More on the case of convicted criminal and drunkard Rosemary Lehmberg: State v Hanson “Coercion of a lawful act by a threat of lawful action is protected free expression” [Darleen Click]
Eugene Volokh points out the indictment of Gov. Rick Perry appears to fly in the face of Texas Court of Appeals precedent
The theory thus seems to be that Gov. Perry “threat[ened]” “to take … action as a public servant” by vetoing the appropriations in “attempt[ing] to influence [Lehmberg]” in “specific performance of her official duty, to-wit: the duty to continue to carry out her responsibilities as the elected District Attorney for the County of Travis” (the last quote is from the indictment).
But — though I stress that I’m not an expert on this Texas statute — it seems to me that we’ve seen this movie before (okay, maybe playing in a small art house to a tiny audience). Here are the facts of State v. Hanson (Tex. Ct. App. 1994):
The state alleged that [County Judge Regina Hanson] intentionally and knowingly threatened to terminate the county’s funding of the salaries of a deputy district clerk and an assistant district attorney in an attempt to coerce the district judge into firing the county auditor and the county attorney into revoking a misdemeanant’s probation.
So we see here a threat to take action as a public servant in attempting to influence another public servant — a district judge — in specific performance of his official duty. What did the court say in Hanson?
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. […]
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.
And Perry responds —
Snow flurries spotted in Hell
Although some Democrats are calling for Texas Gov. Rick Perry’s (R) resignation after he was indicted by a grand jury on Friday, a number of left-leaning observers immediately panned the allegations as unimpressive.
Perry, an expected presidential candidate in 2016, is accused of “abuse of official capacity” and “coercion of [a] public servant” by publicly threatening to zero out a state prosecutor’s funding and then actually doing it. Several pundits, including former Obama campaign strategist David Axelrod, Clinton and Obama administration alum Jonathan Prince, Vox’s Matt Yglesias, and New York Magazine’s Jonathan Chait, wrote on Twitter they couldn’t see what the big deal was.
Tags: convicted criminal lehmberg, rick perry
They say a prosecutor could get a grand jury to indict a ham sandwich, and this always seemed like hyperbole, until Friday night a Texas grand jury announced an indictment of governor Rick Perry. The “crime” for which Perry faces a sentence of 5 to 99 years in prison is vetoing funding for a state agency. The conventions of reporting — which treat the fact of an indictment as the primary news, and its merit as a secondary analytic question — make it difficult for people reading the news to grasp just how farfetched this indictment is. […]
The theory behind the indictment is flexible enough that almost any kind of political conflict could be defined as a “misuse” of power or “coercion” of one’s opponents. To describe the indictment as “frivolous” gives it far more credence than it deserves. Perry may not be much smarter than a ham sandwich, but he is exactly as guilty as one.