Freedom of speech is the “indispensable condition” of “nearly every other form of freedom.”1 Ignoring this principle, the Texas legislature recently sought to constrain local officials’ speech on politically important issues. In May 2017, Texas adopted Senate Bill 42 (SB 4). The law punished cities, counties, community colleges, and their employees and elected officials for “adopt[ing], enforc[ing], or endors[ing] a policy” that limited federal immigration enforcement.3 SB 4 not only prohibited local government entities from immigration-related actions; it also restricted individuals’ speech about those actions.4 Recently, in City of El Cenizo v. Texas,5 the Fifth Circuit preliminarily enjoined SB 4 only so far as it prohibited elected officials from endorsing certain immigration policies.6 The court left the same provision regarding endorsement intact for appointed officials and other employees.7 Although judicial restraint may have counseled in favor of this narrow holding, First Amendment values and the circumstances of the case should have pushed the court to uphold the plaintiffs’ facial challenges.
The Texas state legislature passed SB 4 in May 2017.8 During the bill’s drafting, Texas Governor Greg Abbott explained the purpose of the bill as “putting the hammer down” on sanctuary cities.9 He promised to “assert[] fines” and “seek[] court orders” to put officials in such cities “behind bars.”10
As passed, SB 4 contained two main components. First, SB 4 required local law enforcement to comply with federal ICE detainer requests.11 Second, SB 4 mandated that a “local entity” could not “adopt, enforce, or endorse” policies under which the entity “prohibit[ed] or materially limit[ed]” immigration enforcement.12
Under SB 4, a “local entity” included the “governing body” of cities and counties, as well as the officers and employees of that entity, including the sheriff, local police department, and district attorney.13 SB 4 imposed civil14 and criminal15 penalties. Local entities found to have violated SB 4 were subject to $1000 to $1500 fines for a first violation and $25,000 to $25,500 fines for subsequent violations, with each day of continuing violation counted as a separate violation.16 Elected or appointed officials in violation were also subject to removal from office.17
Immigrants’ rights groups criticized SB 4 as “likely to deter business[]” and harmful to public safety.18 The Texas Major Cities Chiefs and the Texas Police Chiefs Association also expressed opposition to the bill.19 Several Texas cities, counties, local officials, and advocacy groups challenged SB 4 before it went into effect, seeking a preliminary injunction.20
The district court21 issued a preliminary injunction in August 2017, finding the plaintiffs likely to prevail on several claims.22 The court found that SB 4’s prohibition on the endorsement of certain policies (“endorse provision”) violated the First and Fourteenth Amendments for three reasons.23 First, the court found that the endorse provision was unconstitutionally overbroad.24 The court explained that the First Amendment protects “[s]tatements by public officials on matters of public concern.”25 Public officials, “[w]hether elected, appointed, or otherwise employed,” have the same First Amendment rights as private citizens to speak on matters of public concern such as immigration enforcement.26 SB 4 silenced the speech of public officials on that issue, and so “reache[d] a substantial amount of constitutionally protected conduct.”27 The law constrained a “long list of identified speakers” and had no time, place, or manner restrictions.28 Even the bill’s author could not explain the full reach of the endorse provision, except that he intended for it to be sweeping.29
Second, the court found SB 4 discriminated by viewpoint.30 The law targeted and punished speakers on the basis of their views on local immigration policy.31 Speech critical of existing immigration law was effectively prohibited, while speech favoring it was permitted.32 Third, the court found SB 4 impermissibly vague.33 The statute did not specify what conduct or speech constituted “endorsement.”34 It therefore failed to give citizens fair notice and could enable arbitrary enforcement by the state.35 In light of these failings, the district court enjoined several provisions of SB 4.36 Texas then appealed the preliminary injunction.37
The Fifth Circuit affirmed in part and vacated in part.38 Writing for the panel, Judge Jones39 upheld nearly all of SB 4, save for the endorse provision as applied to elected officials.40 Judge Jones explained that the word “endorse” was not “readily susceptible” to a narrowing construction that would avoid constitutional concerns about prohibiting the core political speech of elected officials.41 Texas had argued that the court should interpret “endorse” to mean “sanction” — “the use of official authority to ratify or authorize” — so that the endorse provision would affect only official speech.42 The court rejected this interpretation, reasoning that it would render “endorse” surplusage, because SB 4 already included the verbs “adopt” and “enforce.”43 The court then acknowledged that elected officials’ “endorsement” of policies contrary to SB 4, without an accompanying action to “adopt” or “enforce” such policies, was core political speech.44
Having rejected Texas’s attempt to narrow the reach of the endorse provision, the Fifth Circuit then conducted a bifurcated analysis of the provision’s effect on elected and nonelected officials. As to the former, the court explained that SB 4 proscribed the core political speech of elected officials by banning those officials from endorsing certain local policies.45 Under the First Amendment, regulations of “the substance of elected officials’ speech” are subject to strict scrutiny.46 Texas had already conceded that if “endorse” could not be construed narrowly, the provision would be unconstitutional as applied to elected officials.47
By contrast, the Fifth Circuit provided two justifications for refusing to enjoin the endorse provision for nonelected officials and employees of local government entities. First, the Fifth Circuit reasoned that those individuals might be required to obey SB 4 as “government speech.”48 The government speech doctrine allows the state to advance its viewpoint through speech by public employees pursuant to their official duties.49 Second, the court declined to consider whether SB 4 was overbroad in that it constrained local government employees’ private speech. The Fifth Circuit noted that such employees were not plaintiffs in the instant case,50 and explained that future as-applied challenges were preferable to “‘gratuitous wholesale attacks’ under the overbreadth doctrine.”51 The court rejected each of the remaining claims.52
The Fifth Circuit could have chosen to analyze the endorse provision in terms of the First Amendment doctrines of overbreadth and viewpoint discrimination, rather than solely in terms of elected officials’ speech. Judicial restraint may have counseled in favor of the latter route. But the circumstances of the case and underlying First Amendment values should have pushed the court to take the former approach. The Fifth Circuit should have evaluated the overbreadth and viewpoint discrimination issues in City of El Cenizo. Those analyses likely would have led to a ruling in the plaintiffs’ favor. Ultimately, City of El Cenizo demonstrates why judicial restraint sometimes ought to give way in order to vindicate First Amendment values.
Viewpoint discrimination and overbreadth are two different types of facial challenges under the First Amendment.53 The viewpoint discrimination analysis asks whether the government has regulated speech on the basis of its substantive content or viewpoint.54 A government statute that does so explicitly is presumed unconstitutional,55 with the government bearing the burden of proving otherwise under strict scrutiny.56 The overbreadth doctrine, on the other hand, “prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.”57 Courts conducting the overbreadth analysis must construe the statute at issue and determine if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”58
The Supreme Court has framed the First Amendment overbreadth doctrine as a “departure from traditional rules of standing”59 that allows litigants “unharmed by the defect in a statute” to challenge the potential unconstitutional application of the law to others.60 This relaxation of usual standing rules protects third parties whose speech might be chilled by a challenged statute. It also incentivizes legislatures to be precise when drafting laws affecting expression.61 The Supreme Court has indicated that as-applied challenges should “ordinarily” be considered before overbreadth challenges.62 The practical result of this approach, as explained in Brockett v. Spokane Arcades, Inc.,63 is that a court generally cannot conduct an overbreadth analysis where the plaintiff has successfully brought an as-applied challenge in the same case.64 Although Brockett has been criticized65 and followed inconsistently,66 it provides support to lower courts seeking to avoid an overbreadth analysis.67
The Fifth Circuit took advantage of Brockett in precisely this way. The court disposed of the City of El Cenizo plaintiffs’ claims by focusing on SB 4’s application68 to elected officials. Texas had already conceded that Supreme Court precedent barred the state from punishing elected officials on account of their political speech.69 Having resolved the plaintiffs’ as-applied challenge, the court refused to consider the plaintiffs’ challenges regarding overbreadth and viewpoint discrimination. In doing so, the Fifth Circuit implicitly but misguidedly invoked the principles of judicial restraint underlying the Brockett line of cases. These include: (1) the desire to avoid “premature interpretation of statutes on the basis of factually barebones records”;70 (2) judicial efficiency in avoiding “consideration of many more applications than those immediately before the court”;71 (3) constitutional avoidance in not “anticipat[ing] a question of constitutional law in advance of the necessity of deciding it”;72 (4) not “short circuit[ing] the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution”;73 and (5) allowing state courts to construe state statutes in the first instance.74
These reasons for judicial restraint, while valuable in general, have limited force in considering the plaintiffs’ viewpoint discrimination and overbreadth claims in City of El Cenizo. First, the case did not present an undeveloped or ill-litigated fact pattern. The alleged harm to public employees was so proximate to the case that both the plaintiffs and the state briefed the issue of First Amendment protection for public employees, and the district court assessed it.75 Second, judicial economy weighed in favor of addressing harm to public employees. The Fifth Circuit’s decision forces those individuals to file a new suit, wasting courts’ time and resources.
Third, constitutional avoidance should not factor as heavily where a constitutional harm already exists.76 SB 4’s endorse provision clearly applies to some protected speech, because it regulates individuals’ political speech and has no time, place, or manner restrictions. There is a “realistic danger”77 that SB 4 will compromise the speech of public employees by chilling their expression while a new suit is pending.78 This chilling makes it unlikely that as-applied challenges would properly vindicate First Amendment interests.79
Fourth, courts’ typical concern about “short circuit[ing] the democratic process” should not apply where, as here, the challenged law itself short circuits the democratic process by censoring public debate. If, as the plaintiffs alleged, SB 4 constituted viewpoint and content discrimination on a matter of high public salience, judicial intervention would likely protect democratic deliberation, rather than harm it. Fifth, the traditional inclination to remand cases involving construction of state statutes to state courts could not have played a role in this case, because the Fifth Circuit began its opinion by construing SB 4’s endorse provision. The Fifth Circuit did not need to — and should not have — delayed analysis of the overbreadth issue in this case.80
These considerations counseled in favor of an exception to the judicial restraint principles expressed in Brockett. The Fifth Circuit ought to have considered the plaintiffs’ overbreadth and viewpoint discrimination claims, despite the disposition of their as-applied challenge. In doing so, the court would have actually vindicated the purposes underlying the First Amendment overbreadth doctrine: to “ensure that lawmakers regulate speech-related activities with great precision”81 and to avoid “chilling the First Amendment rights” of parties not before the court.82 The Fifth Circuit should have conducted a facial analysis.
If the court had taken up the facial challenge, it likely would have found for the plaintiffs on both overbreadth and viewpoint discrimination grounds. SB 4’s endorse provision likely would have failed an overbreadth analysis. The statute has no time, place, or manner restrictions. It applies to almost all local officials and employees, regardless of their connection to immigration policy. Even with the Fifth Circuit’s injunction related to elected officials, SB 4’s endorse provision could forbid a janitor from speaking to his neighbors at a town hall, a secretary in a mayor’s office from joining a pro-immigration advocacy group, or an engineer at a local water district office from writing an op-ed for her neighborhood newspaper.83 SB 4’s overbreadth is underscored by its author’s statements,84 which indicate that the endorse provision was intended to be inexact. These flaws remain even after elected officials are removed from SB 4’s reach. Government employees are subject to the constraints of the Garcetti–Pickering85 Garcetti v. Ceballos, 547 U.S. 410, 421 (2006) (“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes . . . .”); Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968) (“[S]tatements by public officials on matters of public concern must be accorded First Amendment protection . . . .”). line of cases: employees retain First Amendment protection for their statements on matters of public concern, so long as the statements do not interfere with and are not made pursuant to their official duties.86 SB 4 on its face reaches many examples of such protected speech.87 The Fifth Circuit ought to have struck down the provision in recognition of “the need for precision in drafting to avoid conflict with first amendment rights.”88
SB 4’s endorse provision also facially violates the First Amendment because it discriminates on the basis of viewpoint. Texas conceded during oral argument that a national debate regarding immigration enforcement is ongoing.89 SB 4 allows speech on one side of this debate and not the other. The Fifth Circuit ought to have recognized this imbalance and applied strict scrutiny to SB 4’s endorse provision. Texas failed to demonstrate that the provision advanced a legitimate state interest.90 Even if Texas had made such a showing, the provision was not narrowly tailored: it covered both the official and private speech of all elected officials, appointed officials, and employees of all local government entities in the state, regardless of whether those individuals have an official role related to immigration enforcement. SB 4’s prohibition amounts to censorship of citizens’ private speech on matters of public concern.
By upholding SB 4’s viewpoint-based and overbroad restrictions, the court has made it more difficult for Texans to engage in deliberative democracy. SB 4 muzzles local government officials and employees who possess immigration-related expertise that could be useful for policy discussions, such as law enforcement agents and public benefits administrators. SB 4 also silences officials and employees in roles unrelated to immigration, restricting their ability to contribute to local debates as private citizens. This outcome impoverishes public discourse.
In disposing of the City of El Cenizo plaintiffs’ First Amendment claims on the narrowest grounds possible, the Fifth Circuit failed to give effect to the purposes of the First Amendment. Given that the case was in a preliminary injunction posture, the court should have been especially sensitive to the risk of chilling citizens’ speech as proceedings continued. It should have recognized the egregious threat to expression posed by a statute silencing citizens’ speech on matters of public concern, with no restriction and on the basis of viewpoint. The Fifth Circuit may never see an as-applied challenge to SB 4’s endorse provision by a public employee. But that silence won’t necessarily mean the court was right to favor judicial restraint — instead, it may mean that SB 4 successfully chilled valuable speech.