Texas Online Harassment Law Might Be Unconstitutional

The internet age has brought about new ways for humans to treat each other poorly. Anyone who has dared to post a comment online has probably been insulted, called terrible things, or otherwise tormented. Before the cell phone, you had to actually see a person or call their landline to be awful towards them. Nowadays, you’ve got dozens of apps that can give you instant access to someone. Cyberbullying is also a problem, and that’s probably what led to the creation of the Online Harassment law in Texas.

What is Online Harassment?

We start with the general harassment provision in the Penal Code, which is 42.07, and go down to subsection (a)(7).

A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person: (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

What’s an electronic communication? Good question.

(1) “Electronic communication” means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes:

(A) a communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine; and

(B) a communication made to a pager

So basically, any comments online, tweet, instant message, text, tik tok, youtube video, Snapchat communication will count.

What about the First Amendment?

The First Amendment limits the government’s ability to regulate speech. And defendants who are charged with online harassment should hire a lawyer who is ready to mount a first amendment defense and challenge the constitutionality of the statute. You do that by filing a motion to quash and a writ of habeas corpus. Then your trial judge will make a ruling as to whether the law is unconstitutional. However, if you win, expect the state to appeal. That’s exactly what happened in a recent case- JASPER ROBIN CHEN vs. the State of Texas.

In that case, the appellate court decided that the online harassment law was overbroad. That means it was not narrowly tailored in the way it sought to prevent online harassment. So while the government might have a goal to protect people from harassment, it can’t do so in a way that also prohibits protected speech. For example, you might want to let a politician know you disapprove of their job performance. You might do so through numerous embarrassing and annoying comments on social media. This new law would make that criticism illegal. And the First Amendment protects your right to free speech because it makes it difficult to crack down on unpopular speech. No one likes online trolls or crazy internet stalkers. But we can’t seek to stop deviant or nefarious online behavior by making all kinds of criticism and commentary illegal. If we did, then the police and government would be the arbiters of what can of speech is allowed. Think about a government employee or politician to whom you don’t want to have power over you, and now imagine they can have you arrested if you annoy them.

This ruling was by the 14th Court of Appeals, which means the State gets another chance to appeal to the Court of Criminal Appeals.