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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