Free Speech vs. Harassment in Texas

This page is for readers seeking to understand how the government can prosecute them for harassment (or stalking) based on communications that may seem like they should be protected by the Freedom of Speech clause of the First Amendment to the U.S. Constitution.

Others may find this post boring and tedious. Don’t say we didn’t warn you!

Not all Speech is Protected

If you think critically about it, you probably already understand that not all speech is protected. Some easy examples of unprotected speech are lying under oath (perjury), lies to commit a crime like fraud, false alarms like yelling “Fire!” in a crowded theater, and calling in a bomb scare (terroristic threat.) The US Supreme Court has identified only a small number of other areas of noncommercial speech that are not protected by the First Amendment such as obscenity, child pornography, fighting words, advocacy of imminent lawless behavior, true threats, and defamation.[1]See: Elonis v. United States, 575 U.S. ___ (2015)

Constitutional Analysis

When challenging the constitutionality of a law on Freedom of Speech grounds, a person must argue either (a) that the law is facially invalid because it prohibits a substantial amount of protected speech[2]Laws can violate the First Amendment “as written” even if not ALWAYS unconstitutional. See: United States v. Stevens, 559 U.S. 460 (2010), Ex parte Lo, 424 S.W.3d 10,18 (Tex.Crim.App. 2013) or (b) that the law is unconstitutional as applied to the specific facts of their case.

An “as-applied challenge” may not be appealed unless it was first raised in the trial court whereas a facial challenge may be raised for the first time on appeal.[3]Rabb v. State, 730 S.W.2d 751 (Tex.Crim.App.1987) Challenging the validity of the law itself requires a skilled criminal defense attorney, and an appeal implies that the defendant lost the trial. But a skilled criminal defense attorney is more likely to either win at trial or avoid trial altogether if the case is not winnable. As a result, most of the appeals court decisions regarding the constitutionality of the harassment statute only address facial challenges raised for the first time after conviction.

The first question to answer about the harassment law is whether or not it contains a content-based restriction on non-commercial speech. I believe that it does, especially in subsection (a)(7) regarding electronic communications, which would make it presumptively invalid and subject to “strict scrutiny.” To survive strict scrutiny, a law must not restrict a substantial amount of protected speech, it must further a compelling government interest, and must be narrowly tailored toward that interest.

If the law were deemed content-neutral or if it only restricted commercial speech, it would be presumed valid and only be subject to intermediate scrutiny. This lower level of scrutiny requires laws to further an important government interest by means that are substantially related to that interest.

Texas courts have decided that the harassment law passes the first stage of strict scrutiny because it does not restrict a substantial amount of protected speech. The law lists many ways in which a person can commit the offense, and approximately the first half of those ways involve unprotected speech.

The second half of the harassment list contains several actions that are not speech and speech prohibited for its manner rather than its content. The First Amendment protects speech that communicates ideas, opinions, and information, even when the content is unpleasant. The Texas Court of Criminal Appeals held that the manner and repetition of speech may render it “essentially non-communicative” when words are used as weapons to inflict emotional distress rather than for legitimate communication.[4]Scott v. State, 322 S.W.3d 662, (Tex. Crim. App. 2010) The courts have chosen to insert “communicative” into the definition of protected speech. Verbalizations or messages lacking the intent to communicate are not protected. In other words, although you may have a right to say awful things, screaming into a bullhorn at 3 AM when other people are trying to sleep may not be a legitimate attempt to communicate ideas, opinions, or information.

When the harassment law prohibits communicative protected speech, the second and third stages of strict scrutiny are applied. Texas courts found that the state does have a compelling interest in protecting a person’s personal privacy and that the harassment law, as written, is narrowly tailored to meet that interest. [5]I find it interesting that the same (male) Texas judges who elevate the importance of personal privacy regarding harassment and revenge porn fail to recognize it with regard to abortion rights. However, there may still be room for future as-applied challenges.

NOTE 1: In 2014, the Court of Criminal Appeals relaxed the repetition requirement under section 42.07(a)(7) to include messages separated by over a month.[6]Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014)
NOTE 2: The Ft. Worth court of appeals recently declared the electronic communications arm of the harassment statute unconstitutional for both vagueness and lack of a narrow focus. The opinion also postulated that a defendant could have more than one intent, only one of which may be protected.[7]Ex parte Barton, No. 02-17-00188-CR (Tex. App.—Fort Worth 2019) is currently before the Court of Criminal Appeals as PD-1123-19. The statute has since been amended but the new version is even broader. The Beaumont court and several others disagree with the Fort Worth decision.[8]Ex Parte McDonald, 606 S.W.3d 856 (Tex. App.–Austin 2020); State v. DAN M. GROHN 09-20-00075-CR (Tex. App.–Beaumont 2020)
NOTE 3: A three-judge panel of the Fourteenth court of appeals in Houston decided the electronic communications arm was content-neutral and not subject to strict scrutiny, but that it was still unconstitutionally overbroad.[9]Texas v. Jasper Robin Chen, No. 14-19-00372-CR (Tex. App.–Houston [14th Dist.] Dec. 31, 2020) Expect a rehearing en banc or perhaps a P.D.R.

Stalking under section 42.072(a)(2) of the Texas Penal Code is content dependant and criminalizes messages knowingly sent to make the recipient feel threatened or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended. Although true threats are unprotected, the second half of 42.072(a)(2) might be an unconstitutional prior restraint on protected speech, or at least worthy of an as-applied challenge.

Defendant’s Intent

In prosecutions for harassment and stalking, the perspectives of law enforcement, prosecutors, and even judges are, unfortunately, often clouded by their focus on the negative impact that hurtful speech had on the alleged victim. They tend to lose sight of the fact that the defendant’s actual INTENT is one of the most critical elements of these cases. The culpable mental state for harassment is the specific intent outlined in the statute, but stalking may be committed knowingly. Criminal defense attorneys must actively maintain focus on the defendant’s intent to avoid surrendering a potential source of reasonable doubt.

Conclusion & Suggestions

Established case law makes it difficult to win a facial challenge to the constitutionality of the harassment statute vis-à-vis the Free Speech Clause. A defendant will be much better served by an “as applied” argument preserved at the trial-court level.

Remember that offensive language is not necessarily unprotected[10]Cohen v. California, 403 U.S. 15 (1971) (This is the famous “Fuck the Draft” case from the Vietnam era.) and that a harassment prosecution must prove the defendant’s specific intent when engaging in the behavior rather than the alleged victim’s negative experience of the defendant’s behavior.

For example, if a defendant is accused of harassing a public official by revealing embarrassing information, is the intent really to torment the official, or is the intent to advocate change, expose corruption, or otherwise influence public policy with embarrassment as an unavoidable consequence? In a harassment case, it is not enough to show that the defendant knew, or should have known, that the revelation would be annoying, alarming, embarrassing, etc. The prosecution must prove, beyond a reasonable doubt, the defendant’s deliberate bad intent.

References

References
1See: Elonis v. United States, 575 U.S. ___ (2015)
2Laws can violate the First Amendment “as written” even if not ALWAYS unconstitutional. See: United States v. Stevens, 559 U.S. 460 (2010), Ex parte Lo, 424 S.W.3d 10,18 (Tex.Crim.App. 2013)
3Rabb v. State, 730 S.W.2d 751 (Tex.Crim.App.1987)
4Scott v. State, 322 S.W.3d 662, (Tex. Crim. App. 2010)
5I find it interesting that the same (male) Texas judges who elevate the importance of personal privacy regarding harassment and revenge porn fail to recognize it with regard to abortion rights.
6Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014)
7Ex parte Barton, No. 02-17-00188-CR (Tex. App.—Fort Worth 2019) is currently before the Court of Criminal Appeals as PD-1123-19.
8Ex Parte McDonald, 606 S.W.3d 856 (Tex. App.–Austin 2020); State v. DAN M. GROHN 09-20-00075-CR (Tex. App.–Beaumont 2020)
9Texas v. Jasper Robin Chen, No. 14-19-00372-CR (Tex. App.–Houston [14th Dist.] Dec. 31, 2020)
10Cohen v. California, 403 U.S. 15 (1971) (This is the famous “Fuck the Draft” case from the Vietnam era.)