Harassment Statute Violates First Amendment – Court Fails to Fix It

Texas passed a law meant to address abuse (let’s call it bullying) in the digital age. But as written the law can be interpreted to limit the ability of citizens to criticize government officials. Another overstep, another opportunity to learn something, just don’t rely on the court (not that you should) to do the teaching.

Texas Penal Code § 42.07(a)(7) states that “A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person … sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.”

As our readers are well aware that harassing, annoying, alarming, (verbally) abusing, tormenting, embarrassing, or offending government officials are not just protected by the First Amendment, the left likes that “freedom” so much they can’t even wait for you to finish dinner to exercise it.

No, the Left doesn’t want that sort of “expression” for everyone, just them, but in Texas, if you do it electronically you could be in violation of Texas Penal Code § 42.07(a)(7). Now, maybe I watched too much television as a kid but to my ear violating anything that starts with the words Texas Penal Code just sounds bad. But no one has yet been able to get the courts in Texas to agree that using those three words in to limit speech directed at people paid with tax dollars violates the Constitution.

Except for Texas Court of Criminal Appeals Presiding Judge Sharon Keller. When her court decided that this contradiction wasn’t worth examining she dissented.

If this Court believed that the prosecuting authorities would never use this statute to punish criticism of agents of the government, it ought to now recognize that such a belief was overly optimistic. Given the breadth of the electronic-communications harassment statute, and the potential to use it to suppress criticism of the government, we should grant review to address whether the statute is facially unconstitutional in violation of the First Amendment. Because the Court does not, I respectfully dissent.

Most of the objections you will find on our pages to laws related to speech turn on this point. Not wanting to hear it, in the case of citizen communications related to government, is exactly the reason why it should be heard. And while online bullying is a thing government should have every expectation that its job is to play catcher for every bit of harassing, annoying, alarming, (verbally) abusing, tormenting, embarrassing, whatever thrown their way as long as it does not violate the very narrow limitations that amount to threats of harm or death.

This was not, by the way, Judge Sharon Keller’s only dissent.

I have previously dissented to the refusal to grant discretionary review of a First Amendment facial challenge to the electronic-communications harassment statute. I pointed out that the breadth of the statute, applying to all electronic communications, could accurately be characterized as “breathtaking.” All that is required are two electronic communications that are intended and reasonably likely to annoy, alarm, or harass a particular person. In a prior case, involving a narrower but somewhat similar telephone harassment statute, I warned that, because the statute was not limited to phone calls made to someone’s home or personal phone, the statute could encompass a “call made to a public official at his government office.”

We can niggle over word choice, tone, and decorum, but at the end of any day, the State cannot be permitted to pursue regulations that suppress speech or punish people for using words or discussing ideas with the State they have decided are unsuitable in choice or frequency. Prosecuting authorities will use those statutes to punish criticism of themselves.

The appellant, in this case, seems a bothersome sort with an urge to harass (in this case) local police officers but as Judge Keller notes, the real problem is that the law as written is overbroad. It infringes on lawful speech.