Full opinion text
OPINION DOGGETT, Justice. We consider the scope of our state constitutional guarantee of freedom of expression. Keith Tucci, Randall Terry, Joseph Slovenic, Patrick Mahoney, Wendy Wright, Flip Benham, and Robert Jewitt were convicted of civil contempt for public protests in which each of them disregarded a provision of a temporary restraining order. As relators, they bring this original habeas corpus proceeding asserting that they have been confined for expression which is protected under article I, section 8 of the Texas Constitution. I. The importance attached to freedom of expression in our state’s jurisprudence is reflected in the longstanding rule that one imprisoned for disregarding a court order restraining speech may challenge the underlying restraint as void through a habeas proceeding such as this. Texas courts have repeatedly granted habeas relief to release those confined for disregarding an unconstitutional restriction on varying types of expression. See Ex parte Henry, 147 Tex. 315, 215 S.W.2d 588 (1948) (peaceful picketing); Ex parte Tucker, 110 Tex. 335, 220 S.W. 75 (1920) (‘‘vilifying, abusing or using opprobrious epithets”); Ex parte McCormick, 129 Tex.Crim. 457, 88 S.W.2d 104 (1935) (gag order); Ex parte Foster, 44 Tex.Crim. 423, 71 S.W. 593 (1903) (gag order). As we concluded in Ex Parte Henry: One cannot be punished for contempt for violating an order which a court has no authority to make. 215 S.W.2d at 597. Underlying our state law is the principle that speech delayed often translates into speech denied. The Texas approach represents the converse of the federal collateral bar rule, which was relied upon in Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967), to bar the release of Dr. Martin Luther King, Jr. and others from the Birmingham jail for disregarding unconstitutional restrictions upon their civil rights marches. Citizens must not “be muffled pending outcome of ... proceedings” to dissolve an injunction, since [t]he ability to exercise protected protest at a time when such exercise would be effective must be as protected as the beliefs themselves.... It is a flagrant denial of constitutional guarantees to balance away this principle in the name of “respect for judicial process.” To preach “respect” in this context is to deny the right to speak at all. 388 U.S. at 349, 87 S.Ct. at 1847 (Brennan, J., dissenting). Nor is Texas alone in recognizing the unduly restrictive nature of a collateral bar rule. See, e.g., In re Berry, 68 Cal.2d 137, 65 Cal.Rptr. 273, 280, 436 P.2d 273, 280 (1968) (en banc); Wood v. Goodson, 253 Ark. 196, 485 S.W.2d 213, 217 (1972); State ex. rel. Superior Court v. Sperry, 79 Wash.2d 69, 483 P.2d 608, 611 cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 (1971); Phoenix Newspapers, Inc. v. Superior Court, 101 Ariz. 257, 418 P.2d 594, 596 (1966). II. Fearful that former President George Bush would weaken the Republican Party’s opposition to a woman’s constitutional right to choose whether to have an abortion, Relators initiated “Operation G.O.P.” to express vehemently their anti-choice views during the 1992 Republican National Convention in Houston. To attract maximum attention, Relators scheduled their protests at local family planning clinics. Concerned that they and their clients would be caught up in the intra-Republican crossfire, these clinics, joined by others, obtained temporary restraining orders to protect clinic access. Nevertheless, Relators gave various speeches — one imploring President Bush to appoint additional anti-choice judges and others condemning abortions — within a judicially prohibited area of “one-hundred (100) feet” from “either side of or in front of any doorway entrance or exit, parking lot, parking lot entrance or exit, driveway, or driveway entrance or exit” of a clinic. Each Relator was fined $500 and committed to the Harris County jail for six months or for a lesser time if purged of contempt by paying the fine and announcing in open court a willingness to abide by the restraining orders. All seven sought habeas relief, asserting that the contempt judgment by which they were incarcerated was based upon a void, unconstitutional temporary restraining order. After the court of appeals denied relief, this court ordered Relators released upon bond. III. In support of the temporary restraining orders, it was asserted that clinic demonstrations posed an immediate and irreparable threat to the ability of women to seek counseling at the clinics and, if desired, to obtain abortion-related services without intimidation, threats of violence, harassment or physical obstruction. A woman’s right to terminate a pregnancy is constitutionally protected. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). We have found merit in the reasoning of this decision in recognizing our own independent right of privacy under the Texas Constitution in Texas State Employees Union v. Texas Dep’t of Mental Health and Mental Retardation, 746 S.W.2d 203, 205 (Tex.1987) (citing Roe); see also Diamond Shamrock Ref. and Mktg. Co. v. Mendez, 844 S.W.2d 198, 203 (Hightower, J., concurring) (emphasizing the imperative, nature of the right to privacy under the Texas Constitution); Amy Johnson, Abortion, Personhood, and Privacy in Texas, 68 Tex.L.Rev. 1521 (1990). Without unimpaired access to appropriate counseling and medical facilities, a woman’s constitutional guarantee of choice would be no choice at all. Additionally, the clinics and intervenor businesses claimed injury would result from trespasses, blocked access and the intimidation of patients, staff and customers. This court has recognized that “[c]on-stitutional protection of the rights of free speech and assembly does not license ... obstruction of public ways or of entrances to and exits from places of business.” Ex Parte Pierce, 342 S.W.2d at 427. Uncontroverted evidence offered in support of the temporary restraining orders established that the threat of injury posed by Operation G.O.P. to the women plaintiffs’ right of access to the clinics and to the ability of clinics and businesses to operate was both imminent and irreparable. IV. The trial court issued two temporary restraining orders containing a number of provisions clearly directed to protecting against the specific injuries alleged by the women, clinics and businesses. Access was assured by injunctive relief that barred: [tjrespassing on, physically invading, entering without consent, damaging, sitting in, blocking, impeding or obstructing access to, ingress into or egress from any part of the Planned Parenthood facility ..., including the entrances and exits, the parking lots ..., and any of the clinic’s or parking lots’ entrances and driveways. To ensure access to the facilities in question, the trial judge further enjoined “obstructing or interfering in any way with the entrance or exit of pedestrian or vehicle traffic to or from this one block of Berry Street.” Additionally, the temporary restraining orders contained four independent provisions to guard against intimidation and harassment that prohibited: Demonstrating within twenty-five (25) feet of any person seeking access to or leaving the clinic, its parking lots, or intervenors’ businesses or parking lots, or in any way impeding such person’s entrance to or exit from the clinic, parking lots or businesses; Physically abusing, grabbing, intimidating, harassing, touching, pushing, shoving, or crowding persons entering or leaving, working at, or using any services at Planned Parenthood’s above-referenced facility or at the intervenors’ businesses; Harassing, intimidating or physically abusing any doctor, health care professional, or other staff member, employee or volunteer who assists in the provision of services at the Planned Parenthood facility; and Making any sound or noise (whether by mechanical loudspeaker, sound amplification device or otherwise) that is so loud that it disturbs, injures, or endangers the health or safety of any patient or staff person of the ... facility. The contempt convictions were not, however, based on violations of these provisions drawn to protect against specific injuries. Rather, confinement of relators was premised solely on their having disregarded portions of the temporary restraining orders that barred: Demonstrating within one-hundred (100) feet from either side of or in front of any doorway entrance or exit, parking lot, parking lot entrance or exit, driveway, or driveway entrance or exit at [any of the] clinics[s] or parking lots. Relators thus do not attack any of the other provisions of the restraining orders but challenge only the one-hundred foot limitation as unconstitutional. V. In reviewing the validity of the particular one-hundred foot limitation in these orders, we must look first to our Texas Constitution. See Davenport v. Garcia, 834 S.W.2d 4, 12 (Tex.1992). With its broad command that “ ‘[e]very person shall be at liberty to speak ... opinions on any subject' article one, section eight ... provides greater rights of free expression than its federal equivalent.” Id. at 10. “[I]ts language demonstrates Texas’ strong and longstanding commitment to free speech.” Id. at 7. Relying upon this fundamental state guarantee, our courts have repeatedly rejected both legislative and judicial attempts to restrict expression. The earliest writings are those of our sister court, the Texas Court of Criminal Appeals. In granting habeas relief to an arrested news dealer, that court declared violative of article I, section 8 an ordinance of the City of Seguin forbidding the sale of a particular Chicago newspaper: The power to suppress one concedes the power to suppress all.... The doctrine of the constitution must prevail in this state, which clothes the citizen with liberty to speak, write, or publish his opinion on any and all subjects. Ex parte Neill, 32 Tex.Crim. 275, 22 S.W. 923, 924 (1893). In Ex parte Foster, 44 Tex.Crim. 423, 71 S.W. 593 (1903), the same constitutional guarantee precluded a judicial attempt to suppress publication of testimony in a murder trial by the editor of the Houston Chronicle. See also Ex parte McCormick, 129 Tex.Crim. 457, 88 S.W.2d 104 (1935). In striking down a Disloyalty Act adopted during World War I, the court similarly emphasized that “the use of [particular] language per se [cannot be made] a felony ... without offending against [this] provision of the Bill of Rights.” Ex parte Meckel, 87 Tex.Crim. 120, 220 S.W. 81, 84 (1920). In our civil jurisprudence, the “constitutional guaranty of liberty of speech” was accorded early respect, precluding an injunction to restrain publication of a libel. Mitchell v. Grand Lodge Free & Accepted Masons, 56 Tex.Civ.App. 306, 121 S.W. 178, 179 (Dallas 1909, no writ). Our court’s first use of section eight to safeguard speech came in Ex parte Tucker, 110 Tex. 335, 220 S.W. 75, 76 (1920), where habeas relief was accorded to one held in contempt for violating an injunction by making “slanderous epithets to the female telephone operators” during a labor dispute. In thereafter refusing to enjoin publication of an alleged libelous article, the court in Strange v. Biggers, 252 S.W. 826 (Tex.Civ.App.—Dallas 1923, no writ), declared that freedom of speech will necessarily end when supervision by a court of equity of the expressions and sentiments of the individual is allowed to begin. See also Pirmantgen v. Feminelli, 745 S.W.2d 576, 579 (Tex.App.—Corpus Christi 1988, no writ) (holding unconstitutional injunction barring dissemination of allegedly libelous letter). Consistent with this jurisprudence and the history of our state constitution, this court announced in Davenport that restrictions must be targeted at the effect of expression rather than at the expression itself. There, “an imminent and irreparable harm to the judicial process [that] deprive[s] litigants of a just resolution of their dispute” was determined to be the effect of expression to which a judicial order could be directed. 834 S.W.2d at 10. Second, we emphasized the need to ensure that any limitation “represents the least restrictive means to prevent that harm[ful effect.]” Id. That same standard controls here. Freedom of expression may not be restricted solely on grounds that its exercise will have the effect of producing imminent and irreparable harm. Restraints may be imposed only if the injunctive relief granted encompasses the least restrictive means of protecting against the alleged harmful effect. In resolving both whether the alleged effect was imminent and irreparable and whether the temporary injunctive relief granted here was the least restrictive means to prevent that harm, we look to the injury asserted, the relief requested, and the underlying evidence. IV. Encompassed within this large “speech-free” zone around each of the clinics was not just clinic property and the area immediately in front of entrances and exits of the clinics and their parking lots, but public streets and sidewalks as well. This restriction had the effect of closing to protestors during the Republican Convention the entire city block on which the Planned Parenthood clinic was located, and displacing them across several of Houston's busiest streets. The one-hundred foot limitation similarly barred protests during this critical time on public streets and sidewalks near the other clinics. The one-hundred foot speech-free zone provision of the temporary restraining order here bears a striking resemblance to that at issue in Ex Parte Henry prohibiting strikers from picketing “on, across, at or near or within 100 feet of the railroad tracks” being used to transport freight into their employer’s plant. 215 S.W.2d at 590. In voiding that injunction, this court concluded that So long as the pickets did not physically obstruct the spur tracks and thereby nullify or seriously impair the right of the railways to use the street, they had the same right to use the streets as the railways had. Id. at 597. Unless such a restriction is proved to be the least restrictive means of guarding against an irreparable and imminent injury, it is an impermissible infringement on our state constitutional right of free expression. While the one-hundred foot limitation here, simply by the mere fact of distance, might have had the general effect of preserving clinic access and protecting patients, staff and customers against intimidation and harassment, it was not proved at the trial court hearing that this large zone was the least restrictive means for guarding against these injuries. Although a map of the Planned Parenthood facility was referred to at the hearing on the restraining orders, it was not admitted into evidence. As to the other clinics, no evidence was offered regarding their location and physical facilities. It was recognized at the hearing that these varied widely, from free-standing buildings on heavily travelled city streets to smaller facilities in high-rise offices. Those opposing the one-hundred foot speech free zone argued to the trial court that it was not tailored to the circumstances of each individual clinic. Rather than offering specific evidence justifying a particular distance for each clinic, those seeking the restraint urged a uniform restriction for “administrative convenience.” As our sister court has noted, “the argument of convenience can have no weight as against those safeguards of the constitution which were intended by our fathers for the preservation of the rights and liberties of the citizen.” Ex parte McCormick, 88 S.W.2d at 107. Nor was it shown that the other provisions of the temporary restraining orders provided inadequate protection. In fact, the parties seeking injunctive relief were not even in agreement as to the necessity of the one-hundred foot limitation; the State of Texas maintained that a thirty-foot zone was adequate to protect against any threatened injury. Given the potential harmful impact of Relator’s demonstrations on the fundamental constitutional right of privacy of women desiring access to these clinics, her decision to grant emergency relief is understandable. However, our state constitution requires that we enforce its stringent preference for freedom of expression even for those who advocate interference with other constitutional rights. Without specific findings supported by evidence that the 100-foot speech-free zone was the least restrictive means to ensure unimpeded access to clinics and guard against intimidation and harassment, we hold that this limitation in the restraining orders violates article I, section 8 of the Texas Constitution. Throughout the nation, peaceful antiabortion picketing has given way to increasing incidents of violence, vandalism and trespass, as well as blockading of clinic entrances denying women their right to seek reproductive health services, including abortions. Effective injunctive relief is available to protect against these harms. There may well be situations in which prohibiting demonstration within a limited area is essential to protecting a woman’s right to choose whether to have an abortion. Here, though, the limited record before the trial judge at the hearings on temporary restraining orders did not support a one-hundred foot ban on speech. We should not be understood as saying the trial judge could not, following a more complete evidentiary hearing on permanent injunction, impose restrictions around the Houston clinics, either using a limited geographical ban on activity or restricting the number of protestors. Every such restriction must, however, be justified by a proper evidentiary showing that such measures are essential to preserve the right of clinic access, and that each satisfies fully the standard we have required under the Texas Constitution. A least restrictive means requirement ensures that, when a variety of methods are available to prevent harm, our constitution commands the use of that approach which is least intrusive as to individual liberties. The West Virginia Supreme Court has similarly recognized that its “state constitutional free speech provisions would certainly compel” the use of a “less restrictive alternatives” analysis. West Virginia Citizens Action Group, Inc. v. Daley, 174 W.Va. 299, 324 S.E.2d 713, 725 (1984). Nor does this requirement differ significantly from the appropriate interpretation of the meaning of “narrowly tailored” under the better reasoned federal jurisprudence. See, e.g., Project 80’s, Inc. v. City of Pocatello, 876 F.2d 711 (9th Cir.1989); Pursley v. City of Fayetteville, 820 F.2d 951 (8th Cir.1987); City of Wateska v. Illinois Public Action Council, 796 F.2d 1547 (7th Cir.1986), aff'd mem., 479 U.S. 1048, 107 S.Ct. 919, 93 L.Ed.2d 972 (1987); Wisconsin Action Coalition v. City of Kenosha, 767 F.2d 1248 (7th Cir.1985); Association of Community Org. for Reform Now v. City of Frontenac, 714 F.2d 813 (8th Cir.1983). The eventual, unfortunate repudiation of this protective standard by the United States Supreme Court in Ward v. Rock Against Racism, 491 U.S. 781, 798-99, 109 S.Ct. 2746, 2757-58, 105 L.Ed.2d 661 (1989), has justifiably met with criticism. By now merely requiring that the means chosen “promotes a substantial government interest that would be achieved less effec tively ” otherwise, id. at 799, 109 S.Ct. at 2758 (emphasis supplied), that Court tolerates rather substantial adverse effects on speech if masked as directed to some purported goal other than suppression. This lesser standard dilutes constitutional speech protections and assures that there will be “trampl[ing] on the rights of others” : those who express unpopular views. Unless alternative methods of protecting against harm are considered, courts cannot evaluate whether the means selected are narrowly directed to that objective. See id. at 806, 109 S.Ct. at 2762 (Marshall, J., dissenting). As explained by the commentator upon whom Justice Gonzalez relies, 859 S.W.2d at 59-60 (Gonzalez, J., concurring), consideration of less restrictive alternatives "is relevant to deciding whether government has in fact left too little opportunity for communicative activity, whether for speakers or for listeners.” Laurence H. Tribe, American Constitutional Law § 12-23 (2d ed. 1988). To provide speech the full protection guaranteed by article I, section 8, our evaluation of restrictions must consider whether the method of preventing harm constitutes the least restrictive means. In concurring in today's judgment, despite their protestations to the contrary, Justice Gonzalez and Chief Justice Phillips do, in fact, evaluate lesser intrusive means of preventing harm in determining whether the 100-foot speech-free zone may be upheld. Both note, as do I, the other less restrictive provisions of the trial court’s temporary order which appear designed to protect the right of clinic access. It is preferable, however, not just to employ a least restrictive means analysis here, but to reaffirm it clearly as an essential element of our jurisprudence. This ensures more consistent judicial consideration that cannot waver depending on a judge’s personal approval or disapproval of the message that has been restricted. Today our court continues to favor the growth and enhancement of freedom not its constraint. The fact that vigorous debate of public issues in our society may produce speech considered obnoxious or offensive by some is a necessary cost of that freedom. Our Constitution calls on this court to maintain a commitment to expression that is strong and uncompromising for friend and foe alike. Accordingly, Relators remain discharged. Concurring opinion by PHILLIPS, C.J., joined by CORNYN, J. . Conversely, in Ex parte Pierce, 342 S.W.2d 424 (Tex.), cert. denied, 366 U.S. 928, 81 S.Ct. 1650, 6 L.Ed.2d 388 (1961), we appropriately denied ha-beas relief after determining that the underlying order was constitutional. . While claiming that Texas’ repudiation of the collateral bar rule has nothing to do with affording special protection for speech, Chief Justice Phillips relies exclusively upon cases in which this court permitted collateral review of court orders restricting freedom of expression. 859 S.W.2d at 37 (Phillips, C.J., concurring). I certainly do agree, however, that this court’s review in a habeas proceeding is not limited to whether the underlying order unconstitutionally infringes upon that particular right; an order unconstitutional on any grounds is not enforceable by contempt. . See Note, Defiance of Unlawful Authority, 83 Harv.L.Rev. 626, 635 (1970) (noting that the collateral bar rule may stifle freedom of expression). . Relying solely on the collateral bar rule to decide this case, the dissent, in a series of contradictions, suggests that, in appropriate cases, constitutional challenges may be permitted by those jailed for exercising their right of free expression, while at the same time making clear that an appropriate case will never arise. One exception that "may apply” occurs when an order is "transparently invalid,” 859 S.W.2d at 65 (Hecht, J., dissenting), a term the dissent employs yet refuses to define. This exception, allegedly "may account for several of the Texas free speech cases,” though we are not told which ones. Id. at 69. This exception apparently protects some forms of speech but not others such as demonstration by Relators in Houston. Perhaps forgetting that this case involves the right of free expression, the dissent announces that "Relators’ circumstances are similar to those we described ... over a half century ago," in a case involving attempted collection of a cigarette tax. Id. at 70 (citing Ex parte Kimberlin, 126 Tex. 60, 86 S.W.2d 717 (1935)). A second exception seemingly recognized by the dissent would permit collateral review in cases involving civil, as opposed to criminal, contempt. Id. at 68. Here, Relators were jailed until they purged themselves of contempt by swearing future compliance with the trial court’s order. Even though this case involves civil contempt, the dissenting justices nonetheless refuse to review the constitutionality of the underlying order. Yet these purported exceptions are only a mirage, since even "transparently invalid" orders or unconstitutional ones forming the basis for civil contempt must be appealed prior to their violation. The dissent would require an attempt to appeal the underlying order restricting speech no matter how limited the time available. Id. at 70 n. 26 (relying on In re Providence Journal Co., 820 F.2d 1354 (1st Cir.1987) (en banc) (requiring attempt to appeal, even when time available is a matter of hours)). The dissent would deny Relators relief because they "made no effort to seek review by appeal.” 859 S.W.2d at 70. Relators are thus faulted for failing to pursue a remedy not available under Texas law, which prohibits an appeal of a temporary restraining order. The dissent also suggests a possible exception to the collateral bar rule when an appeal of an order restricting expression cannot be timely prosecuted. But determination of how much time must be spent pursuing an appeal prior to speaking out in violation of a court order necessarily places courts in the position of evaluating the importance of the timing of the speech. Judges, then, would be elevated to censors required to examine the content of the speech to determine whether or not the message could wait a week, two weeks, a month or years until an appeal is prosecuted. If Relators could not have obtained a ruling on an appealable temporary injunction and subsequent emergency appeal until the second day of the Republican convention, would their rights be adequately protected? What if no ruling were possible until the very last day? Would the dissent require silence in the meantime? Of course, what the dissent is truly demanding are not exceptions, but strict enforcement of the collateral bar rule, which is supposedly essential to the ability of “trial courts to enforce orders in volatile situations.” Id. at 69. Our decision today, however, in no way lessens the power of a trial court to render an order in accord with the Texas constitutional standard and to enforce that order through the power of contempt. Contrary to the dissent, I cannot see how justice is served by leaving imprisoned those found to have violated an order shown to be unconstitutional. . Adkins Architectural Antiques and Brian G. Martinez D.D.S., two businesses adjoining the Planned Parenthood Clinic on Berry Street, joined the clinic’s request for a restraining order. . Similarly, the temporary restraining order applicable to the other clinics barred "[tjrespass-ing on, sitting in, blocking, impeding or obstructing access to, ingress into or egress from any part of any of the buildings, the clinics’ parking lots and any of the clinics’ or parking lots’ entrances and driveways.” .Near identical provisions were included in the order applicable to the other clinics. . Tex. Const, art. I, § 8, provides in full that: 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 of libels, the jury shall have the rights to determine the law and the facts, under the direction of the court, as in other cases. . See, e.g., David A. Grimes, Jacqueline D. Forrest, Alice L. Kirkman & Barbara Radford, An Epidemic of Antiabortion Violence in the United States, 165 Am.J. of Obstetrics and Gynecology 1263 (1991); Bray v. Alexandria Women’s Health Clinic, — U.S. -, -, & n. 10, 113 S.Ct. 753, 780-81 & n. 10, 122 L.Ed.2d 34 (1993) (Stevens, J., dissenting) (detailing incidents of violence, vandalism and blockading by Operation Rescue). . Although not reviewed under our state constitutional standard, prohibitions encompassing more limited areas have been upheld elsewhere as a means of assuring clinic access. See Portland Feminist Women’s Health Ctr. v. Advocates for Life, 859 F.2d 681, 684 (9th Cir.1988) (12-foot rectangular zone in front of clinic); Thompson v. Police Dept. of New York, 145 Misc.2d 417, 546 N.Y.S.2d 945, 947 (N.Y.Sup.1989) (8 by 15 foot zone in front of clinic entrance). .See, e.g., Paul A. Blechner, First Amendment: Supreme Court Rejection of the Least Restrictive Alternative Test, 1990 Ann.Surv.Am.L. 331 (1991); Gregory L. Lippetz, The Day the Music Died: Ward v. Rock Against Racism, 25 U.S.F. L.Rev. 627 (1991); Carney R. Sherigan, A Sign of the Times: The United States Supreme Court Effectively Abolishes the Narrowly Tailored Requirement for Time, Place and Manner Restrictions, 25 Loyola L.A. L.Rev. 453 (1992). . See 859 S.W.2d at 62 (Gonzalez, J., concurring). . The only authority upon which Justice Gonzalez relies for requiring proof that the competing interest is truly compelling, Bering v. SHARE, 106 Wash.2d 212, 721 P.2d 918 (1986), cert. dismissed, 479 U.S. 1050, 107 S.Ct. 940, 93 L.Ed.2d 990 (1987), in fact reaches a result opposite to the one he endorses today. There, the Washington Supreme Court upheld a geographical ban on speech similar to the one we consider, even though other more specific provisions of the injunction were designed to protect clinic access. See 721 P.2d at 918 (Anderson, J., dissenting in part). . Since most of his lengthy writing has so little to do with today’s decision and so much to do with his fretting over Davenport, Chief Justice Phillips’ concurrence is addressed in an appendix. . While the concurring justices join in today's judgment, they do so in a manner that is directed more by labels than analysis. They resolve the issue presented by classifying the suppression of expression as "indirect” rather than "direct,” 859 S.W.2d at 59-60 (Gonzalez, J., concurring), or as a partial rather than a "total” ban, id. at 27 (Phillips, C.J., concurring), or as a mere “place” restriction rather than a true "prior restraint.” Id. Within the 100 foot areas, a "direct" and "total” ban was imposed to "restrain” speech “prior" to its exercise. Chief Justice Phillips provides no basis for distinguishing between the 100-foot speech free zone we consider today as simply a place restriction, as opposed to a 500-foot limitation, or one set at the number of feet encompassed within the Seguin city limits in 1893. See id. at 27 (conceding latter, at issue in Ex Parte Neill, 32 Tex.Crim. 275, 22 S.W. 923 (1893), is a “prior restraint"). Judicial inquiry is more appropriately focused on whether the restriction, however labelled, is directed solely to the harmful effects of speech and whether its proper objective is accomplished in the least restrictive manner. .In the words of Justice Holmes, genuine freedom of expression requires "not free thought for those who agree with us but freedom for the thought that we hate.” United States v. Schwimmer, 279 U.S. 644, 655, 49 S.Ct. 448, 451, 73 L.Ed. 889 (1929) (Holmes, J., dissenting).
Concurring opinion by GONZALEZ, J.
Dissenting opinion by HECHT, J., joined by ENOCH, J. APPENDIX I Response to Concurrence of Chief Justice Phillips Today at least five members of this Court continue to subscribe to the broad conception of individual liberty guaranteed under our state constitution and embodied in Davenport v. Garcia, 834 S.W.2d 4 (Tex.1992, orig. proceeding). While requiring a mere nine paragraphs to explain his own rationale for agreeing with the judgment entered today, Chief Justice Phillips writes at length about a guarantee of the Texas Constitution that he then chooses to ignore completely, since he is personally unable “to articulate its meaning with confidence.” 859 S.W.2d at 33. Instead, he prefers to resolve this case solely on federal constitutional grounds which are “more familiar” to him. Id. Rejecting the views of both this plurality and Justice Gonzalez regarding the import of Davenport for the instant case, his expansive writing addresses issues that even he concedes “would be folly to attempt to resolve here.” Id. at 16 n. 1. His search for “astonishing errors” in Davenport, id. at 28, is, itself, rather astonishing. In his zeal to dissent from each and every underpinning of that decision, Chief Justice Phillips goes to the extreme of questioning support for the court’s observations that “[f]rom the outset of this state’s history, freedom of expression was a priority.” id. at-(quoting Davenport, 834 S.W.2d at 7), and that The authoritarianism and unresponsiveness of Mexico to [certain] attempts to exercise and establish protection of free speech were a contributing factor to Texas’ revolution and independence. Id. Refusing to acknowledge the early commitment of Texans to freedom embodied in their Proposed Constitution for the State of Texas (1833), see id., Chief Justice Phillips disregards experiences that shaped their concerns including Mexican appropriation of printing presses brought to Texas, a mandated printer’s oath “not to disturb the peace,” instructions by the Commandant at Bexar to “prevent the enemies of order from circulating reports” and attempted military censorship of newspaper comment on “odious and noisy questions” about the conduct of governmental affairs. Indeed, our Texas Declaration of Independence emphasizing that the Mexican government had removed “even the semblance of freedom,” complained that the expression of the citizenry in the form of “petitions and remonstrances” had not only been disregarded but that spokesmen like Stephen F. Austin had been “thrown into dungeons.” Austin, himself, had previously called for “an inviolable guarantee of liberty of speech.” He contended that A free press was the battery, pen and ink the small arms, and sound principles the balls and shells with which well disseminated and united public opinion [could] beat down aristocratic privilege and abuse. When such efforts proved unavailing, and as a basis for “exhort[ing] every citizen to march as soon as possible” so that Texas “be freed from military despots before it is closed,” he also, as Chairman of a Committee of Safety, in a Circular to the public protested that the Mexican government had “suppressed, by military influence, the expression of public opinion.” This history is, of course, ignored in today’s attack on the court’s prior writing in Davenport, as is the call for a “full, clear, and comprehensive bill of rights” in the earlier Declaration of Independence, made at Goliad on December 20,1835. This call was answered shortly thereafter in 1836 with the adoption of the Declaration of Rights in the Constitution of the Republic of Texas. It is the freedom of expression guarantee of Section 4 of this Declaration to which the court in Davenport referred in concluding that Rather than a restriction on governmental interference with speech such as that provided by the First Amendment of the United States Constitution, Texans chose from the beginning to assure the liberties for which they were struggling with a specific guarantee of an affirmative right to speak. 834 S.W.2d at 7-8. But Chief Justice Phillips will have none of this. There is nothing unique about Texas, he insists. In defiance of the historical record, he insists that there is simply insufficient repetition by the Texans of the revolutionary era in asserting their concerns about liberty and claims an interest in this vital subject must be confined to one man, Stephen F. Austin, long revered as the father of Texas. 859 S.W.2d at 30. Any fair analysis of our history justifies our reading of it in Davenport; the desire for freedom of expression was hardly limited to one man or one document. So devoid of historical support is Chief Justice Phillips that he must cite to an article whose very title contradicts his opinion and speaks to what is special about this state— Rampant Individualism in the Republic of Texas. In fact, that study heralds a widespread passion for freedom of speech, which the motto of the Matagor-da Colorado Herald further exemplified: “Give me liberty to know, to utter, and to argue freely, above all liberties." He prefers to denigrate the work of the Texas drafters of that same era on the unusual grounds that they must have considered the constitutional experience of others and because the strong language they chose in 1836 did not attract the enthusiasm of one historian a century later. Certainly Texans did not live wholly isolated from the rest of the world and human experience in 1836,1845, or 1876, nor do they now. Of course, there are others here and abroad who have made enormous contributions to freedom. The question resolved by the court in Davenport and addressed once again today is whether the Texas judiciary will contribute to that effort with independent decisionmaking or serve only to parrot the thinking of an omniscient federal judiciary on every civil liberties question. Not content to disparage only the first clause of article I, section 8 on which Davenport centered, Chief Justice Phillips extends his criticism to the second as well: [A]nd no law shall ever be passed curtailing a liberty of speech, or of the press. Though aware that such wording was not commonly employed elsewhere at the time of its original adoption in Texas, Chief Justice Phillips immediately assumes that our Texas founders were simply penning platitudes rather than constitutional guarantees. 859 S.W.2d at 22-23. He refuses to accord any significance to this clause, first incorporated by Texans in 1836, because of differing amendments rejected at the Pennsylvania Constitutional Convention of 1790 and the Texas Reconstruction Convention of 1868. As to the latter, it is difficult to see how the rejection of an amendment offered by a delegate “who voted with the Radical Republicans” to strike this clause constitutes “at least circumstantial evidence” of anything. Passing quickly over the particular wording of that part of article I, section 8 applicable here and in Davenport, Chief Justice Phillips instead dissects another largely uninterpreted clause. 859 S.W.2d at 23. In order to dilute our state constitutional free speech guarantee, this concurrence focuses almost exclusively on constitutional language dealing with libel actions. See, e.g., id. at 28 (deriding as a “curious conclusion” Davenport’s reference to Texas’ early commitment to freedom of speech, since the constitution also “in common with most American state constitutions, expressly recognized criminal libel prosecutions”); id. at 25 (condemning the Court’s “characterizing” of the 1875 Convention with regard to resolutions containing a truth defense in libel actions). The law of defamation is now declared the superior lens through which the Texas commitment to freedom of expression must be viewed. Not only did this Court in Davenport fail to appreciate the marvels of this wonderful looking glass, but Chief Justice Phillips also notes the similar failings of those other state courts that have “deemed their free expression clauses broader than the corresponding federal guarantee.” Id. at n. 24. While irrelevant to any of the parties before us, a review of the Texas law of libel is absolutely essential to the concurrence; without it, an argument could never be made that “proponents of free expression died hard” in Texas nor the quite extraordinary assertion that [by] 1876, Texas, at least from a constitutional standpoint, was no longer on the cutting edge of free expression; it was not even in the mainstream. 859 S.W.2d at 25. Such claims hardly comport with the reality of nineteenth century Texas in which the ordinary newspaper editor has been described as disposed to discuss public men and public measures with the utmost freedom, to denounce without restraint what he believed to be wrong, and to advocate with vigor and fervor what he conceived to be right. Only during the period of reconstruction that followed the Civil War and immediately preceded the 1876 Convention was the Texas editor confronted by the unaccustomed fact that the frank expression of his opinions as to public policy and the acts of those in authority was liable to be construed as treason. Interestingly, Chief Justice Phillips’s primary expert on our state’s history of freedom of expression is the occupying Union General during Reconstruction, who advances the quite preposterous claim that such freedom “ha[d] never existed in Texas,” 859 S.W.2d at 31 (quoting General J.J. Reynolds, November 4, 1868). This wholly unsupported assertion contrasts with the decision of even the delegates to the Reconstruction Convention of 1868 to reject conformity of our Texas Bill of Rights with the Federal Bill of Rights. We are told that our Texas guarantee of freedom of expression is but a poor copy of an earlier Pennsylvania Constitution. 859 S.W.2d at 21 (citing Pa. Const, art. IX, § 7 (1790) as “the paradigm for the Texas guarantees”). Even were it true that our forbears simply copied identical language from the federal constitution or that of another state, that does not mean that they accepted the identical meaning attached by that other forum, either then or now. But in this particular instance, what we are not told is that the Pennsylvania courts have regularly interpreted this language as “independently protect[ing]” expression, William Goldman Theaters, Inc. v. Dana, 405 Pa. 83, 173 A.2d 59 (1961), and as “even more protective of speech than the federal Constitution.” Franklin Chalfont Assoc. v. Kalikow, 392 Pa.Super. 452, 573 A.2d 550, 556 (1990); see also Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981). Nor are they alone. Almost a century ago wording similar to that contained in article I, section 8 was described as “terse and vigorous” and “broader” than the comparable federal provision with which it “varies” and as “giv[ing] [citizens] greater liberty in the exercise of the right granted.” Dailey v. Superior Court, 112 Cal. 94, 44 P. 458, 459 (1896). The highest court of another state to whose constitutional language on freedom of expression Chief Justice Phillips refers has reached the same conclusion. See O’Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521, 528 N.Y.S.2d 1, 4-6, 523 N.E.2d 277, 280-82 (1988). Indeed, what he demands today is not so much the imposition of Pennsylvania constitutional language but the minority approach to interpreting that language, which that very state has rejected. The consternation expressed in today’s concurrence is hardly limited to Davenport; what really seems to upset Chief Justice Phillips is a decade of important related jurisprudence. Both this court and our sister court, the Court of Criminal Appeals have recognized the independent vitality of our Texas Constitution rather than relying exclusively on the federal judiciary. See, e.g., LeCroy v. Hanlon, 713 S.W.2d 335, 338-39 (Tex.1986); In re Baby McLean, 725 S.W.2d 696, 698 (Tex.1987); Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983); Heitman v. State, 815 S.W.2d 681, 690 (Tex.Crim.App.1991). He repudiates the rationale of all of these opinions. Additionally Chief Justice Phillips declares these rulings of our highest Texas courts “simply wrong” in describing a federal constitutional floor for individual liberties, which the states may equal or exceed with a ceiling — a greater level of protection. 859 S.W.2d at 32. When both federal and state constitutional claims are raised, a state court may not, under the supremacy clause, U.S. Const, art. VI, cl. 2, afford less protection to individual rights than that guaranteed by our national Bill of Rights. In that sense, the prior writings of this court are fully accurate regarding a “federal safety net” — a floor for our liberties and a potentially higher state ceiling. It is also true that an independent state judiciary may interpret its fundamental law as affording less protection than our federal charter. Chief Justice Phillips prefers the latter. In his view not only does our state charter fail to offer a more expansive ceiling for broader freedoms but it fails even to offer a floor. Chief Justice Phillips insists that the poor wording selected by the Texas frontiersmen provides even less protection than those guarantees found elsewhere, 859 S.W.2d at 31; apparently our State Constitution offers only superfluous subflooring for individual rights. In essence his position is that anything not already written about the scope of freedom of expression can best be obtained from Washington. The possibility that state jurists have the capacity for thoughtful, independent consideration of even identical constitutional language is not even a conceivable possibility. Fortunately our court continues to reject this view. Rather we agree that our own constitutional guarantees must be truly independent of the rising and falling tides of federal case law both in method and in specifics. State courts cannot abdicate their responsibility for these independent guarantees, at least not unless the people of the state themselves choose to abandon them and entrust their rights entirely to federal law. State v. Kennedy, 295 Or. 260, 666 P.2d 1316, 1323 (1983). Lost in the discussion of the law of Blackstone, of defamation and the federal courts, Chief Justice Phillips forgets that “[historical analysis is only a starting point” for understanding our Constitution; “[i]n no way must our understanding of its guarantees be frozen in the past.” Davenport, 834 S.W.2d at 19. Our Texas Constitution is not a collection of meaningless paper promises, mere surplus-age to the federal guarantees. Rather we as jurists are summoned to give effect to its terms whenever liberty is threatened. A state court that dares to give such independent meaning to the fundamental governing law adopted by its citizens assures only “five justices’ ephemeral notion of the greater good,” 859 S.W.2d at 32. A federal court only “do[es] good” and must be copied. A state court that assures greater liberty rights for its citizens must necessarily be in the “grab bag” business of “result oriented pronouncements;” a federal court only gets the right result with the right reasoning. Id. This is the essence of the view urged with such vehemence by Chief Justice Phillips in an attack not limited to the five jurists with whom he differs today, but aimed more generally at the disavowal of prior Texas rulings upholding state constitutionalism as well as those other state courts that have “deemed their free expression clauses ‘broader’ than the corresponding federal guarantee.” Id. at 32 n. 34; see also supra text accompanying n. 22. Chief Justice Phillips is more than willing to find fault with attempts to recognize our state constitution as a separate, firm basis for our liberties, but wholly reluctant to assist in a “principled articulation” and application of its terms. Id. at 32. To him, only the possibility that our state judiciary may interpret our state charter as affording less protection than the federal affords any hope “of principled state constitutional development.” Id. at 32 n. 34 (offering a rare line of praise for my opinion because of its acknowledgement that a state constitution could conceivably offer less protection). The concurrence naturally derides as a “false construct,” Id. at 33, the sound reasons relied upon by this court in Davenport, 834' S.W.2d at 17-19, to justify looking first to our state constitution. His broadside is further extended to a most accurate summary of the facts here while failing to identify a single, specific shortcoming in that recitation. 859 S.W.2d at 33-36 Chief Justice Phillips then concludes by copying not only the reasoning but the buzzwords of his sole “commentator” on “result-oriented pronouncements” — Justice Hecht’s concurrence in Davenport — of which only a more verbose replay has been provided today. Id. at 37. A new claim that our constitution has been treated as “a handy grab bag” and old charges of “case-by-case activism” and “unseemly chauvinism,” id., — charges directed at the just pride that this court has taken in our unique Texas heritage, our Texas Constitution, and our Texas jurisprudence — have been answered fully in Davenport: In interpreting our constitution, this state’s courts should be neither unduly active nor deferential; rather, they should be independent and thoughtful in considering the unique values, customs, and traditions of our citizens.... While reflecting local concerns and assuring local accountability, reliance by this court on our own constitution allows Texas to have a meaningful voice in developing this nation’s jurisprudence.... ■ As a state court, sitting in Texas, our expertise is in Texas law, our judges are Texas citizens and members of the Texas Bar, and our concerns are Texas concerns. If we simply apply federal law in all cases, why have a Texas Supreme Court?.... ... [Consistent with the very diversity that supplies strength to our union, we build from experience in Texas and elsewhere to enhance individual liberty.... ... [W]e accept today ... the responsibility to conduct a thoughtful, complete, and independent search for a sound understanding of our most fundamental state law. 834 S.W.2d at 18, 19, 20, 22, 23. Hopefully an eventual willingness of all members of this Court to accept this responsibility will produce considerably “more substantial” efforts in the future. 859 S.W.2d at 37. All that remains “flawed” today is not the “methodological framework” of Davenport, id., but the unwillingness of four justices on this court to honor and protect it. . See Eugene C. Barker, Notes on Early Texas Newspapers 1819-1836, 21 Sw.Hist.Q. 127, 128 (1918). . Id. at 130 (describing printers’ oath). . Letter from Colonel Domingo de Ugartechea [Commandant at Bexar] to the Principal Com-mandancy of Coahuila and Texas, dated July 15, 1835, 1 Papers of the Texas Revolution 245 (John Jenkins, ed. 1973). . Letter from General Martin Perfecto de Cos to the Editors of the Mercurio de Matamoros dated March 31, 1835, 1 Papers of the Texas Revolution 50 (John Jenkins, ed. 1973), to which these early journalists appropriately expressed outrage, indicating that their writing about "'odious questions’ [was] indispensable [for] calling the attention of the Government” and noting the eagerness of the people for a response to the "remonstrance [that] had been made to the Government." See Letter from the Editors of Mercurio de Matamoros to General Martin Perfecto de Cos, Commandant General of the Eastern Internal States, dated April 13, 1835, id. 65, 66. .See Eugene C. Barker, The Life of Stephen F. Austin 72 (2d ed. 1949). . Id. at 342. . Circular from Committee of safety of the jurisdiction of Austin, October 3, 1835, 1 Papers 19 (Jenkins). . Nor was that call isolated. Austin had summoned Texans to "express our opinions on the present state of things, and to represent our situation to the government." Speech of Colonel Austin delivered September 8, 1835, 1 Papers 423, 427 (Jenkins). They were doing just that. In Nacogdoches with an "exchange [of] their ideas freely and fearlessly,” they sought "the preservation of human rights" and opposed "symptoms of tyranny dangerous to liberty.” Nacogdoches Meeting, August 15, 1835. Id. at 343-44. At the same time their neighbors sought newspaper publication of Resolutions adopted at San Jacinto insisting that “there are certain, essential, sacred and imprescriptible rights which must be guaranteed to every citizen.” See id. at 317-21. . Ransom Hogan, Rampant Individualism in the Republic of Texas, 44 Sw.Hist.Q. 454, 456-57 (1941). Because these early Texans "were irascible” and "enjoyed fighting" often sparked by “[u]nbridled talk,” id, Chief Justice Phillips amazingly concludes that these people, who so prized freedom and individualism, lacked "tolerance” of expression. . Id. . See 859 S.W.2d at 29 (quoting Rupert N. Richardson, Framing the Constitution of the Republic of Texas, 31 Sw.Hist.Q. 191, 213 (1928)). This same commentator offers no support for Chief Justice Phillips' contention that Pennsylvania was the keystone state for the Texas freedom of expression provision. Speaking of our first charter, he writes that "[i]t does not appear that any one state constitution was followed.” Id. at 209. Commenting more specifically on the Declaration of Rights, he concludes It appears that the framers of this article had before them a copy of the Constitution of the United States and that of several of the southern and western states, and that they gathered from each whatever gems of political philosophy struck their fancy. Id. . Indeed, as indicated by another source upon whom Chief Justice Phillips relies: although delegates to the Constitutional Convention of 1845 mentioned from time to time the provisions existing in constitutions elsewhere, they were ready to agree with Rusk that "We can reflect for ourselves and are capable of forming a Constitution for ourselves.” Frederic L. Paxson, The Constitution of Texas, 1845, 18 Sw.Hist.Q. 386, 388 (1915). . Davenport acknowledged that our current charter was “molded after reflection on the constitutions of other states [but should not] veer in meaning each time the United States Supreme Court issue[s] a new decision.” 834 S.W.2d at 16 (quoting James C. Harrington, The Texas Bill of Rights 41 (1987)). . See Dow Chem. Co. v. Alfaro, 786 S.W.2d 674, 680 (Tex.1990) (Doggett, J., concurring) ("Never have we been required to forfeit our membership in the human race in order to maintain our proud heritage as citizens of Texas.”). . Chief Justice Phillips relies not just on Pennsylvania’s rejection of wording similar to that incorporated in the second clause of section 8, 859 S.W.2d at 22, to prove the meaningless nature of the Texas free speech guarantee, but also on its acceptance of wording similar to that of the first clause of section 8. Id, at 20. Not acknowledging this inconsistency, he insists that what "was unquestionably a triumph for conservative commercial interests and their allies" in Pennsylvania in 1790 be controlling law in Texas in 1993. Id. at 21. .In properly noting that "a proposal to replace the existing free expression provision with alternative language more similar to that of the First Amendment of the United States Constitution was explicitly rejected” in the 1876 Constitution, this Court in Davenport, 834 S.W.2d at 8, referenced defeat of a resolution by delegate Brady in favor of "including an affirmative grant of the liberty to speak and publish.” Id. at n. 13. The court did not address the impact of the Convention’s handling of another clause, not at issue in Davenport, dealing with libel actions and incorporated in the same rejected resolution. Nor is there any evidence to suggest that the same convention’s substituting the word "person” for "citizen” in article I, section 8 was some mere "printer’s error.” 859 S.W.2d at 30. Texas was not alone in broadening its protection to every "person.” See The Kentucky Bill of Rights: A Bicentennial Celebration, 80 Ky.L.J. 1, 41 (1990-91) (noting substitution of "person" in the freedom of expression provision of section 8 of the Kentucky Constitution of 1891 for “citizen” in that of 1792, art. XIX, § 7). .859 S.W.2d at 25 (quoting Frederic L. Pax-son, The Constitution of Texas, 1845, 18 Sw. Hist.Q. 386, 395 (1915)) (quoting W. Weeks, ed„ Debates of the Texas Convention 303 (Houston 1846)). Indeed, those debates reflect that the delegates chose a compromise whereby public figures were accorded less protection than private citizens. By the contemporary standards of the day, this appears to have not been significantly different from what even some newspapers advocated. For example, editor Godwin Brown Cotton announced in the August 21, 1830 issue of The Texas Gazette, published at Sam Felipe de Austin, that "our press shall never be made the vehicle of accusations against the private character of any individual whatever." But, according to a later commentator, public men, for public acts, [Cotton] says, are responsible and may be investigated in the press, but not so with private cases. See Eugene C. Barker, Notes on Early Texas Newspapers 1819-1836, 21 Sw.Hist.Q. 127, 131— 32 (1918). . A.C. Gray, A History of the Texas Press, in 2 A Comprehensive History of Texas, 1685-1897 368, 395 (Dudley G. Wooten, ed. 1989). . Id. Indeed, the one specific example given of a nineteenth century prosecution for seditious libel was during this period: The [editor of the Houston] Age charged that one of the officers of the State government was "the champion thief of America.” He was indicted by a Republican grand jury, charged with criminal libel, and gave bond in the sum of five thousand dollars for his appearance to answer. He republished the charge, insisted that it was true, and challenged the State to a trial; but the case was postponed from term to term and finally dropped. Id. at 403-04. . See Quinlan v. Houston & T.C. Ry. Co., 89 Tex. 356, 34 S.W. 738, 744 (1896) (explaining that, pursuant to a proclamation of U.S. President Andrew Johnson, this convention met to restore the Constitution of 1845 and disavow the 1861 Secession Convention); see also Grigsby v. Peak, 57 Tex. 142, 145, 150-51 (1882). . The delegates voted to retain Sections 3-21 of the Bill of Rights of the 1845 Constitution and rejected a committee recommendation that would have substituted a demand for federal conformity: The inhibitions of power enunciated in articles from one to eight inclusive, and thirteen, of the amendments to the Constitution of the United States, deny to the States, as well as to the General Government, the exercise of the powers therein reserved to the people, and shall never be exercised by the government of this State. 1 Journal of the Reconstruction Convention of 1868 235, 662 (1870). . See Goldman Theaters, 173 A.2d at 69, 72 (Eagen, J., dissenting). . In his demand for a wholly subservient role for Texas jurisprudence and his strained interpretation of the liberty guarantees contained in the Texas Constitution, Chief Justice Phillips overlooks the reality of federal jurisprudence. The vital meaning of constitutional language not uncommonly lies dormant. As the U.S. Supreme Court, in an opinion authored by Chief Justice Vinson, observed: no important case involving free speech [initially guaranteed in 1791] was decided by this Court prior to Schenck v. United States, 249 US 47 [39 S.Ct. 247, 63 L.Ed. 470] (1919). Dennis v. United States, 341 U.S. 494, 503, 71 S.Ct. 857, 864, 95 L.Ed. 1137 (1951). Similarly, more than half a century elapsed after enactment of the Fourteenth Amendment before its application of First Amendment guarantees to the states was acknowledged in Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925). As recently as Prudential Ins. Co. v. Cheek, 259 U.S. 530, 538, 42 S.Ct. 516, 520, 66 L.Ed. 1044 (1922), the United States Supreme Court continued to declare that "the Constitution of the United States imposes upon the States no obligation to confer upon those within their jurisdiction ... the right of free speech....” . See Judith S. Kaye, A Midpoint Perspective on Directions in State Constitutional Law, 1 Emerging Issues in State Const.Law 17, 19 (1988) (“that [some state constitutional provisions] are duplicated in the federal Constitution cannot mean that they are simply to be cloned to their federal counterparts”); see, e.g., Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548, 555 (1985) (reaching conclusion contrary to United States S