A Troubling Collision: Overbroad Coercion Statutes and Unchecked State Prosecutors

• Publication year: 2015

A Troubling Collision: Overbroad Coercion Statutes and Unchecked State Prosecutors

Elizabeth Rosenwasser

A TROUBLING COLLISION: OVERBROAD COERCION STATUTES AND UNCHECKED STATE PROSECUTORS

Abstract

Overbroad laws trespass on First Amendment rights of expression. Overbroad coercion statutes, which prohibit communication limiting a listener's legitimate options, exist in a variety of states and municipalities. By failing to narrowly prohibit unlawful coercive speech, these overbroad statutes criminalize a broad range of protected First Amendment speech. These statutes can be particularly problematic for political actors because they can criminalize political bargains and discussion characteristic of the American political system.

As the crime control model has grown, state prosecutors' charging power and discretion have vastly increased. Prosecutors face few meaningful checks on their behavior from other branches of government, but they can use overbroad coercion statutes to bring felony charges against—and therefore exert significant leverage over—political opponents. Using the Governor James R. "Rick" Perry indictment as a case study, this Comment explores the danger posed to legislators, executives, and judges by unconstitutionally overbroad coercion statutes in the hands of unchecked prosecutors.

This Comment argues for a judicial and legislative response to this problem and explains why legislators and judges should have a strong interest in invalidating and narrowing these overbroad coercion statutes. Ultimately, this Comment proposes a framework through which judges should invalidate these statutes and describes why legislators have a duty both to the Constitution and to themselves to proactively narrow these statutes to avoid overbreadth.

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Introduction

An overbroad law is one that infringes on individuals' rights to engage in protected First Amendment expression.¹ State statutes prohibiting coercive speech are an important example of the type of law the overbreadth doctrine targets. Although coercion statutes are designed to prohibit communication that "actually reduces a listener's legitimate options,"² many state coercion statutes also criminalize a substantial amount of protected "everyday" communication.³ These overbroad coercion statutes can criminalize a broad range of speech and political discourse.⁴

Narrowing overbroad coercion statutes is necessary in large part because of the growth of prosecutorial power over the last few decades.⁵ In fact, prosecutors enjoy virtually unchecked charging power and discretion,⁶ and overbroad laws provide temptation for prosecutors to target opposing politicians for prosecution.⁷ The American governmental atmosphere is filled

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with political bargains, even "threats" of sorts—"If you vote for this federal bill, I'll vote against this state law that you like"—and other similar phrases.⁸ An overbroad coercion statute can criminalize this type of everyday political language⁹ and therefore poses an enticing opportunity for prosecutors to investigate, indict, and punish political opponents.

The presence of overbroad coercion statutes in the hands of unchecked prosecutors thus signals a troubling imbalance of powers: while prosecutors experience few meaningful checks from legislators and executives, the threat of indictment for making a political threat may be one of the most powerful forms of leverage that prosecutors can exert on these individuals.

This problem is exemplified by the August 2014 indictment¹⁰ of former Texas Governor James R. "Rick" Perry.¹¹ The second count of Perry's indictment criminalized his threat to veto a spending bill in the event that Travis County District Attorney Rosemary Lehmberg refused to resign after her arrest for Driving While Intoxicated (DWI).¹² Because of its severe overbreadth problem, Texas's coercion statute technically criminalizes Perry's act of making a political threat to exercise his veto power, and Lehmberg's unit chose to begin an investigation against Perry under that statute's authority.¹³ Granted, the Texas Court of Appeals recognized the problem and invalidated the indictment,¹⁴ but the court could have created a more substantial precedent, and the decision hardly solves the larger problem of prosecutors potentially

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using overbroad statutes as a tool to punish and control political opponents. This Comment posits a method for other government actors to prevent these kinds of unduly strategic prosecutions in the future.

This Comment proposes that because trying to curb prosecutorial charging power is in many ways an exercise in futility, this problem should be handled in two ways. First, defense attorneys should raise and courts should consider overbreadth challenges in every coercion prosecution. If the statutes are overbroad, state court judges should invalidate the statutes through an overbreadth analysis modeled on the Oregon Supreme Court's decision in State v. Robertson and its subsequent jurisprudence.¹⁵ Second, in the event that coercion charges have not yet been filed, legislatures should proactively evaluate their states' coercion statutes for overbreadth problems and tailor them where necessary.

This Comment proceeds in four parts. First, Part I provides a background on the Supreme Court overbreadth doctrine and then explains state implementation of the overbreadth doctrine in the context of coercion statutes, using the Oregon approach defined in State v. Robertson as a springboard.¹⁶ Second, Part II explains the recent growth of prosecutorial power and discusses legislative, executive, and judicial strategies for curtailing that power. Then, Part III uses the Governor Perry indictment as a case study to show the dangerous collision of overbroad coercion statutes and prosecutorial power. Finally, Part IV proposes the adoption of the Robertson framework by state judiciaries and advocates for legislative narrowing of state coercion statutes.

I. Background: Overbreadth Analysis and Coercion Statutes

This first section in this Part discusses the development of the Supreme Court's overbreadth doctrine and explains how the Court analyzes overbroad statutes. The second section of this Part examines the nature of state coercion statutes and discusses State v. Robertson,¹⁷ a particularly useful state supreme court decision that, this Comment argues, created an ideal framework for analyzing overbroad state coercion statutes.

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A. Supreme Court Overbreadth Analysis

This section explains the development of the overbreadth doctrine by the Supreme Court over the course of the twentieth century. It shows how the doctrine originally developed, explains the difference between the overbreadth doctrine and the alternate as-applied method for constitutional challenges, and addresses the Court's continuing developments of the doctrine.

Until the mid-twentieth century, the Supreme Court used an as-applied balancing test to evaluate overbroad laws.¹⁸ In that approach, the Court judged the constitutionality of a law based on whether the law specifically infringed upon the rights of the particular individual bringing the action.¹⁹ This as-applied method balances the importance of the legislative policy advanced by the law against the specific expression in which the individual bringing the suit had tried to engage.²⁰ If the Court finds that the law overreached by prohibiting the particular expression at issue, the as-applied method "allows the law to operate where it might do so constitutionally," while also "vindicat[ing] a claimant who shows that his own conduct is within the [F]irst [A]mendment."²¹

As the twentieth century progressed, the Court began to develop a new position on overbroad statutes, a position known as the overbreadth doctrine.²² The modern overbreadth doctrine originated in Thornhill v. Alabama, where the Supreme Court held that a statute that broadly swept over and thus prohibited protected communications was facially invalid.²³ The Court further developed the overbreadth doctrine in United States v. Robel, rejecting the prior as-applied balancing approach in favor of facial challenges, holding that "when legitimate legislative concerns are expressed in a statute which imposes a substantial burden on protected First Amendment activities, Congress must achieve its goal by means which have a 'less drastic' impact on the continued vitality of First Amendment freedoms."²⁴ Although the Court explained that it

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measured the validity of the challenged statute's goals against First Amendment protections, it explicitly stated that it had "in no way 'balanced' those respective interests."²⁵

Professor Lewis D. Sargentich's leading piece on the overbreadth doctrine highlights the court's standard and process for engaging in overbreadth analyses.²⁶ First, for the court to even undertake an overbreadth analysis, the type of expression or conduct affected by the challenged law must be so substantially involved in First Amendment interests that a legislative failure to narrowly focus the law would result in a chilling effect.²⁷ Next, Sargentich explained, the Court must assess the statute's "area of impact" to determine whether the conduct affected by the law is to a "substantial extent . . . the kind of expressive and associational behavior which at least has a colorable claim" to First Amendment protection.²⁸ Finally, if the law is unconstitutionally overbroad, the Court may attempt to save it by creating a per se rule of privilege, "carv[ing] away a class of applications that represents substantially all of a law's impermissible coverage."²⁹ In the doctrine's earlier years, the Court almost always chose to facially invalidate challenged statutes instead of carving out these narrow rules.³⁰ Although recently the Court has retreated slightly from its original proclivity toward facial invalidation,³¹ Professor Matthew D. Adler has argued that "many, perhaps even most of the...