Is the Texas terroristic threat statute so broad it violates the First Amendment?
At the Texas legislative hearing on Mass Violence Prevention & Public Safety on Thursday, Rep. Joseph Moody of El Paso asked me whether Texas Penal Code §22.07, particularly part (a)(5), had been found to be overbroad or otherwise invalidated by courts on First Amendment grounds.
I told him I wasn’t aware of any cases ruling that, but I was glad to take a look. He said he would hold me to that. So here’s my answer.
First of all, no, a court has not ruled that the First Amendment invalidates the Texas terroristic threat law. That law reads:
(a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:
(1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies;
(2) place any person in fear of imminent serious bodily injury;
(3) prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place;
(4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service;
(5) place the public or a substantial group of the public in fear of serious bodily injury; or
(6) influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.
Rep. Moody pointed out that while part (a)(2) required making a threat that placed a person in “fear of imminent serious bodily injury,” part (a)(5) did not have the similar requirement that the threat be “imminent,” but rather just would put “the public in fear of serious bodily injury.” That language may render it overly broad under the Supreme Court’s rulings on the “true threat” exception to the First Amendment.
One Texas court did review this question relatively recently, but it was an unusual case coming on a habeas corpus petition, and the court declined to publish its decision, meaning it’s not usable as precedent. In 2015, the Third District Court of Appeals in Austin declined to grant the habeas petition of a teenager charged with making a terroristic threat when he posted on Facebook that he would “shoot up a kindergarten, watch the blood rain down and eat the beating heart out of one of them.” The case received a lot of attention nationally, particularly when the teenager argued that he was just posting frustrated, dumb comments after a bad night of videogaming.
He was charged specifically under §22.07(a)(4) (causing interruption of public services) and (a)(5) (putting a substantial portion of the public in fear of serious bodily injury). The court passed on a chance to strike down the law on overbreadth grounds, saying the language was not impermissibly vague because it they “give a person of ordinary intelligence fair notice of the prohibited conduct.” The court also declined to grant the habeas petition as applied to the defendant, finding that the statement was plausibly a “true threat,” a fact that could be determined by the trial court.
After five years of facing felony prosecution, the defendant pleaded guilty to a misdemeanor of “filing a false charge or alarm” and got time served as a penalty. The terroristic threat charges were dropped.
The Court of Appeals for the Second District (in Fort Worth) also considered a challenge to §22.07 on First Amendment grounds. It held that the First Amendment did not invalidate a conviction when a defendant mouthed off to Judge Deborah Nekhom. “Let’s do it, Nekhom. It’s me and you now,” the man said, as he was being escorted away from a hearing and placed into a holding cell by bailiffs. The judge said she took this as an imminent threat of serious bodily injury, which would fall under part (a)(2) of the statute. The man argued that he was merely voicing his frustration, not intending to communicate a threat, and thus the statement was protected free speech. The appeals court found that the context (the man was said to be displaying “aggressive body language” and “bowed his chest out”) was sufficiently dangerous to justify that this was a “true threat” and thus not deserving of First Amendment protection.
In summary — no court has ruled specifically, as precedent, that the portion of the terroristic threat statute regarding threats to the general public in the Texas Penal Code is overbroad or vague to the point that it violates the First Amendment. Likewise, no court has found that it would survive constitutional scrutiny either, though the way the two appellate courts have handled challenges to §22.07 under the First Amendment seem to point to the likelihood that the statute is constitutional on its face. As applied to particular defendants and situations, it remains subject to future challenges.