Cargo-Cult Judging

The State may lawfully proscribe communicative conduct (i.e., the communication of ideas, opinions, and information) that invades the substantial privacy interests of another in an essentially intolerable manner.”

Scott v. State, 322 S.W.3d 662, 668–69 (Tex.Crim.App. 2010).

Yes, the Supreme Court used some of those words in Cohen v. California. But those weren’t all of the words:

The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.

The Court there wasn’t talking about protecting the substantial privacy interests of the subject of speech, but of those hearing it. And even that was dictum—Cohen v. California was the “Fuck the Draft” case, and the Court held that wearing a “Fuck the Draft” jacket was constitutionally protected.

It should be taught in judging school that a case in which a restriction is held unconstitutional never supports the proposition that another restriction (not before the court in that case) is constitutional.1

During the same term as Cohen the Court recognized the difference between protecting people from hearing speech, and protecting people from being the subjects of speech:

Among other important distinctions, respondent is not attempting to stop the flow of information into his own household, but to the public.

After Scott, the “essentially intolerable invasions of substantial privacy interests” language appeared as dicta in the Court of Criminal Appeals’ opinion in Ex parte Thompson, and then as a basis for the decision upholding a statute intended to protect the subjects of speech in the First Court of Appeals’ Horhn v. State.

The parties didn’t brief that argument in Horhn, but some enterprising clerk on the First Court discovered the language, and like a jailhouse lawyer who seizes on a phrase of dicta and builds a fanciful castle of not-quite-law around it, … seized on it and built a fanciful castle around it.

Except that a court of appeals opinion is law, so it’s a fanciful castle of law, which other courts will use to justify other content-based restrictions on speech.

Where will it appear next? It’s so exciting!


  1. JK LOL Texas judges don’t go to school, they get their wisdom from just being elected. 

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