Texas Constitution:Article I, Section 11-d

Adopted February 15, 1876:

Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the Court, as in other cases.

Editor Comments

As reflected by the decisions referenced below, the shift from Democratic to Republican control of the Texas Supreme Court in the 1990s resulted in a different approach to cases brought under this section.

—Attorney Steve Smith

Recent Decisions

• Lilith Fund for Reprod. Equity v. Dickson, 662 S.W.3d 355, 357-58 (Tex. 2023) (footnote omitted) ("We hold that the challenged statements are protected opinion about abortion law made in pursuit of changing that law, placing them at the heart of protected speech under the United States and Texas Constitutions. Such opinions are constitutionally protected even when the speaker applies them to specific advocacy groups . . . . In our state and nation, an advocate is free 'to speak, write or publish his opinions on any subject,' perhaps most especially on controversial subjects like legalized abortion.")

• Kinney v. Barnes, 443 S.W.3d 87, 90 (Tex. 2014) (footnotes omitted) ("Enshrined in Texas law since 1836, this fundamental right recognizes the 'transcendent importance of such freedom to the search for truth, the maintenance of democratic institutions, and the happiness of individual men.' Tex. Const. art. I, § 8 interp. commentary (West 2007). Commensurate with the respect Texas affords this right is its skepticism toward restraining speech. While abuse of the right to speak subjects a speaker to proper penalties, we have long held that 'pre-speech sanctions' are presumptively unconstitutional.")

• AEP Tex. Com. & Indus. Retail, Ltd. P'ship v. Public Util. Comm'n of Tex., 436 S.W.3d 890, 923 (Tex.App.–Austin 2014, no pet.) (footnote omitted) ("In the decades since it decided Davenport, the Texas Supreme Court has, to say the least, greatly refined its notion that the Texas free-speech provision is 'broader' or more protective of speech than its federal counterpart. . . . Consequently, whether 'Article I, Section 8 [is] more protective of speech . . . than the First Amendment' in a particular application or context 'must be because of the text, history, or purpose of the provision, not just simply because.'")

• Operation Rescue-Nat'l v. Planned Parenthood of Houston and Southeast Texas, 975 S.W.2d 546, 559 (Tex. 1998) (footnote omitted) ("To define the protections of Article I, Section 8 simply as one notch above First Amendment protections is to deny state constitutional guarantees any principled moorings whatever. We reject this approach. The text, history, and purposes of Article I, Section 8 have been thoroughly examined by this Court. We know of nothing to suggest that injunctions restricting speech should be judged by a different standard under the state constitution than the First Amendment.")

Historic Decisions

• Davenport v. Garcia, 834 S.W.2d 4, 11-12 (Tex. 1992) ("Having found that the trial court's gag orders violate article I, section 8 of the Texas Constitution, this court need not consider whether the United States Constitution has also been violated. . . . We decline to limit the liberties of Texans to those found in the Federal Constitution when this court is responsible for the preservation of Texas' own fundamental charter. When a state court interprets the constitution of its state merely as a restatement of the Federal Constitution, it both insults the dignity of the state charter and denies citizens the fullest protection of their rights.")

• Ex parte Tucker, 220 S.W. 75, 76 (Tex. 1920) ("The theory of the provision is that no man or set of men are to be found, so infallible in mind and character as to be clothed with an absolute authority of determining what other men may think, speak, write or publish; that freedom of speech is essential to the nature of a free state; that the ills suffered from its abuse are less than would be imposed by its suppression; and, therefore, that every person shall be left at liberty to speak his mind on all subjects, and for the abuse of the privilege be responsible in civil damages and subject to the penalties of the criminal law.")

• McArthur v. State, 57 S.W. 847, 849 (Tex.Crim.App. 1900) ("We do not understand this article of our Code to contravene the provisions of our constitution on this subject (see Bill of Rights, § 8) . . . . This provision makes the jurors simply the judges of the law under the direction of the court, as in other cases. In other cases the jury take the law from the court, and are required to be governed thereby; and we understand the constitution and the statute to mean the same thing, and it was never intended that the jury, with reference to libel, should construe the law for themselves and without direction from the court.")

• A. H. Belo & Co. v. Wren, 63 Tex. 686, 722 (1884) ("The publisher of defamatory matter is exempted from responsibility in such cases, because the demands of public policy for the publication outweigh all considerations requiring the protection of private reputation in the particular case. The public are not regarded as having such an interest in proceedings embodying defamatory matter as will outweigh the necessity of protecting the character of individuals, unless they are proceedings of a legislative or judicial character. Cooley's Const. Law, 568; Townshend on Libel, 411; Sanford v. Bennett, 24 N.Y. 20.")

Library Resources

• Vernon's Annotated Constitution of the State of Texas (this multi-volume and up-to-date resource is available at all law libraries and many municipal libraries)

• The Texas State Constitution: A Reference Guide (this one-volume resource is available at most law libraries and some municipal libraries)

• The Constitution of the State of Texas: An Annotated and Comparative Analysis (this two-volume resource is available at most law libraries and some municipal libraries)

Online Resources

• Constitution of the State of Texas (1876) (this resource is published and maintained by the University of Texas School of Law)

• Amendments to the Texas Constitution Since 1876 (this resource is published and regularly updated by the Legislative Council)

• Reports Analyzing Proposed Amendments (this resource is published and regularly updated by the Legislative Reference Library)