### REVISED August 9, 2018
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 30667

TRAVIS SEALS; ALI BERGERON , Plaintiffs

– Appellees ,

versus BRANDON M C BEE ; ET AL., Defendants, JEFF LANDRY, Attorney General, State of Louisiana , Intervenor

– Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana

Before SMITH , WIENER , and WILLETT , Circuit Judges

. JERRY E. SMITH, Circuit Judge :
Louisiana Revised Statute s § 14:122 criminalizes “the use of violence, force, or threats” on any public officer or employee with the intent to influence the officer’s conduct in relation to his position. Travis Seals threatened polic e United States Court of Appeals Fifth Circuit 

### FILED August 3 , 2018 Lyle W. Cayce Clerk Case: 17-30667 Document: 00514592963 Page: 1 Date Filed: 08/09/2018No. 17

- 3 0667

2 when arrested ; he facially challenges Section 14:122 as unconstitutionally overbroad in violation of the First Amendment. The district court agreed with Seals. Because the meaning of “threat” is broad enough to sweep in threats to take lawful, peaceful actions

— such as threats to sue a police officer or chal

lenge an incumbent officeholder

― Section 14:122 is unconstitutionally over

broad . We affirm the judgment invalidating it.

I. In December 2014, Seals and Ali Bergeron were arrested for conduct not
sp ecifically reflected in the record. Any charge was ultimately dismissed or refused by the district attorney (“DA”)

. It appears that a neighbo r accused Seals and Ber geron of aggravated assault , and the police responded. According to Seals, he was pepper

- sprayed and verbally objected to the arrest, threat

ening “to make law ful complaints” about the officers’ conduct. According to the officers, Seals vio lently resisted and “repeatedly made thr eats of physical harm.” 1 Ulti mately, those disputes are immaterial

. Seals and Bergeron filed a complaint against the arresting officer

— Brandon McBee

― in September 2016, claiming malicious prosecution, conspir

acy, and a First Amendment violation. The d istrict court permitted Louisiana to intervene to defend the constitutionality of Section 14:122. Plaintiffs then moved for partial summary judgment on their First Amendment claim, alleg

ing that Section 14:122 is facially invalid as overbroad and content

- based. Louisiana cross - moved for summary judgment, replying that plaintiffs lack standing to chal lenge Section 14:122 because they seek only injunctive relief but face no threat of future injury because no charges have yet been brought

.

1 Seals also avers that he was “charged” by the police with violating Section 14:122. Yet Lou i siana maintains that police officers don’t charge suspects; DAs do that

. See L A

. C ODE C RIM

. P. art. 61; L A

. C ONST . art. V, § 26(B) (both providing that DA s have the power to charge). Case: 17-30667 Document: 00514592963 Page: 2 Date Filed: 08/09/2018No. 17

- 3 0667

3 And even with stand ing, Louisiana insist s that Section 14:122 prohibits only unprotected speech, such as true threats or extortion.
T he district court held a hearing to sort through standing

. P laintiffs admitted that the DA had stated he ha d no intention of charging them at th at time. But plaintiffs maintained the DA could still prosecute Seals. Louisiana reiterated that the D A has not brought charges but has never disputed that Seals made threats, was arrested, and could be prosecuted under Section 14:122 un til fo ur years after the arrest, which is December 2019. 2 The district court granted plaintiffs’ motion, finding standing and declar

ing Section 14:122 overbroad as applying to constitutionally protected threats. T he court enjoined Louisiana from enforcing Se ction 14:122’s prohibition on “threats.” Louisiana , through its attorney general, appeals

. II. The core case

- or - controversy requirement of Article III establishes an

“ irreducible constitutional minimum of standing. ” 3 Lujan v. Defs. of Wildlife , 504 U.S. 555, 560

– 61 (1992). P laintiffs must demonstrate that (1) they have suffered an “injury in fact,” which is a “an invasion of a legally protected inter

est” that is “concrete and particularized” rather than “conjectural or hypothet

i cal,” (2) there is a “c ausal connection between the injury and the conduct com

plained o f” such that the injury is “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party

2 Specifically, the court asked, “So there is nothing to preclude the District Attorney from bringing these charges[?]” To which Louisiana’s atto rney replied, “True. That is

— there is that speculative.”

3 Plaintiffs suggest that, because Louisiana intervened only to defend the constitu

tion ality of Section 14:122, it cannot challenge their standing. But standing is jurisdictional and should be a ddressed “when there exists a significant question about it.” K.P. v. LeBlanc , 627 F.3d 115, 122 (5th Cir. 2010) (addressing standing sua sponte ). Case: 17-30667 Document: 00514592963 Page: 3 Date Filed: 08/09/2018No. 17

- 3 0667

4 not before the court,” and (3) the inj ury likely will “be redressed by a favorable decision.” Id. ( cleaned up ). Moreover, because plaintiffs seek injunctive relief, they must show that “there is a real and immediate threat of repeated injury.” City of L

. A

. v. Lyons , 461 U.S. 95, 102 (1983) (quoting O’Shea v. Littleton , 414 U.S. 488, 496 (1974))

. Past injury alone is insufficient; plaintiffs must establish a “real or immediate threat that [they] will be wronged again.” Id. at 111. Finally, “each element of Article III standing ‘must be s upported in the same way as any other matter on which the plaintiff bears the burden of proof, ’ ” with the same evidentiary requirements of that stage of litigation. Ben nett v. Spear , 520 U.S. 154, 16 7

– 6 8 (1997) (quoting Defs. of Wildlife , 504 U.S. at 561) . Thus, at the summary judgment stage, plaintiffs must “‘ set forth’ by affidavit or other evidence ‘specific facts’ to survive a motion for summary judg ment.” Id. (quoting F ED

. R. C IV

. P . 56(e)). 4 Plaintiffs repeatedly assert that the requirements of standing are relaxed in the First Amendment context. That is true, but only as relating to the various court

- imposed prudential requirements of standing. See Sec. of State of Md. v. Joseph H. Munson Co. , 467 U.S. 947, 954

– 5 8 (1984). T hey still must show that they satisfy the core Article III requirements of injury, causa

tion, and redressa bil ity. See id. ; Miss. State Dem. Party v. Barbour , 529 F.3d 538, 545

– 48 (5th Cir. 2008) (dismissing a First Amendment claim for lack of standing because there w as no threat of future injury). Seals was arrested in connection with making some form of threats to

4 Contrary to plaintiffs’ assertion in a supplemental letter , this case was decided on summary judgment. Plaintiffs have no authority to support their position that, even after being granted summary judgment, their standing is reviewed on the pleadings. Case: 17-30667 Document: 00514592963 Page: 4 Date Filed: 08/09/2018No. 17

- 3 0667

5 the police

— thus he appears to have violated Section 14:122. Louisiana con

cedes that Seals was so arrested and is legally subject to prosecution until Decem ber 2019. And both parties agree that “a credible threat of prosecuti on” is sufficient for standing. 5 P laintiffs “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” 6 Louisiana contends, however, that there is no threat of future injury b ecause

— as plaintiffs admit

— the D

. A

. has not charged Seals and has expressly disavowed bringing such charges. 7 Thus, the state urges there is no threat of future prosecution. 8
W hether the government disavows pro secution is a factor in finding a credible threat of prosecution. 9 Yet that is only one factor among many

— for example, in Humanitarian Law Project , 561 U.S. at 15

– 16 , the Court found

5 Holder v. Humanitarian Law Project , 561 U.S. 1, 15 (2010) (quoting Babbitt v. United Farm Workers Nat’l Union , 442 U.S. 289, 298 (1979)).

6 Id. (quoting United Farm Workers , 442 U.S. at 298) ; see also MedImmune, Inc. v. Gene n tech, Inc. , 549 U.S. 118, 128

– 29 (2007); Joseph H. Munson Co. , 467 U.S. at 956

– 57

. 7 A ccording to the complain t , Seals received a no lle prosequi

— from which plaintiffs urged the court to infer a bona fide termination as required for their malicious prosecution claim. That averment is of little significance, however, because a nolle prosequi is not a bar to subsequent prosecution. See L A

. C ODE

. C RIM

. P . art. 693.

8 Louisiana proffers that the Tenth Circuit has already decided this question. It has not. In both cases cited by Louisiana, the Tenth Circuit was faced with a plaintiff who was arrested and charged but whose charges were eit her formally dismissed or dropped. See Ward v. Utah , 321 F.3d 1263, 1265

– 66, 1267 n.5 (10th Cir. 2003) (dealing with a plaintiff whose “charges were dropped” and had not alleged “facts that would subject him to prose cu tion under the statute in the future”); Phelps v. Hamilton , 122 F.3d 1309, 1315

− 16 & n.5 (10th Cir. 1997) (dealing with plaintiffs whose charges were dismissed by jury acquittals). Although the Tenth Circuit held that both sets of plaintiffs lacked standi ng for injunctive relief based on prior arrests, it is unclear whether th at court would reach the same result in the face of an informal promise not to prosecute, as here.

9 See, e.g. , Humanitarian Law Project , 561 U.S. at 16 (“The Government has not arg ued to this Court that plaintiffs will not be prosecuted if they do what they say they wish to do.”); United Farm Workers , 442 U.S. at 302 (“[T]he State has not disavowed any intention of invoking the criminal penalty provision against unions that commit u nfair labor practices. Appellees are thus not without some reason in fearing prosecution [

. ] ”). Case: 17-30667 Document: 00514592963 Page: 5 Date Filed: 08/09/2018No. 17

- 3 0667

6 standing because there was a history of enforcement , and the government would not disavow prosecution. 10 And i n United Farm Workers , 442 U.S. at 302, after asking whether the parties were “sufficiently adverse , ” the Court found standing because, even though the plaintiffs had not yet violated the stat ute and the statute had never been applied, the govern ment would not dis

avow prosecution if plaintiffs engaged in their intended course of action. Id. Significantly, i n neither case had a plaintiff been arrested in connection with violating the statute. After all, “we [do] n ot require . . . that the plaintiff bet the farm, so to speak.” MedImmune , 549 U.S. at 129.
Seals’ s position mirrors that of the plaintiffs in United Farm Workers

. He already bet the farm. And when he violated Section 14:122, he was arrested. Louisi ana has disavowed prosecution but concedes that Seals actu

ally violated the statute and is legally subject to prosecution. 11 More over, Loui

siana has introduced evidence of other enforcement actions that are currently being pursued. Viewed alongside a r eview of Louisiana caselaw, that evidence shows that Section 14:122 is not a mere paper tiger but has a real history of enforcement

. Because the scales are at least as balanced as in United Farm Workers , Seals, too, has standing to challenge Section 14:12 2

. Th is conclusion reflects the fundamental purpose of standing: “to ensure

. . . the federal courts are devoted to those disputes in which the parties have a concrete stake.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 191 (2000). Seals plainly has a concrete stake in this liti ga tion because the DA can change his mind and prosecute him. P laintiffs “should

10 Specifically, the Court relied on the fact that the government had “charged about 150 persons with violating” the statute at issue. Humanitarian Law Projec t , 561 U.S. at 16

. 11 C f. PeTA, People for the Ethical Treatment of Animals v. Rasmussen , 298 F.3d 1198, 1203 (10th Cir. 2002) (finding a lack of standing where the government determined that the intended course of conduct did not actually violate the challenged law); Faustin v. City & Cty. of Denver , 26 8 F.3d 942, 948 (10th Cir. 2001) (same)

. Case: 17-30667 Document: 00514592963 Page: 6 Date Filed: 08/09/2018No. 17

- 3 0667

7 not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” 12 We apply that principle here: Seals is not required to live under the specter of prosecution for violating a potentially unconstitu tional law with nothing more than a non

- committal promise as protection. 13

III. We turn to whether Section 14:122 violates the First Amendment. To show overbreadth, plaintiffs must establish that Section 14:122 encompasses a substantial number of unconstitutional applications “judged in relation to the statute’s plainly legitimate sweep.” 14 The “first step in overbreadth anal y sis is to construe the challenged statute .” Stevens , 559 U.S. at 474 (quot ing United States v. Williams , 553 U.S. 285, 293 (2008))

. Only after that can we de cid e whether its unconstitutional applications are substantial and render the law unconstitutional. Id.
A. The parties dispute the reach of Section 14:122. We start with the text.

12 Humanitarian Law Project , 561 U.S. at 15 (quoting United Farm Workers , 442 U.S. at 298 ) ; Planned Parenthood of Cent

. Mo. v. Danforth , 428 U.S. 52, 62 (1976) (quoting Doe v. Bolton , 410 U.S. 179, 188 (1973) ) ; Doe , 410 U.S. at 188; see also Susan B. Ant hony List v. Drie haus , 134 S. Ct. 2334, 2343 (2014); Cruz v. Abbott , 849 F.3d 594, 599 (5th Cir. 2017).

13 Plaintiffs raise another theory of standing: that their future speech is chilled by Section 14:122. Compare Ctr. for Individual Freedom v. Carmouche , 449 F.3d 655, 660

– 61 (5th Cir. 2006) (holding that the real chilling of intended speech, brought about by a real threat of future prosecution, is enough to establish Article III standing) , with Miss. State Dem. Party , 529 F.3d at 545

– 46 (dismiss ing for lack of standing at summary judgment because plaintiffs had not introduced any evidence of a “firm intention” to engage in pro

scribed speech or conduct). We need not opine on that theory because Seals faces a credible threat of future prosecution based on his past violation of Section 14:122 and his arrest. And because he has standing, we “need not pass upon the status of [Bergeron] in this suit, for the issues are sufficiently and adequately presented by [Seals], and nothing is gained or lost by the presence or absence of [Bergeron].” Doe , 410 U.S. at 189

. 14 United States v. Stevens , 559 U.S. 460, 473 (2010) (quoting Wash. State Grange v. Wash. State Repub. Party , 552 U.S. 442, 449 n.6 (2008)). Contrary to plaintiffs’ assertion, they have the burden of showing overbreadth. Virginia v. Hicks , 539 U.S. 113, 122 (2003). Case: 17-30667 Document: 00514592963 Page: 7 Date Filed: 08/09/2018No. 17

- 3 0667

8 The statute criminalizes “public intimidation,” defined as “the use of vio le nce, force, or threats upon [a specified list of persons, including any public officer or public employee] with the intent to influence his conduct in relation to his posi

tion, employment, or duty.” ( E mphasis added

. ) On its face, the statute is extremel y broad. The definition of “threat” generally encompasses any “state

ment of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done.” 15 That defin i tion eas

ily covers threats to cal l your lawyer if the police unlawfully search your house or to complain to a DMV manager if your paperwork is processed wrongly.
The state , however, contends that Section 14:122 requires a “corrupt intent,” which it defines as the intent to obtain someth ing the speaker is not entitled to as a matter of right. According to Louisiana, that gloss

— although found nowhere in the text

— has been applied by its state courts. And as Louisiana notes, a gloss placed on a state statute by that state’s courts is “conc lusive on us.” 16 We accept the gloss proposed by Louisiana. Although not explicit, Louisi

ana caselaw strongly suggests that Section 14:122 requires a corrupt intent , as defined by Louisiana. In State v. Daniels , 109 So. 2d 896, 906 (La. 1958) , overrul ed in part on other grounds by State v. Gatlin , 129 So. 2d 4 (La. 1961) , the c ourt stated that “the crime of ‘Public Intimidation’ requires the same pur

pose as that of ‘Public Bribery,’ the only difference being in the method

15 Threat , O XFORD D ICTIONAR IES (Online ed.), htt ps://en.oxforddictionaries.com/ definition/threat; see also Threat , M ERRIAM

- W EBSTER (Online ed.), https://www.merriam

- webster.com/dictionary/threat ( similar ); cf. Threat , B LACK ’ S L AW D ICTIONARY 1708 (10 th ed. 2014) ( similar). Accord Gooding v. Wilson , 405 U.S. 518, 525 (1972) (using dictionary definitions to interpret a state statute).

16 Terminiello v. City of Chicago , 337 U.S. 1, 5 (1949); see also Stevens , 559 U.S. at 474 (“Because [18 U.S.C.] § 48 is a federal statute, there is no need to defer to a state court’s authority to interpret its own law.”). Case: 17-30667 Document: 00514592963 Page: 8 Date Filed: 08/09/2018No. 17

- 3 0667

9 employed .” 17 Moreover , the reporter’s comments pro vide that “public intimidation . . . includes the same parties and requires the same purpose as” public bribery

. L A

. R.S. § 14:122, cmt. Then, in State v. Smith , 212 So. 2d 410, 411

− 12 (La. 1968), the c ourt was faced with a vagueness challenge to Louisiana’s bribery statute. The court found the law constitutional, reasoning in part that “the gist of [bribery] is that it tends to corrupt.” Id. at 413. “ B ribery must be committed with a corrupt intent, that is, the intent is corrupt when it is to influence official action to obtain a result which the party would not be entitled to as a matter of right.” Id. at 415. (emphasis, citation , and internal quotations omitted). Thus, Louisiana caselaw can easily be read to say that Section 14:122 requires the same corrupt intent that Louisiana’s courts have read into its public

- bribery statute. And nothing in our review of Louisiana caselaw is inconsistent with that requirement. 18 Accordingly, we a ssume , but only for purposes of th is appeal , that Section 14:122 requires a corrupt intent, defined as the intent to obtain something that the speaker is not entitled to as a matter of right.
Yet we can narrow Section 14:122 no further. According to the state, we

17 See also State v. D a u zat , 284 So. 2d 592, 593

– 94 (La. 1973) (indicating that public intimidation and public bribery are similar statutes); State v. Robertson , 128 So. 2d 646, 649 (La. 1961) (reading a statute in contrast to public intimidation and public bribery).

18 See, e.g. , State v. Godfrey , 25 So. 3d 756, 758, 761 (La. 2009) (affirming conviction where defendant told a DA he would “pop

- pop” him to influence the DA that the charges should be dismissed as time

- barred); O’Brien v. Town of Glenmora , 997 So. 2d 753, 758 (La. App. 3d Ci r. 2008) (sta ting that a person cursing at police officer s , threatening their jobs, and trying to grab their ticket book during a traffic stop could have intended to avoid arrest); State v. Burgess , 876 So. 2d 263, 273

– 74 (La. App. 3d Cir. 2004) ( holding t hat defendant’s state ments were unlikely made for the purpose of resisting arrest ); State v. Jones , 772 So. 2d 788, 792 (La. App. 5th Cir. 2000) (affirming conviction where defendant made threats before arrest and thus likely intended to influence officer against arresting him) ; State v. Meyers , 643 So. 2d 1275, 1276

– 79 (La. App. 5th Cir. 1994) (affirming conviction where defendant made violent threats to obtain a photograph to which he was not entitled ). Case: 17-30667 Document: 00514592963 Page: 9 Date Filed: 08/09/2018No. 17

- 3 0667

10 should construe the sta tute to apply only to true threats , i.e. “a serious expression of an intent to commit an act of unlawful violence” toward specific
pe r sons
. 19 There are several reasons why we cannot do so. First, the definition of “threat” is broader than true threats: any “statement of an intention to inflict pain, injury, damage , or other hostile action on someone in retribution for some

thing done or not d one.” 20 Second, the reporter’s comments to Section 14:122 provide that the statute “should include threats of harm or injury to the char

acter of the person threatened as well as actual or threatened physical vio

lence.” L A

. R. S

. § 14:122, cmt. Thus, the section is not “readily susceptible” to such a limiting construction. 21 Finally, Louisiana’s reliance on its caselaw proves to be a double

- edged sword. As plaintiffs note, the Louisiana Court of Appeals has upheld the con

vic tion of a defendant who violated Section 14:122 by threatening “ to sue ” an offi cer and “ get [his] job ” if the officer arrested him. See State v. Mouton , 129 So. 3d 49, 54, 59 (La. App. 3d Cir. 2013). Plainly , such a threat suggests no violence

— indeed, t he threat appears to be a plan to take perfectly lawful action s . Accordingly, we cannot construe Section 14:122 to apply only to true threats of violence.
It follows that , properly understood , Section 14:122 applies to any threat meant to influence a public official or employee, in the course of his duties, to obtain something the speaker is not entitled to as a matter of right. But so construed, the statute reaches both true threats

— such as “ don’t arr est me or

19 See Virginia v. Black , 538 U.S. 343, 359 (2003).

20 Threat , O XFORD D ICTIONARIES (Online ed.), htt ps://en.oxforddictionaries.com/ definition/threat (emphase s added).

21 City of El Cenizo v. Texas , 890 F.3d 164, 182 (5th Cir. 2018) (permitting federal courts to impose limiting c onstructions on state statutes that are “readily susceptible” to the construction , in order to save them) (citing Voting for Am., Inc. v. Steen , 7 32 F.3d 382, 396 (5th Cir. 2013))

. Case: 17-30667 Document: 00514592963 Page: 10 Date Filed: 08/09/2018No. 17

- 3 0667

11 I’ll hit you”

— and threats to take wholly lawful action s

— such as “ don’t arrest me or I’ll sue you .” In both those examples, the speaker may be legally subject to arrest and is trying to influence a police officer in the course of his duties. Thu s, Sec tion 14:122 makes both threats a criminal act.

B. P laintiffs insist that Section 14:122 , so construed, is actually a content

based restriction o n speech , so we should immediately apply strict scrutiny. See Reed v. Town of Gilbert , 135 S. Ct. 2218, 2226 (2015). Yet , in so arguing, plain tiffs muddy the sometimes treacherous First Amendment waters; we pro ceed to provide some clarity.
It is true that , by criminalizing “threats,” the statute regulates con tent. And, as Louisiana rightly contends, Section 14:122 regulates unprotected con

tent , such as true threats

. See Black , 538 U.S. at 359. But even laws that target only unprotected speech are still “content

- based.” U npro tected speech is still speech; t rue threats and the like may be “quite exp ressive” and are not “entirely invisible to the Constitution.” R.A.V. v. City of St. Paul , 505 U.S. 377, 383

– 85 (1992). It is not that true threats are devoid of content; it is that they may “be regulated because

. . . their consti tutionally proscribabl e content ” is not

“ essential ” to the “exposition of ideas.” Id. (latter quoting Chaplinsky v. New Hampshire , 315 U.S. 568, 572 (1942)) . Thus, a state may constitutionally regulate and proscribe unprotected speech, such as true threats, without trig

ger i ng a strict

- scrutiny review

— even though such a regulation is based on content

. That is not to say that a state has carte blanche when dealing with unprotected speech

. It may not, for example, regulate only certain kinds of unprotected content based on a criteri on that involves protected content

— e.g., a law prohibiting only true threats involving particular political ideas

. See id. Case: 17-30667 Document: 00514592963 Page: 11 Date Filed: 08/09/2018No. 17

- 3 0667

12 at 385

– 86

. 22 Nor may the government proscribe unprotected content through a regulation that simultaneously encompasses a sub stantial amount of pro

tected content, “judged in relation” to the unprotected content. See Stevens , 559 U.S. at 472

– 73; Black , 538 U.S. at 364

– 67. Either sort of regulation is a kind of content

- based regulation that is constitutionally suspect. The for mer is subject to “strict scrutiny”; the latter, “overbreadth.”
Section 14:122 does not implicate the former limitation . It regulates threats, pure and simple. 23 And by targeting unprotected speech, such as true

22 Thus, in R.A.V. , 505 U.S. at 391

– 95, the Court applied strict scrutiny to a city ordi

nance that only prohibited true threats based on race, color, creed, religion, or sex. As the Court explained, the ordin ance disfavored only fighting words relating to cer tain topics, and that was content discrimination. Id

. Similar to R.A .V. is Reed

. There , 135 S. Ct. at 2227, a signage ordinance was content

based because it defined particular categories of signs by reference to whether the sign communicated a particular message

— for example, whether the sign discussed a book by John Locke or favored voting for John Locke. As in R.A.V. , the government was regulating a “non

essential” aspect of speech, but in a way that referenced the “essential” content of the speech. Compare id. with R.A.V. , 505 U.S. at 385

– 86 (“The proposition that a pa rticular instance of speech can be proscribable on the basis of one feature ( e.g., obscenity) but not on the basis of another ( e.g., opposition to the city government) is commonplace and has found application in many contexts. We have long held, for examp le, that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses

— so that burn ing a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in viola tion of an ordinance against dishonoring the flag is not.

. . . The govern

ment may not regulate [for example, a noisy truck] based on hostility

— or favoritism

— toward s the underlying message expressed.”).

23 The fact that the law prohibits only threats against public officials or e mployees is of no consequence. Content

- based reg u la tions are permissible “[w]hen the basis for the con

tent discrimination consists entirely of the very reason the entire clas s of speech at issue is pro scrib able.” Black , 538 U.S. at 361

– 62 (quoting R.A.V. , 505 U.S. at 388). Thus, Louisiana may regulate only unprotected speech, such as true threats, directed against public officials. Such a regulation

— picking out only certa in kinds of true threats

— does not involve drawing lines based on protected speech and is based on the same rationale for denying true threats any First Amendment protection. Cf. R.A.V. , 505 U.S. at 388 (“[T]he Federal Government can criminalize only those threats of violence that are directed against the President, see 18 U.S.C. § 871

— since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President.” (citing Watts v. United States , 394 U.S. 705, 707 (1969))). But Section 14:122 does not single out certain kinds of unprotected spee ch, raising an R.A.V. or a Case: 17-30667 Document: 00514592963 Page: 12 Date Filed: 08/09/2018No. 17

- 3 0667

13 threats or extortion, Section 14:122 easil y has at least some applications that are constitutional. Cf. Stevens , 559 U.S. at 472

– 73; R.A.V. , 505 U.S. at 384. But again, that does not automatically ensure Section 14:122’s survival. As noted above , the s ection also targets threats to take wholly lawful actions

. Thus we return to our starting point : whether Section 14:122 is unconsti tu

tionally overbroad. See Black , 538 U.S. at 363

– 66.
C. E valuat ing an overbreadth challenge requires exploring a statute’s con

sti tutional and unconstitutional appli cations. According to Louisiana, Sec

tion 14:122 has no unconstitutional applications because it proscribes only unprotected speech. To be sure, it covers a large swath of unprotected speech, including true threats 24 and core criminal speech , such as exto rtion 25 and threats to engage in truly defamatory speech made with actual malice. 26 But the statute plainly reaches further. As explained above, Section 14:122 in

cludes threats to sue an arresting officer or even to run against an incumbent unless he vote s for a favored bill. Cf. Mouton , 129 So. 3d at 54, 59. Such threats are constitutionally protected. The decision in NAACP v. Claiborne Hardware Co. , 458 U.S. 886 (1982) , is instructive. There, a group of black citizens demanded that public officials desegregate public schools and hire black policeman lest the black community engage in boycotts of private

Black concern. The problem, as described above, is instead that Section 14:122 sweeps more broadly than unprotected speech.

24 See Black , 538 U.S. at 359

– 60.

25 Core criminal speech such as extortion, bribery, or perjury has no First Amendment protection. See United States v. Quinn , 514 F.2d 1250, 1268 (5th Cir. 1975) (extortion); United States v. Irving , 509 F.2d 1325, 1331 n.5 (5th Cir. 1975) (extortion, blackmail, and assault); United States v. Varani , 435 F.2d 758, 76 2 (6th Cir. 1970) (perjury, extortion, and conspiracy); see also United States v. Sayer , 748 F.3d 425, 433

– 34 (1st Cir. 2014) (noting that

“ [ s ] peech integral to criminal conduct” is unprotected speech).

26 See New York Times Co. v. Sullivan , 376 U.S. 254, 2 67

– 82 (1964). Case: 17-30667 Document: 00514592963 Page: 13 Date Filed: 08/09/2018No. 17

- 3 0667

14 businesses ; when their demands were not met, the boycott s began. I d. at 899

– 900. Such speech was constitutionally protected even though obviously threat

ening. Id. at 911

– 13. Moreover, a speech during the boycott contained strong language referencing breaking necks and committing other acts of violence;

nev er theless , the Court found the speech protected. Id. at 927

– 29. Yet on its face, Section 14:122 would criminalize all of that speech.
Louisiana reminds us that a statu t e may be struck as overbroad only if its overbreadth is “ substantial , not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep.” Williams , 553 U.S. at 292. And the state notes that overbreadth is “strong medicine that is not to be casually employed.” Id. at 293 (citation and internal quotations omitted). We ag ree, but here the statute sweeps so broadly , encompassing any number of constitutionally pro tected threats , such as to boycott communities, to run against incumbents, and to sue police officers . Hence, it is overbroad. A survey of analogous caselaw sup ports that conclusion . In City of Houston v. Hill , 482 U.S. 451, 455 (1987) , the Court was faced with a n ordin

ance that criminalized assaulting, striking, or in any manner opposing, molest

ing, abusing, or interrupting “any policeman in th e execution of his duty.” The ordinance prohibited any speech that interrupts police officers, thus extending well beyond “core criminal conduct” or true threats. Id. at 460

– 63. Nor was the ordinance “narrowly tailored to prohibit only disorderly conduct or fighting words.” Id. at 465

. Thus, the Court struck i t as overbroad. Id. at 467. Similarly, in Wilson , 405 U.S. at 519, 528, the Court struck a Georgia statute t hat prohibited any “opprobrious words or abusive language, tending to cause a breach of the peace.” Georgia courts had not limited the statute to fighting words or speech that would immediately cause violence; thus the law swept in protected speech and wa s overbroad. Id. at 524

– 25. Finally, in Lewis Case: 17-30667 Document: 00514592963 Page: 14 Date Filed: 08/09/2018No. 17

- 3 0667

15 v. City of New Orleans , 415 U.S. 130, 132 (1974), the Court was faced with a Louisiana statute that penalized cursing or using “obscene or opprobri ous language toward or with reference to any member of the c ity police while in the actual performance of his duty.” Again, the Court found overbreadth because the statute extended beyond true threats or speech that would imme

diately breach the peace. Id. at 133. Section 14:122 is at least as overbroad as th e laws that were found to be unconstitutional in those cases. It covers the kinds of constitutionally pro

tected speech identified in Claiborne Hardware , 458 U.S. at 889

— i.e., threats to boycott unless policies are imple mented and minorities are hired as p olice

— and much more. Section 14:122 could encompass an innocuous threat to com

plain to a DMV manager for slow service or a serious threat to organize law

suits and demonstrations unless the police lower their weapons

. And each kind of threat is constitu tionally protected. “ The freedom of individuals verbally t o oppose or challenge police action with out thereby risking arrest is one of the prin cipal characteristics by which we distinguish a free nation from a police state. ” Hill , 482 U.S. at 462

– 63 . Section 14:122 undermines that freedom and thus is unconstitutional.

D. Loui siana offers more replies but none with merit

. We examine each.

1. Louisiana claims that plaintiffs have failed to prove there have been unconstitutional applications of Sectio n 14:122 and that plaintiffs rely only on hypotheticals and pure speculation. But in the first place, plaintiffs cite Mouton , 129 So. 3d at 54, 59, as evidence that the statute has been

— and can be

— applied to a broad range of speech that has constitutional protection, Case: 17-30667 Document: 00514592963 Page: 15 Date Filed: 08/09/2018No. 17

- 3 0667

16 including threats to sue police officers. And in the second place, Louisiana demands too much. The Court has declared statutes overbroad eve n where the government has never prosecuted

— and promises it will never prosecute

— protected spee ch. S ee Stevens , 559 U.S. at 480. T he First Amendment “does not leave us at the mercy of nobles s e oblige .” Id. The same appertains more so here, given that Louisiana has already tried and convicted someone for threatening to sue a police officer and get his job

. See Mouton , 129 So. 3d at 54, 59

.
2. The state contends that Section 14:122 is similar to statute s upheld in CISPES (Committee in Solidarity with the People of El Salvador) v. F.B.I. , 770 F.2d 468 (5th Cir. 1985) , and United States v. Hicks , 980 F.2d 963 (5th Cir. 1992). Both are easily distinguishable.
In CISPES , 770 F.2d at 470 & n.2, 475, we upheld 18 U.S.C. § 112, which in part criminalizes intimidating, coercing, threatening, or harassing a foreign official in the performance of his duties. To be sure, that statute on its face “prohibits such constitutionally protected activities such as picketing and dem

on strat ing.” Id. at 473. But , critically, we construed Section 112 to avoid such constitutional problems, basing our reading on the statu te’s safe harbor

— “nothing contained in this section shall be construed or applied so as to abridge the exercise of rights guaranteed under the First Amendment”

— along with the legislative history and the government’s litigating position. Id. at 473

– 74. Es sentially, we interpreted it to apply only to unprotected speech. That read

ing makes CISPES entirely different from the present case. Unlike in CISPES , we cannot merely read all constitutional applications out of Case: 17-30667 Document: 00514592963 Page: 16 Date Filed: 08/09/2018No. 17

- 3 0667

17 Section 14:122. 27 Both its plain text and its administration by Louisiana ’s courts reveal its applica tion to protected speech

. Neither is Hicks availing. There, defendants were convicted under 49 U.S.C. § 1472(j) , 28 which provides criminal penalties against anyone who , while on an aircraft, intimidates members of a flight crew so as to interfere with its duties. We held it was not overbroad , but for reasons that cannot save Section 14:122

. See Hicks , 980 F.2d at 969

– 70

. I n the first place, the Hicks defendants had pointed to no potential applications of Section 1472 that were distinct from their own situation. Id. And as we explained, overbreadth chal

lenges are not permitted where a party raises only situations that are “essen

tially coterminous” with their own conduct. Id. Here, conv ersely, plain tiffs raise numerous hypotheticals that are not coterminous with the conduct for which they were arrested: threatening to report officials for dereliction of duty, threatening to complain to supervisors at the DMV

— the list goes on. Moreover, in Hicks , id. at 970, there was only a low risk that the statute would transgress constitutional limitations. As we recognized, Section 1472 crimin alized intimidation only on airplanes

— a “special context of . . . pres sur ized vessels routinely carrying hundreds of passengers and traveling at speeds of up to 600 miles per hour and 4 0,000 feet above the ground .” Id. at 971

– 72. Accordingly, even assuming th e law was content

- based or reached pro tected speech , it withstood strict scrutiny. Id. ; see also Petras , 879 F.3d at 167.

27 See Terminiello , 337 U.S. at 5 (1949) ( reasoning that state glosses on state statutes are “conclusive on us”); Stevens , 559 U.S. at 481 (explaining that although courts may con

strue statutes to avoid constitutional doubts, they may not “rewrite a

. . . law to conform it to
con stitutional requirements” (omission in original) (quoting Reno v. ACLU , 521 U.S. 844, 884

– 85 (1997)) ); see also Mouton , 129 So. 3d at 54, 59 (applying Section 14:122 to a threat to sue a police officer and get his job).

28 Section 1472 has been succeeded by 49 U.S.C. § 46504, which is materially similar for constitutional purposes. See United States v. Petras , 879 F.3d 155, 160, 166

– 68 (5th Cir. 2018). Case: 17-30667 Document: 00514592963 Page: 17 Date Filed: 08/09/2018No. 17

- 3 0667

18 The same cannot be said for Section 14:122. The state has no interest in preventing its citizens from threatening boycotts unless they are heard, rallies until a politician resigns, or lawsuits if they are arrested. Cf

. Claiborne Hard

ware , 458 U.S. at 886, 889, 911

– 13 . Although, as Louisiana maintains, the state does have an interest in protecting its officers, 29 it cannot do so through a law that simultaneously tramples t he core First Amendment freedom “ver

bally to oppose or challenge [state] action without thereby risking arrest.” Hill , 482 U.S. at 462

– 63. Because Section 14:122 does precisely that, it is un con stitutionally overbroad.

3. Louisiana maintains that Section 14:122 is a time, place, and man ner rest riction. That assertion was not made before the district court, so it is waived. See Mart co Ltd. P’ship v. Wellons, Inc. , 588 F.3d 864, 877 (5th Cir. 2009). E ven if not waived , the theory is without merit.
The state relies on Hicks , 980 F.2d at 971, w hich held that the airpla ne intimidation statute (Section 1472) was a time, place, and manner restriction. But as we noted in Petras , 879 F.3d at 166 n.19, “[i] t is a close call whether Hicks ’s” time, place, and man ner conclusion is still valid given cas es like Reed

. The only reason why Section 1472 could still be considered a time, place, and manner restriction is because it regulated any intimidation

— defined as word s and conduct that place one in fear

— that interferes with a flight crew’s duties. Hicks , 980 F.2d at 965 , 971

– 72 . As we explained in Petras , 879 F.3d at 166 n.19, that may be a time, place, and manner restriction because any

com bina tion of words and conduct may be intimidating on an airplane

— the word “intim idation , ” so defined, may not h ave any content insofar as a

29 Cf. CISPES , 770 F.2d at 474 (recognizing the “und eniably important governmental interest of protecting foreign officials and visitors”)

. Case: 17-30667 Document: 00514592963 Page: 18 Date Filed: 08/09/2018No. 17

- 3 0667

19 mountain (or someone shouting gibberish) might be “intim i dating” in the sense that it causes fear. But that analysis would not apply to laws that target unprotected speech, such as true threats. As explained above, the fact that a statute regulates true threats does not mean it is wholly content

- neutral, but only that it discrimin ates based on con stitutionally un protected content. See R.A.V. , 505 U.S. at 383

– 85; Black , 538 U.S. at 361

– 62. Therefore , it would be improper to char ac terize such a statute as a time, place, and manner restriction. A fortiori , Section 14:122 is not a time, p lace, and manner restriction. And n ot only does it encompass unprotected content, it reaches far beyond those constitutional limitati ons to target threats to com plain to a school princi

pal if one gets a bad grade, threats to run against an incumbent unless he vote s your way on a bill, or threats to call the media if the police point a gun at you. Those kinds of threats are part of the core First Amend ment rights “by which we distinguish [our] free nation from a police state. ” Hill , 482 U.S. at 462

– 63. Thus, insofar as it criminalizes “threats,” Section 14:122 is unconstitutionally overbroad. The judgment is AFFIRMED. Case: 17-30667 Document: 00514592963 Page: 19 Date Filed: 08/09/2018