Eugene Volokh explains that there is reason to believe the statute under which Rick Perry was indicted is unconstitutionally vague and overbroad. As the title of this blog post indicates, I am certainly inclined to agree based on the facts and based on Professor Volokh’s analysis. From the ruling in State v. Hanson, which is quoted in the Volokh post:
Coercion of a lawful act by a threat of lawful action is protected free expression. See [Wurtz v. Risley, 719 F.2d 1438, 1441 (9th Cir.1983)]. Could Judge Hanson threaten to use her lawful authority and prerogatives of office to coerce other public officials into taking lawful actions which she or the commissioners’ court deemed expedient or desirable, or should she refrain from doing so out of fear of prosecution? What is and what is not lawful conduct cannot be left to such conjecture. Section 36.01(1)(F) was not drawn with the narrowness and precision required when legislating within the realm of the First Amendment.
A preeminent purpose of the First Amendment is to guarantee free and unfettered political discussion within government and among the citizenry. Consequently, those who enter the political arena are fair game for sharp attacks inflicted by both the electorate and the elected. The hurly-burly world of courthouse politics is an arena where robust debate, often accompanied by blunt, caustic and even intemperate and vituperative language, is the by-product of public officials clashing over divisive issues. However, as long as the means are peaceful and their actions lawful, the boundaries of their political debate cannot be measured for constitutional protection by conventional standards of acceptability.
Freedom of speech must encompass the liberty of elected officials to discuss matters of public concern without prior restraint or fear of punishment. A vague statute that potentially could punish protected political debate violates due process because of its chilling effect on the exercise of that essential right.
Section 36.01(1)(F) was unconstitutionally vague when applied to Judge Hanson’s alleged conduct. This constitutional defect was transmitted to section 36.03(a)(1) by the impermissibly vague definition of “coercion.” These penal provisions violated due process because they did not give Judge Hanson fair notice of what type of threat was prohibited, failed to provide a clear, objective standard by which those charged with enforcement could assess her alleged conduct for its legality, and had a potential of inhibiting the exercise of her protected free expression as a public official.
Professor Volokh continues:
Now maybe this could be read as making the statute no longer vague, by implicitly making it clear (given the addition and then removal of the “unlawfully”) that threats of lawful action as a public servant would indeed be a crime. Yet this would leave the statute as unconstitutionally overbroad, given the court’s statement that “Coercion of a lawful act by a threat of lawful action is protected free expression,” at least in a context such as Hanson’s — or Perry’s.
Even without Hanson, it seems to me, the statute — as understood in the indictment — is unconstitutionally overbroad. It would, for instance, punish clearly protected speech such as, “If you Legislators enacts a bill with this language rather than the version I like, I will veto it,” since that too would be “threat[ening]” “to take … action as a public servant” by vetoing the bill in “attempt[ing] to influence” legislators in “specific performance of [their] official duty,” namely drafting and enacting legislation. But Hanson strikes me as even more clearly authoritative on the matter.
I am going to be bold and bet that Governor Perry will survive this indictment. I am going to be bolder still and bet that anyone who has applauded the indictment and called on Governor Perry to step down–I am looking at you, Texas Democratic party–is going to end up looking rather bad in the relatively near future.