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 seem like they may be protected by the Freedom of Speech clause of the First Amendment to the U.S. Constitution.

Anyone else will probably 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, and yelling “Fire!” in a crowded theater (false alarm), or calling in a bomb scare (terroristic threat.) The US Supreme Court has identified only a few other areas of unprotected speech such as obscenity, child pornography, fighting words, advocacy of imminent lawless behavior, true threats,[1]See: Elonis v. United States, 575 U.S. ___ (2015) and defamation.

Constitutional Analysis

When challenging the constitutionality of a law on Freedom of Speech grounds, a person must argue either that (A) the law is facially invalid because it is 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 raised in the trial court but 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) As a result, most of the case law regarding the constitutionality of the Harassment statute addresses facial challenges raised after conviction.

Analysis of the Harassment law begins with a presumption that it is invalid because it is a content-based restriction on non-commercial speech.[4]Laws that restrict commercial speech are only subject to “intermediate scrutiny.” However, laws that withstand “strict scrutiny” are valid under the Free Speech Clause of the First Amendment.

Texas courts have decided that the 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 Harassment, and approximately the first half of them involve obscenity and threats, which are clearly not protected speech.

The second half of the prohibited list is split between unpleasant speech and actions that are not speech.  The First Amendment is supposed to protect all speech which 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”[5]Scott v. State, 322 S.W.3d 662, (Tex. Crim. App. 2010) when words are used as weapons to inflict emotional distress rather than for legitimate communication.  They are basically saying that although you may have a right to say something, repeatedly chewing someone out at 3AM may not be a legitimate attempt to communicate ideas, opinions, and information, and to that extent it would not be protected speech.

To the extent that communicative protected speech reaches the second and third stages of strict scrutiny, the courts found that the state has a compelling interest in protecting a person’s personal privacy and that the Harassment law, as-written, is narrowly tailored to meet that interest.

Unfortunately, the focus on the impact on the alleged victim tends to cloud the perspective of law enforcement, prosecutors, and judges to the point that they lose sight of the fact that the defendant’s actual INTENT is one of the most critical elements of a Harassment case.  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[6]Cohen v. California, 403 U.S. 15 (1971) (This is the famous “Fuck the Draft” case from the Vietnam era.) and that the prosecution must prove the defendant’s specific intent when engaging in the behavior rather than the alleged victim’s experience of that 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 and otherwise influence public policy with embarrassment as an unavoidable side-effect?  It is not enough to show that the defendant knew, or should have known, that the revelation would be embarrassing.[7]Compare and contrast the culpable mental states of “intentional” vs. “knowing” in Section 6.03 of the Texas Penal Code  The prosecution must prove, beyond a reasonable doubt, that the defendant intent was not legitimate.

References   [ + ]

1.See: Elonis v. United States, 575 U.S. ___ (2015)
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)
3.Rabb v. State, 730 S.W.2d 751 (Tex.Crim.App.1987)
4.Laws that restrict commercial speech are only subject to “intermediate scrutiny.”
5.Scott v. State, 322 S.W.3d 662, (Tex. Crim. App. 2010)
6.Cohen v. California, 403 U.S. 15 (1971) (This is the famous “Fuck the Draft” case from the Vietnam era.)
7.Compare and contrast the culpable mental states of “intentional” vs. “knowing” in Section 6.03 of the Texas Penal Code