The Volokh Conspiracy
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Privacy, Doxing, Stalking, and People Who Love Dogs Too Much
Wednesday's opinion in Davidson v. State, by Texas Court of Appeals (Tyler) Chief Justice James Worthen joined by Justice Brian Hoyle, upholds the stalking conviction of animal rights activist Davidson for actions targeting Hicks.
Hicks owned dogs, and was also a "county extension agent [for Texas A&M]," whose job "entails advocating for agriculture, and his job duties include engaging with the public and encouraging members of the public regarding best agricultural practices, such as caring for animals. Davidson thought Hicks' dogs lacked adequate shelter in a severe winter storm, so she complained to the local police department. The department checked on the dogs several times, concluded that all was well, concluded Hicks wasn't violating the law, and "informed Appellant that Hicks was providing the dogs with adequate shelter."
But Davidson was apparently unsatisfied. She posted items on Facebook and sent private messages "comments, and private messages." She also apparently "drove past Hicks's residence and took photographs," as did other people. The police got 20 calls about Hicks, most apparently not from Davidson. "Hicks reported receiving an anonymous package in the mail that 'was a glitter bomb, like a prank package[ ]' that contained penis-shaped confetti and a card that said, 'you have a small penis.'" "Hicks told Smith that 'people were trying to contact his employer trying to get him fired.'"
During this time, someone stole Hicks' dogs. "Appellant was not the perpetrator, and the perpetrator did not mention Appellant's name when police interviewed him," but Appellant praised the thefts in a Facebook post, and "stated that someone saw over 3,000 shares of her Facebook post, drove to Crockett, and stole Hicks's four dogs from his yard." There were more incidents as well; see the (long) opinion for more details.
Davidson was convicted of stalking; "the trial judge assessed punishment at ten years of imprisonment, but suspended imposition of sentence and placed Appellant on community supervision for ten years." The relevant part of the stalking statute, as limited by the indictment (with some oversimplification by me), made it a crime to
on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engage[] in conduct that:
(1) … the actor knows or reasonably should know the other person will regard as threatening … that an offense will be committed against the other person's property;
(2 [& 3]) causes the other person [or] a member of the other person's family or household … to be [reasonably] placed … in fear that an offense will be committed against the other person's property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended ….
The appellate court, among other things, rejected Davidson's as-applied First Amendment challenge to the conviction. It didn't rely on the "true threats" First Amendment exception, perhaps because the relevant part of the statute didn't call for a showing of recklessly threatening speech (as the Supreme Court required in Counterman v. Colorado (2023)), but instead upheld the conviction on the grounds that "Even if a statute is content based, the legislature may regulate speech if it invades substantial privacy rights in an essentially intolerable manner":
[E]ven after the Chief of Police informed Appellant in February 2021 that Hicks's dogs had adequate shelter, told her that Hicks was not violating any laws, and advised her to leave Hicks alone, Appellant continued to (1) drive by Hicks's home while recording video and taking photographs, (2) disseminate Hicks's home address to others, (3) encourage others to drive by Hicks's home, (4) contact law enforcement regarding Hicks's dogs, and (5) encourage others to contact law enforcement. Hicks and [his wife] testified that they felt threatened, alarmed, and annoyed by Appellant driving past their home and taking photographs or video, their children were afraid, the family's sleeping patterns were affected, they worried that something might be taken from their property, and their dogs were stolen from their home.
We conclude that … (1) Hicks and his family were a captive audience in their home, (2) Hicks and his family could not avoid Appellant's conduct, and (3) Appellant's conduct invaded Hicks's substantial privacy interests in an essentially intolerable manner…. "[T]he right to avoid unwelcome speech has special force in the privacy of the home[.] " … Furthermore, … some of the conduct with which Appellant was charged, such as repeatedly driving by Hicks's home, does not implicate the First Amendment because it is nonspeech conduct…. [And] Appellant's continued, repeated conduct after being informed in February 2021 that Hicks was not violating any laws and his dogs had adequate shelter … removes her actions from protection under the First Amendment ….
We agree with the broad proposition that the First Amendment protects the right to report and to document potentially criminal conduct, as well as to encourage others to do so. However, because Appellant learned in February 2021 that criminal charges against Hicks were unwarranted, we conclude that the First Amendment does not protect her subsequent conduct. Lastly, we conclude that, to the extent the stalking statute as applied to Appellant included some constitutionally protected speech, the legislature's compelling interest in protecting citizens from the invasion of their substantial rights to privacy in their homes in an essentially intolerable manner justified incidental limitations on Appellant's First Amendment freedoms….
