Situation excellent: On Wednesday the Texas Court of Criminal Appeals affirmed the Beaumont Court of Appeals in Leax v. State.

When the Court of Criminal Appeals granted discretionary review on Leax, I thought it would be the culmination of almost four years of fighting that began with this post after I realized that section 33.021 of the Texas Penal Code, in which the Texas Legislature created a constitutionally valid offense in subsection (c) and then eliminated one of the elements that made it constitutional in subsection (d), was not constitutional.

The first litigation was in a case called Wheeler. I filed a habeas petition in the trial court in June 2014. The trial court denied relief, we appealed, and the First Court of Appeals allowed oral argument in April 2015. Oral argument went well, I thought—I wrote then that the opinion would “at least apply the correct standard of review,” that is, strict scrutiny.

Here’s the argument:

Disappointingly, the First Court did not apply the correct standard of review. It held that strict scrutiny (and the presumption of invalidity) did not apply.

Statutes will almost never pass strict scrutiny and the presumption of invalidity. They will almost never fail the intermediate scrutiny and presumption of validity that apply to content-neutral statutes. Whether a regulation is content based will almost always be outcome determinative.

And so battle lines were drawn: Is section 33.021 of the Texas Penal Code a content-based restriction or not?

I filed a petition for discretionary review (PDR) in Wheeler. The Court of Criminal Appeals refused it. No explanation required or given.

Writs, appeals, and PDRs followed on Fisher, Alvarez, Chapman, Radford, Mahmoud, Parker, and Leax. I raised the same issue in each case—is section 33.021 unconstitutionally overbroad under the First Amendment—but wrote a fresh PDR each time, with a different tone and a slightly different pitch. (I only had to get one granted, so there was no point in filing the same PDR twice.)

In September of last year the Court of Criminal Appeals granted PDR in Leax. It had not yet acted on the other six PDRs. It ordered oral argument on Leax on Valentine’s day.

That was a win. It’s hard for an elected court to hold a statute unconstitutional, but the Texas Court of Criminal Appeals has been one of the few with the fortitude to do so recently. And even if the Court of Criminal Appeals ultimately found, for the children, that section 33.021 met strict scrutiny, it would find that section 33.021 is a content-based restriction (which is the question on which it granted PDR).

And that would be epochal.

The Wheeler opinion, you see, got the question “is section 33.021 a content based restriction” wrong because of dicta in Ex Parte Lo suggesting that 33.021(c) restricts conduct rather than content.

“Conduct or content” is a false dichotomy. Some conduct—expressive conduct, symbolic speech—is speech, and all speech is conduct.

Post Lo, most Texas intermediate courts of appeals relied on its dicta to hold that statutes—not only section 33.021, but other speech-restricting statutes—were not content based (so that strict scrutiny, the presumption of invalidity, and other rules whose application statutes are not likely to survive do not apply).

These statutes include section 33.07 of the Texas Penal Code (Online Impersonation), section 36.06 of the Texas Penal Code (Retaliation), section 32.51 of the Texas Penal Code (Fraudulent Use or Possession of Identifying Information), and section 42.07 of the Texas Penal Code (Harassment).

Once the Court of Criminal Appeals has straightened out the law on what makes a regulation content based—perhaps reaffirming the test it stated in Ex parte Lo and Ex parte Thompson, “If it is necessary to look at the content of the speech in question to decide if the speaker violated the law, then the regulation is content based”—all of these statutes will be back on the table.

Because you have to look at the content of a communication to decide if the speaker violated the law, 33.021 is a content-based regulation under the Lo test. I was excited to argue the case before the Court of Criminal Appeals, and more excited when the State, in the first 20 seconds of its argument (mp3 audio, State’s argument begins at about 11:00), admitted that section 33.021 is a content-based regulation.

How could we lose?

Well, on procedural grounds, of course.

As well as Leax v. State, the Court of Criminal Appeals had granted PDR on Ex parte Ingram, a case out of San Antonio raising the same issue. Procedurally the two cases were different—as you might deduce from the titles (“styles”) of the cases, Leax was a postconviction appeal and Ingram a habeas appeal—but when the court handed down an opinion in Ingram in June, I didn’t see how the logic of Ingram didn’t apply to Leax as well: Because the State hadn’t “invoked” the “anti-defensive issue” of subsection (d), it wasn’t properly before the court.

Never mind that that logic is crazy talk (you know a court has gone off the rails when it has to invent a legal-sounding phrase like “anti-defensive issue,” rather than invoking a recognized principle to justify the result); the State didn’t have to invoke subsection (d) in Leax either; Mr. Leax knew that the State would “invoke” it at trial, and so he pled guilty in the face of the law that everyone knew would apply.

So I don’t know what took the court more than three months to decide in Leax. I guess they were looking for the right words for the procedural avoidance of the issue on which they had granted PDR and on which the State had confessed error: Is section 33.021 content based?

They found the words: The claim is cognizable, but there is not enough of a record that the State invoked subsection (d).

Never mind the procedural underpinning of an overbreadth challenge—the chilling effect of an overbroad statute. Never mind that this chilling effect exists whether the State invokes an “anti-defensive issue” or not.

This works mischief.

If the Texas Legislature writes a statute saying, “It is a felony to cause harm to a public official with words that constitute a true threat,” and includes as an “anti-defensive issue,” “It is not a defense that the words are not a threat of unlawful violence,” it has criminalized words that hurt public officials’ feelings (hurt feelings being harm for purposes of Texas criminal law) and the only way for someone to challenge this statute is to go to trial (the only way to force the State to invoke this “anti-defensive issue”) and lose.

That’s nutso. The chilling effect comes from the existence of the statute, not from the State’s application of it.

Will the Texas Legislature accept the Court of Criminal Appeals’ invitation to play this “anti-defensive issue” game? Bet on it.

We shall deal with that later. For now the Texas Court of Criminal Appeals has used its “anti-defensive issue” theory to avoid holding that section 33.021 is a content-based restriction. (Had they so held, they would have had to presume the statute unconstitutional, and then could have used the same rationale to exclude subsection (d) from their strict scrutiny analysis: “Section 33.021 passes strict scrutiny, as we narrowed it in Ingram and disregarding subsection (d), which the State did not invoke in this case.”)

What the Court of Criminal Appeals has not done is to admit that section 33.021 is content based or hold section 33.021 constitutional. What it has done is to give us a roadmap forward.

When the court decided Leax it also refused PDR on Fisher, Alvarez, Chapman, Radford, Mahmoud, Parker, and others. There are also people whose 33.021 trials were on hold awaiting a ruling from Leax.

Any of these people who do not have a straight-faced argument that they did not intend to meet, or that they were engaged in a fantasy at the time of the offense, will no longer be helpful in the constitutionality fight.

Any of those people who do have a straight-faced argument either that they did not intend to meet with the minors with whom they communicated, or that they were engaged in fantasy at the time of the offense, should have their lawyers talk to me. What we need, for their good and for the good of everyone else who has pled guilty to section 33.021(c), is trials.

At a trial, if you have a fantasy defense, we can put the State to the choice of a) invoking (that is, instructing the jury on or arguing to the jury) subsection (d); or b) letting the jury consider your fantasy defense. (If the jury knows you don’t have a straight-faced fantasy defense, they will perhaps strategically choose (b) and trust that the jury will reject your fantasy defense.) I’ll advise your lawyer on how to preserve the issue, and I’ll be there to write that part of your appeal.

Meanwhile, I have PDRs, intermediate appeals, or trial-court litigation pending on Online Impersonation, and Retaliation, and I have intermediate appeals or trial-court litigation pending on Unlawful Disclosure or Promotion of Intimate Visual Material (Texas Penal Code section 21.16) so the Court of Criminal Appeals will have many other opportunities to explain that content-based regulations really are content-based regulations.

Some day—and it may not be soon, but I’m playing the long game here—the Court of Criminal Appeals is going to face that issue, and the State is going to have to start trying to rebut the presumption of unconstitutionality on speech-restricting statutes.

I’ve got them just where I want them. Am attacking.