The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Ex parte Barton, decided yesterday by the Texas Court of Appeals (Chief Justice Bonnie Sudderth, joined by Judge Elizabeth Kerr), holds unconstitutional the Texas harassment statute:
(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment or embarrass another, he: …. (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another…..
"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 communication initiated by electronic mail, instant message, network call, or facsimile machine ….
(Since Barton's offense, the definition of "electronic communication" was broadened to include "a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, [or] any other Internet-based communication tool"; the court doesn't expressly deal with the new version, but its analysis should apply equally to the new version.)
The court reasons:
The criminalization of "annoying" behavior—without any objective measurement or standard—has been repeatedly held unconstitutionally vague …. [T]he subsection suffers from a fatal flaw of vagueness because the disjunctive series of the terms "harass, annoy, alarm, abuse, torment, embarrass, or offend" leaves the electronic-communications subsection open to various "uncertainties of meaning." …
And … we conclude that the term "reasonably likely" does not create a "reasonable person" standard sufficient to cure the failure of the subsection to specify whose sensitivities were offended…. "A reasonable person standard, even if present, probably would not, by itself, be enough to save [the statute] from a constitutional challenge. Even with an objective standard, vagueness may still inhere in the expansive nature of the conduct described. Moreover, even if a reasonable person standard clarified the law sufficiently to avoid a vagueness challenge, it would run into a serious overbreadth problem. The First Amendment does not permit the outlawing of conduct merely because the speaker intends to annoy the listener and a reasonable person would in fact be annoyed. Many legitimate political protests, for example, contain both of these elements."
Perhaps the best examples of the political, and often divisive, use of [social media] platforms start with our governmental leaders. Public reactions to President Donald Trump's prolific tweeting run the gamut from amusement, to annoyance, to distress—and all points in between…. Experience has taught us that whether the President's tweets—or an ex-spouse's emails [the facts in this case]—are annoying or offensive is a highly subjective inquiry, and the view of whether these communications are innocuous, humorous, annoying, or offensive will differ greatly from person to person. Consequently, we agree with Barton that the electronic-communications subsection is facially unconstitutional as vague and overbroad; as such, it is void and unenforceable….