Threats may portend either lawful or unlawful action. First Amendment protection is extended to the former but not the latter. Therefore, a criminal statute that seeks to punish threats must clearly distinguish between an actionable or true threat and protected speech.
Judge Hanson had to guess at the meaning of section 36.03(a)(1) and its application to her official conduct because section 36.01(1)(F) [now 1.07(a)(9)(F) -EV] failed to give fair warning of the nature of the threat prohibited. Did the term “threat” encompass a threat of lawful action or only prohibit a threat of unlawful action?
Judge Hanson was the budget officer for Bosque County and the presiding officer of the commissioners’ court. She had jurisdiction over misdemeanants on probation. Bosque County could legally terminate its funding of employees in the district attorney’s office or district clerk’s office, and Judge Hanson could legally request the county attorney to institute proceedings to revoke a misdemeanant’s probation. Likewise, the district judge had the legal authority to terminate the county auditor, and the county attorney was the appropriate official to file a motion to revoke a misdemeanant’s probation. Assuming the allegations were true, Judge Hanson could have lawfully taken the actions threatened, and the district judge and county attorney, had they acted as she desired, would have acted lawfully.
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.