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Was Texas’s Online Harassment Law Unconstitutional?

The Court of Appeals in the Second Appellate District of Texas recently heard a case regarding the constitutionality of the state’s online harassment law. The appellant argued that the definition of the offense was vague and the information presented in his case should have been quashed. The Court of Appeals agreed with the appellant, finding that the Texas statute under review was “facially unconstitutional,” reversed the decision, and ordered the trial court to dismiss the case.

Background of the Case

In 2013, Mr. B was charged with nine counts of harassment because he sent specific texts and emails to his wife. He tried to have the information quashed, arguing that Texas Penal Code § 42.07(a)(7) was unconstitutional. The trial court denied his motion. He then filed for a writ of habeas corpus, which the trial court also rejected.

Challenging the Trial Court’s Decision

After the trial court denied his motion and application, Mr. B filed an appeal. Again, he stated that Texas’s statute regarding online harassment did not provide a clear definition of unlawful behavior.

At the time Mr. B was charged with the offense, Texas Penal Code § 42.07(a)(7) was worded as follows:

  • “A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he:
  • Sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.”

Specifically, Mr. B stated that the statute was “vague and overbroad” because the terms “annoy” and “alarm” can mean different things to different people. Because the conduct is open to interpretation (namely the complainant’s), there is no clear standard of the prohibited behavior.

Mr. B also stated that the statute was unconstitutional, as it barred a person from expressing their true feelings to their spouse because they might consider such communication “annoying,” and, therefore, a violation of state law.

Understanding the First Amendment

The First Amendment to the U.S. Constitution states that the government cannot make a law banning a person’s freedom of speech.

Citing Scott v. State, the Court of Appeals recognized that free speech includes communicating and receiving:

  • Ideas,
  • Opinions, and
  • Information

The Court also noted that, although the constitution prevents states from enacting laws that violate this right, they can develop lawful statutes regarding communication that is intolerable to someone else and substantially infringes on their right to privacy.

To come to a decision regarding Mr. B’s arguments, the Court of Appeals had to determine whether or not a substantial amount of “constitutionally protected conduct” was prohibited by Texas Penal Code § 42.07(a)(7). It reviewed past cases concerning this statute, one of which being Wilson v. State. The Court agreed that when a person communicates with someone else, intending to harass, annoy, or alarm them, they could also be legitimately sharing ideas, opinions, or information with that person.

After its review of past cases, the Court of Appeals determined that Texas Penal Code § 42.07(a)(7) impacted issues of freedom of speech.

Determining if the Texas Law Was Vague and Overbroad

The Court of Appeals cited May v. State to discuss the constitutionality of a law.

In May, a statute violates the constitution if it:

  • Allows arbitrary and discriminant enforcement,
  • Does not provide fair warning, and
  • Prevents people from exercising their First Amendment rights

When laws are developed, it’s important to ensure they are specific enough that individuals know what type of conduct is prohibited so they do not pass the boundaries. In State v. Doyal, the court stated that criminal statutes must be clear enough that people know what is unlawful. This is especially true in cases where First Amendment rights might be affected.

Additionally, under Long v. State, a law is considered overbroad if a substantial amount of the conduct defined in it is protected by the Constitution.

In reference to Texas Penal Code § 42.07(a)(7), the terms “harass, annoy, alarm, abuse, torment, or embarrass” did not have a clear and objective standard of measurement. For example, if a person sends a message to others, some might interpret it as innocuous, while others might see it as offensive. The unlawful conduct as defined by the statute was also deemed unconstitutional numerous times in the past. Even after legislators updated the law in 2001, it included the same terms and did not overcome the vagueness of previous versions.

Finding that the version of Texas Penal Code § 42.07(a)(7) under which Mr. B was charged included vague definitions of prohibited conduct, the Court of Appeals reversed the trial court’s decision to deny Mr. B’s application for a writ of habeas corpus. It also sent the case back to the trial court to dismiss the prosecution.

For Effective Legal Defense, Contact Zendeh Del & Associates, PLLC

If you were accused of committing a crime in Galveston, our attorneys will provide the legal representation you need to fight charges. We have handled various criminal matters from assault and battery to violent crimes, and we know the law. Our team will thoroughly examine the statute you allegedly violated and relevant case law to ensure your constitutional rights were not infringed upon.

Schedule your free consultation today by calling us at (409) 204-5566 or contacting us online.