90 L.Ed. 436 326 U.S. espoused at 596. Other cases have a strict- (1945) process (principles of due “included” view, determining er limited to the trial jurisdiction question of the trial court’s jurisdiction. See, e.g., George, court’s 364 order); Lipscomb, to issue the 239 S.W. at 189; Rhodes, 249, 250- S.W.2d 352 S.W.2d (issue re- 1104 is whether a citizen is 51; 1101, Lipscomb, 239 S.W. 1103-04. liberty process, strained of his without due Some cases restrict their consideration “by which is meant his restraint jurisdiction subject the lower court’s hearing competent result of a before a See, jurisdiction. personal e.g., matter and tribunal, having jurisdiction subject of the Kimberlin, 60, parte 126 Tex. 86 Ex matter, notice, opportunity an after 717, (1935) against (injunction S.W.2d 720 heard”). pragmatically One case com- allegedly enforcement of unconstitutional standards, concluding that a bined law, if in tax even error on the law and the judgment be attacked because of a facts, jurisdic- was within the trial court’s jurisdiction in “lack of the court to render tion). Others, however, rely upon a broad- it, deprived or because the contemner was concept “jurisdiction,” using er three- process of of his without due law”. prong contempt test to determine whether Helms, 480, parte Ex 152 Tex. 259 S.W.2d (1) justified, inquiring jurisdiction was into: 184, 186 (2) subject-matter; jurisdiction of the of the Although various standards have been (3) person; authority of the court to judge enforceability of the or- used to particular judgment. parte render the Ex violated, consistently der relator the cases Duncan, 507, 675, 127 Tex. 95 S.W.2d 679 recognize afforded habe- review (1936), Britton, citing parte Tex. Ex 127 corpus upon is a collateral attack 85, (1936); 92 S.W.2d 224 40 Tinsley, S.W. permitted in (if judgment which should not be jurisdiction at 307 court is without every premise instance. This is the basic subject-matter, or parties, or lacks See, power e.g., rule. Rich- particular to make the order in the collateral bar case, Labunski, punish it contempt cannot or dis- ard E. Bar” “Collateral (1961), denied, 928, merits); Tucker, parte S.W.2d 424 cert. 366 U.S. 81 to review on the Ex tied 1650, (1961) (order 335, barring (1920) (injunction S.Ct. 6 L.Ed.2d 388 110 Tex. 220 S.W. 75 blocking upheld); Dilley, parte street Ex 160 beyond attempting to control free was 522, (1960) (injunction Tex. S.W.2d 334 425 issue). power See also Ex of the court to law); preempted by dell, parte federal labor Ex Twe 457, McCormick, parte 129 Tex.Crim. 88 S.W.2d 214, (in (1958) 158 Tex. 309 S.W.2d 834 Foster, (1935) orders); ("gag" parte Ex 44 104

junction law); preempted by federal Ex labor 423, (same); (1903) S.W. Ex Tex.Crim. 71 593 Lillard, 18, (1958) parte 159 Tex. 314 S.W.2d 800 933, 413, parte Warfield, Tex.Crim. S.W. (custody jurisdiction); order issued without Ex (Tex.Crim.App.1899) (equitable jurisdiction 315, parte Henry, 147 Tex. injunction); parte Tinsley, to issue Ex 37 Tex. (1948) (injunction against constitutionally-pro (1897), Crim. 40 S.W. sub aff’d Thomas, picketing); parte tected 591, Ex 141 Tex. Anderson, Tinsley nom. 171 U.S. (1943), 174 S.W.2d 958 reversed sub nom. (1898) (where 43 L.Ed. 91 the court Collins, Thomas v. 323 U.S. S.Ct. jurisdiction subject-matter, or without (1945) (statute injunction barring L.Ed. 430 parties, power or lacks to make the order in organizer soliciting union from union members case, particular punish it cannot for con Barrett, registering); parte without Ex 120 Tex. order); tempt parte such or disobedience of Ex (1931) (injunction against 37 S.W.2d 741 Ellis, (1897) 37 Tex.Crim. 40 S.W. holding general an election was outside the (questioning authority alimony to issue Castro, scope judicial power); parte Ex order, support discharging child relator on (1925) (order prohibiting Tex. 273 S.W. 795 Hall, grounds). parte Ex 854 S.W.2d remarriage year within one of divorce was with Cf. (Tex.1993) (underlying temporary order authority); parte Lipscomb, out Ex 111 Tex. contract, (1922) (witness upon premarital jailed S.W. based not interlocu over his criteria, attorney-client privilege tory support claim of was not enti- con unenforceable 68 however, contempt cases, eral Texas do not Amendment: The

Rule and the First Constitutionality principles of the collateral bar Enforcing Unconsti address of Orders, of tutional 37 Am.U.L.Rev. the merits relators’ rule— speech (1988); Tucker, Selig, Henry, Regulation Joel L. Street claims. See of McCormick, by Injunction: (discharging rela- Demonstrations Constitu and Foster tors), (refusing Bar and Thomas to tional Limitations on Collateral Pierce relators). Contempt, 4 discharge Rule Prosecutions for Rights-Civ.Lib.L.Rev. 135, 141 Harv.Civ. based on: The collateral bar doctrine is (1968); City v. Bir see also Walker of in the a that fair administration of belief 1824, 307, 388 U.S. 87 S.Ct. mingham, justice judge no can be a in his own man (1967). rule, in L.Ed.2d 1210 its most case, station, however exalted his howev- terms, general expressed by the Unit motives, righteous irrespective er his of Supreme ed Court in v. Kan States Howat race, color, politics, religion.... his 277, 181, 189-90, sas, 280- 258 U.S. S.Ct. may sympathize the petitioners’ One with 81, (1926): injunction “An 66 L.Ed. 550 impatient commitment to their cause. general juris duly issuing of a court of out respect judicial process for is a small But powers upon equity pleadings with diction price pay civilizing to for hand action, invoking properly its and served law, give abiding which alone can mean- upon persons parties made therein and ing to constitutional freedoms. obeyed jurisdiction, must be within Birmingham, 388 City Walker v. U.S. them however erroneous action 1832, 320-21, 18 L.Ed.2d 87 S.Ct. Essentially the same rule court be.” (1967). parte Warfield, was articulated Ex upheld contempt a citation for Walker (1899): Tex.Crim. 50 S.W. temporary restrain- parte violation of an ex [wjherever authority has the court to ing group order which ordered civil grant injunction, the writ of no matter rights protesters obey to an ordinance grant- irregularities may attend the what required be permit which obtained thereof, erroneously ing or however Contem- any parade advance of or march. granting court have acted temporary restraining argued that the nors same, injunction exists, long as the Amendment, and order violated the First undissolved, obeyed, it must be acknowledged Supreme Court party thereof the will held in violation be ques- there were constitutional "substantial If, however, contempt. has court no validity the order. tions” about the Id. jurisdiction subject-matter over the in- en- Even the which the order ordinance volved, power, by or if it has exceeded its determined to be unconsti- forced was later in a granting injunction matter be- an Nevertheless, held the Court tutional. injunction yond jurisdiction, its will judgment contempt, the appeal from a void, absolutely treated as and defen- precluded rule contemnors collateral bar punished case cannot dants such constitutionality challenging from alleged contempt for its violation. had they order violated. to The rule has been used bar collateral applied rule The collateral bar cannot be challenge even when the is attacks example, For the rule exception. without constitutionality jurisdiction court's and the generally apply only in “crimi- is deemed Wright, its order. See Federal Prac- actions, “punitive” contempt op- nal” 702. 2nd tice and Procedure: Criminal posed contempt “civil” “Civil” actions. v. 419 U.S. Meyers, See also Maness procure compliance future (1975); used 42 L.Ed.2d 574 Walker S.Ct. improper, If order it would an order. Birmingham, City U.S. upon (1967); purposeless to insist continued 18 L.Ed.2d United S.Ct. Thus, Workers, propriety compliance. review the 330 U.S. States v. United Mine barred.9 “Crimi- 91 L.Ed. 884 Sev- the order should not be Wright, contempt, against tempt prohibition 702. "Civil” in- due constitutional See debt). imposing past a fixed sentence con- imprisonment stead of contempt punishes patently nal” a violation of an outside the court’s authority act, facts, justifies order. When of an order under set of that a collateral violation See, punishment improper permitted. e.g., parte even if the order was attack is Ex Castro, (1925) respect, pre- in some Tex. the collateral bar rule S.W. 795 (order remarriage cludes prohibiting review of the order. within one year original divorce was without au exceptions may constitutionally Other be void); thority, Warfield, and therefore 50 required. challenge may A collateral be (indicating at S.W. that collateral allowed, example, a case where there only appropriate may attack is if it at once opportunity nowas for effective review n perceived no that condition of facts the order before it was violated. See jurisdiction). could confer Walker, 6, 388 at n. 87 U.S. 315 S.Ct. at rule, Green, n. The (distinguishing 1829 6 In re reasons for the collateral 369 bar however, 1114, compelling 82 8 are as as the reasons U.S. S.Ct. L.Ed.2d 198 (1962)); exceptions. for the As Wright, eloquently Walker sug at 702. As Walker § expresses, person may the idea a in- gests, may a case be in a “different consti tentionally violate a court order posture” if without petitioners attempted tutional consequence, grounds even if there are challenge injunction to in state courts order, reversing it, strikes at fundamen- violating delay before but met with were tal society. notions of order in a free This or frustration of their constitutional claims. is no less true when constitutional U.S. at at 388 87 S.Ct. 1830. See also are exception in issue. A blanket 530, 532, Ryan, United States v. U.S. speech rights rule are 1580, 1582, 4, n. S.Ct. n. whenever L.Ed.2d 85 claimed to infringed very makes it diffi- (1971) (proceedings to enforce a burden cult for trial to courts enforce order some or objectionable jury otherwise sub situations, volatile such as the one which is poena). may Another exception apply if an setting present proceedings. for the order is “transparently invalid.” See Mar Wilks, tin 790 n. U.S. The circumstances this case do not fall 2180, 2199, (1989) S.Ct. 104 L.Ed.2d 835 any exception within warranted to the col- (Stevens, J., dissenting); Matter Provi lateral bar rule. is true that It relators Cir.1986), Co., (1st dence Journal 820 F.2d 1342 only were afforded short time in to which dism’d, rt. U.S. 108 S.Ct. present plaintiffs’ ce their defense to suits 1502, 99 Wright L.Ed.2d 785 702 n. 19. and, if seek necessary, to relief from the This rule account for several of the appeals. temporary court of restrain- Texas free cases. Walker also im ing orders were issued less than a week plies, to extent, some that too sudden a planned protests. before the first The tim- procedural turn on the highway might run ing protests coincide —to guaran afoul additional constitutional Republican National Convention—was inte- tees, if, e.g., a rule in contravention of grally linked to content. In some practice suddenly adopted cases, earlier by undertaking without delay occasioned might notice.10 Other exceptions arise a direct order potentially attack on an could state deprive from law. party opportunity There be cases in of his to sought which order speak remedy.11 enforced is so without effective tempt, procure compliance by, requirement seeks to procedural for ex- not a case where a has ample, imposing unwary sprung upon litigant pri- indefinite confinement until been an when purges contempt. parte practice give the contemnor Ex did not him fair notice of its Werblud, (Tex.1976); Walker, 536 S.W.2d existence." U.S. at Wright, omitted). (citations 704. here, Selig, Regulation Court "We do observed: not deal 11. See Joel L. Street Demon- therefore, Injunction: with a by situation where a state court strations Constitutional Limita- regular past practice has followed a taining of enter- tions on the Collateral Bar Rule in Prosecutions mode, given procedural claims in a Contempt, Harv.Civ.Rights-Civ.Lib.L.Rev. Note, practice (1968); without notice has abandoned Defiance of Unlawful litigant Authority, (1970); the detriment of a who finds his claim 83 HarvJL.Rev. see by Walker, procedural foreclosed a novel bar. This is also 388 U.S. 87 S.Ct. at 1847 re- precise balance could not have struck This is not such case. Relators Amendment, it evidentiary hearing; First at- requested quired full have so, every it relators tempted not. received notice to do afforded they did After relators issued, decision, they challenge no its opportunity had made that the orders it attempt to them dissolved or was flawed because serious that decision attempt seek no re- They made no too and not because modified. restrictive Relators, fact, circum- by appeal.12 justified. were these review strictions were stances, or- seeking review of the not be allowed to uninterested in relators should ders, intent publicly their declared the court’s orders and es- spurn as evidenced regard le- without cape punishment. violate the orders gal process. deny I relief and remand would relators custody the sheriff. them the are similar

Relators’ circumstances corpus in a case those we described habeas century ago:

arising over half a ENOCH, J., Dissenting joins in this Opinion. moving modify or dissolve [I]nstead seeking [order], and instead same, appears hearing on relator

have a acquiesced in the fully

to have action he court until time at which [the restraining If the

violated order]. mat-

order was too broad and included clearly validity, it

ters of doubtful obey duty of relator to same and dissolution. seek a modification or BORDEN, INC., Fernandez Sam Kimberlin, 721. parte 86 S.W.2d at Ex Roy Cavazos pro- speech claims this Relators’ free precluded by ceeding should be the collater- v.

al rule.13 bar RIOS. David

No. D-3928. re- The cases the district court before of Texas. Supreme Court conflicting quired it to claims of balance protect group, right. To of one Aug. 26, 1993. to limit the the court was constrained rights of the other. The district court J., (Brennan, dissenting) ("[t]he ability U.S. 99 L.Ed.2d 785 to exer- (1988). protected protest at exer- cise a time when such protected would be effective must be cise suggest if even Some cases federal themselves”). beliefs by reviewing contempt aside citation not set invalid, violated is court because the order Carroll, generally Review

12. See William Frank issuing contempt judgment should court Restraining Temporary Orders Texas—An pun- opportunity to reassess whether have the Appealing Prospect, 46 Tex.Bar Journal given imposed, still the inval- ishment should 318-19, Walker, (1983). See U.S. at also idity of See United States v. Dickin- the order. Labunski, 1830-31; see Richard E. S.Ct. at also son, (1972) (vacating and 513-14 F.2d Amend “Collateral Bar" Rule and First remanding to allow it to decide to the trial court Enforcing Constitutionality Uncon ment: contempt judgment punishment whether Orders, 37 Am.U.L.Rev. citing stitutional appropriate), Dono- would still be deemed Co., Dallas, 408, 414, In re Providence Journal City v. U.S. S.Ct. van Cf. (1st Cir.1987) (en banc) (parties 1579, 1583, (1964), F.2d Dunn 12 L.Ed.2d (10th challenge "transparently States, Cir.1968). wishing invalid” F.2d United collaterally required flexibility apply- practice greater to first were court orders This allows corpus emergency good ing Our to seek bar rule. habeas make faith effort collateral court, available), permit practice, modify procedure howev- appellate does not from if relief dism'd, (1st Cir.1986), er. ing cert. F.2d 1342 C. Notes See 1819-1836, for federal Sw.Hist.Q. substituted demand 131— would have Newspapers conformity:

Notes

notes to reverse a restraining passed the ever No law shall adopt expression provision the sion to free of expression thought, opinions and of free the Tennessee 834 S.W.2d Constitution of 74-75, ideas, restricting at n. see 1845 write Journal at to Debates 94-95, preliminary whatever; but, and a a at vote to reverse print freely any subject requiring injuri- provision publications that "all every right, libelous abuse of that for the reputation” ous to female be "deemed false and responsible. person shall be inquiry without facts. See libellous" into the did not at 62. The Committee Journal 74-75, at 1845 Journal 1835 Debates at 303. suggestion confining abuse to include the clause, reputation As to the female the Court defamatory report to the Conven- conduct in its "Not concludes: even conventional limits on at See id. tion. sweeping scope curbed free free-speech guarantee.” sug- accepts apparent Only Davenport’s if one Davenport, See applies gestion expression to that the free clause state, fact, at n. 7. either S.W.2d no other language Brady’s proposed private can conduct now, has “conven- then or ever included such provision more than the be considered narrow constitution; most, limits” in at this tional its actually pre- adopted. If this not as issue was provided rule was statute. See Tex.Pe- above, Davenport, then the see n. 1 (1895). sented arts. 750 & 751 Code nal characterizing Convention’s Court erred in points As to the the Court Convention of rights. victory greater expression action as a similarly to two irrelevant occurrences. After Convention the 1845 lan- S.W.2d at 8. voted to retain Davenport provision’s] language,” the historical record recited ful attention to [the position. either asserted, does establish the Court “indicates a desire speech.” Texas to ensure broad Davenport’s proffered proof for these however, is, 834 S.W.2d at 8. There no exclusively to assertions is limited almost accomplished change that the was evidence impris- Stephen the fact that F. Austin was a careful or even a conscious choice 2, 1833, sending oned after his October framers and ratifiers. From the sur- ayuntamiento of Bexar. Al- letter Convention, appears viving of the it records though officials Mexican “conducted] “person” perhaps guilty plotting was a use was of treason to Austin Mexico,” best, or, from printer’s error at an editorial deci- withdraw Texas see Robert Weapon Ar- Hall, Style of the Committee on sion Remonstrance-Citizen’s Against Interference, rangement.32 Government’s (1990), soon Texans Tex.L.Rev. Finally, a “his- the Court offered broader Mexico had “incarcerated in concluded that origins torical review understand time, our dungeon, long one of and the intentions our liberties Texans citizens, for no other cause but a zealous at 19. of our forebears.” acceptance of our procure endeavor treasured state heri- From look “our constitution, of a establishment institutions,” tage, law and 834 S.W.2d at In- government.” state The Declaration rich the Court concluded that “[o]ur (1836), dependence Republic of Texas long-standing history demonstrates a com- reprinted Gammel, in H.P.N. Laws expres- mitment in Texas to freedom of at Austin of Texas sion,” implying id. thus “all that himself, Mexico, still least while encompasses unique Texas” somehow example as an controversy viewed the especial speech. Id. at 22. an devotion to reality. triumphing over “appearances” Stephen Exposición See F. Austin, Al Pub- “the The Court first concluded that au- (1835) De Texas unresponsiveness lico Sobre Los Asuntos thoritarianism Concerning [Explanation Public attempts Mexico to exercise [certain] translated Texas], 8 Tex. Affairs speech” protection of free and establish (Ethel Q. (1905) Zivley Hist.Assn. contributing were “a factor to Texas’ revo- Rather, trans.). independence,” id. at and that lution history, outset of this state’s Aus- Today plurality demonstrates “[f]rom priority.” longstanding concern for the freedom of Id. tin’s sugges- true, beginning with his expression, While both statements well be Rights, reading language Rights of the Bill of Bill Com- sion” on third 32. The draft

Case Details

Case Name: Ex Parte Tucci

Court Name: Texas Supreme Court

Date Published: Jun 30, 1993

Citation: 859 S.W.2d 1

Docket Number: D-2809, D-2819, D-2820, D-2821, D-2822, D-2823, D-2824

Court Abbreviation: Tex.