Article I, Section 8 of the Texas Constitution

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 cited below, the shift from Democratic to Republican control of the Texas Supreme Court in the 1990s resulted in a fundamentally different approach to cases brought under this section.

Steve Smith

Recent Decisions

  • 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.")
  • 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.")

Library Resources

Online Resources