The Volokh Conspiracy

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"Little State Weasel" and the First Amendment

An interesting dissent from denial of review by Texas's high court for criminal cases.


From today's opinion in Ogle v. State from Texas Court of Criminal Appeals Presiding Judge Sharon Keller, dissenting from that court's decision not to review a lower court decision:

Appellant has been charged with two counts of the offense of sending harassing electronic communications. The alleged victims in this case are police officers. According to the information, Appellant made "repeated phone calls, calls for service, emails, and or subpoenas many of which contained offensive or disparaging language" with "intent to harass, annoy, alarm, abuse, torment, or embarrass" the officers. The information in this case appears to implicate core speech under the First Amendment—criticism of the government.

I have previously dissented to the refusal to grant discretionary review of a First Amendment facial challenge to the electronic-communications harassment statute. I pointed out that the breadth of the statute, applying to all electronic communications, could accurately be characterized as "breathtaking." All that is required are two electronic communications that are intended and reasonably likely to annoy, alarm, or harass a particular person. In a prior case, involving a narrower but somewhat similar telephone harassment statute, I warned that, because the statute was not limited to phone calls made to someone's home or personal phone, the statute could encompass a "call made to a public official at his government office."

Now we have a case in which the electronic-communications harassment statute has been invoked to punish communications made to police officers. If this Court believed that the prosecuting authorities would never use this statute to punish criticism of agents of the government, it ought to now recognize that such a belief was overly optimistic. Given the breadth of the electronic-communications harassment statute, and the potential to use it to suppress criticism of the government, we should grant review to address whether the statute is facially unconstitutional in violation of the First Amendment. Because the Court does not, I respectfully dissent.

This was a pretrial facial overbreadth challenge to the constitutionality of the statutory provision as a whole. (The provision is Texas Penal Code § 42.07(a)(7), "A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person … sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.") Because of this procedural posture, the opinion had no occasion to describe the facts of this particular case. But the defendant's brief in the lower court described the message to the police officers this way (and the defendant's lawyer, Mark W. Bennett, confirms that this was their substance):

The specific communication Mr. Ogle is accused of making to Lt. Skrocki is "but have been your typical arrogant, condescending, belligerent self who chooses to look the other way." CR-3191 18.

The specific communication Mr. Ogle is accused of making to Officer (or "Deputy") Paris include calling him a "little bitch" and a "little state weasel" and telling him, "You have a Constitution to uphold, son, you're pissing on it." CR-3192 10.

For more on other cases involving insulting messages sent to government officials, which have generally held that such speech (at least when it didn't involve phone calls to their homes) is protected by the First Amendment, see this post.