There were, until this week, two important questions in our First Amendment litigation, which had been decided adversely to us in Texas criminal-free-speech cases.
First, in our challenges to Texas’s harassment statute, five judges of the Court of Criminal Appeals in Barton and Sanders held that a statute forbidding a person, with the intent to annoy, sending “repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another” does not “implicate” the First Amendment. Does such a statute not implicate the First Amendment?
Second in 2010’s U.S. v. Stevens, the United States Supreme Court struck down the federal crush-video statute because it targeted speech that was not in any recognized historically unprotected category. "From 1791 to the present," wrote the court, “the First Amendmen…