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Technology Law and Policy Clinic at New York University School of Law & Woodhull Freedom Foundation Amici Curiae  in Barton & Sanders v. State of Texas 

The First Amendment protects speech that may  be unpleasant, including speech we detest. This Court  has long recognized that such speech can be vital for  our marketplace of ideas often precisely because it is  communicated with an intent and in a manner likely  to “harass, annoy, alarm, abuse, torment, or  embarrass”—the very emotive functions that are  criminalized by Texas Penal Code § 42.07(a)(7). In  dismissing these intents as not “legitimate,” and  concluding that communications sent with such  intents do not even qualify as speech under the First  Amendment, the Texas Court of Criminal Appeals failed to recognize that such communications are in  fact ubiquitous, frequently useful, and—most  importantly—constitutionally protected. The court’s  profound error on such a critical issue involving First  Amendment rights merits this Court’s consideration of Petitioners’ case. 

Section 42.07(a)(7) is substantially overbroad.  As discussed below, the statute prohibits a wide range  of expression that the First Amendment does and  should protect, from core political speech to  commonplace forms of self-help. Indeed, speech made  with the statute’s proscribed intents can often be  especially valuable and important to protect given its  integral role in advocacy. For example, an animal  rights organization might “annoyingly” comment on  the Facebook page of a federal or state agency to draw  attention to problematic government practices. The  purchaser of a faulty product might post “alarming” online reviews to prevent other would-be customers  from repeating their mistakes. The victim of  workplace harassment might post “embarrassing” 

Tweets about their employer to pressure it to change its misconduct policies. All considered,  unconstitutional applications like these far exceed the  statute’s conceivable legitimate sweep. In enacting  § 42.07(a)(7), the Texas Legislature may have sought  to address real and serious online harms, but this poorly drawn statute fails to do so without  overburdening protected expression. 

The statute’s overbreadth presents an  especially heightened risk of chilling protected  expression because it targets electronic  communications. Such communications often lack  clear indicia of intent. When people send emails or  post on social media, the intent of the speaker is often 

harder to discern than in the context of in-person or  even telephone communications. In those contexts,  prosecutors and juries can look to circumstantial  evidence such as a defendant’s body language or tone of voice. Additionally, electronic communications have unique features, like the use of emojis and internet  slang, that make their intended meaning and effect more ambiguous than other forms of speech. Fearing that their electronic communications will be  misinterpreted and used to criminally punish them,  speakers may choose not to express themselves at all. 

In refusing to even apply First Amendment  scrutiny to § 42.07(a)(7), the court below failed to  grasp the statute’s risk of chilling online speech, a  danger that will only grow as more states enact  electronic harassment statutes. This Court should  grant review to reverse the court below and ensure  that § 42.07(a)(7) and other similar electronic  harassment statutes do not chill protected speech.

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