Petition for Writ of Certiorari — Charles Barton, Petitioner v. Texas

Supreme Court briefNov 4, 2022

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No. 22-___

In the

CHARLES BARTON and NATHAN SANDERS,

Petitioners,

STATE OF TEXAS,

Respondent.

On Petition for Writ of Certiorari to the

Court of Criminal Appeals of Texas

JOINT PETITION FOR WRIT OF CERTIORARI

Edward G. Jones

Tobias Xavier Lopez

1319 Ballinger Street

Fort Worth, Texas 76102

Lane A. Haygood

3800 E. 42nd Street

Suite 110

Odessa, Texas 79762

Rusty Gunter

1213 Avenue K

Lubbock, Texas 79401

Mark W. Bennett

917 Franklin Street

Fourth Floor

Houston, Texas 77002

David A. Schulz

Counsel of Record

Stephen Stich

Kelsey Eberly

Rachel Davidson

MEDIA FREEDOM AND

INFORMATION ACCESS

CLINIC

ABRAMS INSTITUTE

YALE LAW SCHOOL

127 Wall Street

New Haven, CT 06511

(203) 436-5827

david.schulz@yale.edu

QUESTIONS PRESENTED

In Snyder v. Phelps, this Court held that speech on

matters of public concern cannot be punished “simply

because it is upsetting or arouses contempt,” even

when the speaker intends to annoy, harass or alarm.

562 U.S. 443, 458 (2011). Many other decisions of this

Court hold the same.

The Texas Court of Criminal Appeals nonetheless

held that a criminal prohibition in Texas Penal Code

§ 42.07(a)(7) against “electronic communications”

repeatedly sent with the intent and likely result to

“harass, annoy, alarm, abuse, torment, embarrass, or

offend” the recipient punishes “conduct,” does not

implicate the First Amendment, and is not subject to

any overbreadth analysis, even though the court

construed the law as applying to “expressive speech”

sent with an “intent to engage in the legitimate

communication of ideas.”

The questions presented are:

1. Does the criminalization of expressive electronic

communications in Texas Penal Code § 42.07(a)(7)

implicate the First Amendment?

Texas

Penal

Code

unconstitutionally overbroad?

§ 42.07(a)(7)

PARTIES TO THE PROCEEDING

Petitioners Charles Barton and Nathan Sanders

petition jointly from separate judgments issued by the

Court of Criminal Appeals of Texas.

Barton was the applicant for a writ of habeas

corpus in the Tarrant County, Texas, County

Criminal Court No. 8, the appellant at the Second

Court of Appeals of Texas, and the respondent at the

Court of Criminal Appeals. Respondent State of Texas

opposed Barton’s habeas application in the county

court, was the appellee at the Second Court of

Appeals, and was the petitioner at the Court of

Criminal Appeals.

Sanders was the applicant for a writ of habeas

corpus in the Lubbock County, Texas, County

Criminal Court No. 1, the appellant in the Seventh

Court of Appeals of Texas, and the petitioner at the

Court of Criminal Appeals. Respondent State of Texas

opposed Sanders’s habeas application in the county

court, was the appellee at the Seventh Court of

Appeals, and was the respondent at the Court of

Criminal Appeals.

RELATED PROCEEDINGS

Court of Criminal Appeals of Texas:

Ex Parte Barton, No. PD-1123-19, (Tex. Crim.

App. Apr. 6, 2022) (to be reported at --- S.W.3d

---; available at 2022 WL 1021061);

Ex Parte Sanders, No. PD-0469-19 (Apr. 6,

2022) (to be reported at --- S.W.3d ---; available

at 2022 WL 1021055).

iii

Second Court of Appeals of Texas:

Ex Parte Barton, No. 02-17-00188-CR, (Tex.

App. Oct. 3, 2019) (reported at 586 S.W.3d

573);

Ex Parte Barton, No. 02-17-00188-CR, (Tex.

App. Aug. 8, 2019) (withdrawn and superseded

on denial of rehearing).

Seventh Court of Appeals of Texas:

Ex Parte Sanders, No. 07-18-00335-CR (Apr. 8,

2019) (unpublished; available at 2019 WL

1576076).

Tarrant County Criminal Court No. 8, Tarrant

County, Texas:

State v. Barton, No. 1314404, Rec. Doc. No. 63

(May 18, 2017) (unpublished) (order denying

application for writ of habeas corpus).

Lubbock County Criminal Court No. 1, Lubbock

County, Texas:

State v. Sanders, No. 2015-484,541, Rec. Doc.

No. 94 (Aug. 20, 2018) (unpublished) (order

denying application for writ of habeas corpus

and motion to quash information).

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING ........................... ii

RELATED PROCEEDINGS ...................................... ii

TABLE OF CONTENTS ............................................iv

TABLE OF AUTHORITIES .................................... viii

INTRODUCTION ........................................................1

OPINIONS AND ORDERS BELOW ..........................3

JURISDICTION ..........................................................4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .........................................5

STATEMENT OF THE CASE ....................................6

A. Trial Courts Deny Petitioners’ Facial Challenges

to § 42.07(a)(7) .......................................................6

B. Intermediate Appellate Courts Disagree on the

Constitutionality of § 42.07(a)(7) ..........................7

C. A Closely Divided Court of Criminal Appeals

Holds that the Law’s Prohibition of “Expressive

Speech” Is Not Subject to First Amendment

Scrutiny ..................................................................9

REASONS FOR GRANTING THE WRIT ................13

I. THE TEXAS COURT’S HOLDINGS DEFY THIS

COURT’S FIRST AMENDMENT PRECEDENTS

IN MULTIPLE RESPECTS ................................13

This Court Has Squarely Rejected Each of the

Texas Court’s Rationales for Refusing to Apply

First Amendment Scrutiny to § 42.07(a)(7) ...13

1. This Court has rejected the proposition

that online speech made with a disfavored

intent does not implicate the First

Amendment ...............................................14

2. This Court has rejected the proposition

that a law restricting speech does not

implicate the First Amendment if it can be

violated without communicating

anything……………………………………...18

3. This Court has rejected the proposition

that a law imposing sanctions based on the

content of a communication does not

implicate the First Amendment ...............21

The Texas Court’s Refusal to Apply First

Amendment Scrutiny Upholds a Law that

Cannot Survive an Overbreadth Analysis

Under this Court’s Precedent.........................22

II. COURTS ARE DEEPLY SPLIT ON THE

PROPER APPLICATION OF THE FIRST

AMENDMENT TO LAWS CRIMINALIZING

ELECTRONIC COMMUNICATIONS SENT

WITH A DISFAVORED INTENT .......................26

A Minority of Courts Hold that Laws

Criminalizing Electronic or Telephonic

Communications Made with a Disfavored

Intent Raise No First Amendment Issue.......27

Most Courts Hold the Opposite, but Not All

Have Granted Relief Under the Overbreadth

Doctrine ...........................................................29

III. THE BREADTH OF A STATE’S ABILITY TO

PUNISH ONLINE SPEECH PRESENTS AN

IMPORTANT QUESTION OF FEDERAL LAW 33

CONCLUSION ..........................................................37

APPENDIX A: Texas Court of Criminal Appeals

Judgment, Barton (April 6, 2022) .............................1a

APPENDIX B: Texas Court of Criminal Appeals

Judgment, Sanders (April 6, 2022) .........................29a

APPENDIX C: Texas Court of Appeals Second

District Judgment, Barton (Oct. 3, 2019) ...............65a

APPENDIX D: Texas Court of Appeals Seventh

District Judgment, Sanders (April 9, 2019) ...........87a

APPENDIX E: Transcript of Trial Court Ruling on

Motion to Quash, Barton (Feb. 13, 2017) ...............98a

APPENDIX F: Trial Court Order on Writ of Habeas

Corpus, Barton (May 18, 2017) ............................. 101a

APPENDIX G: Trial Court Order on Writ of Habeas

Corpus and Motion to Quash, Sanders (August 20,

2018) ......................................................................102a

APPENDIX H: Texas Court of Criminal Appeals

Rehearing Denial, Barton (June 8, 2022)............. 105a

APPENDIX I: Texas Court of Criminal Appeals

Rehearing Denial, Sanders (June 29, 2022)......... 106a

APPENDIX J: Motion to Quash, Barton (Oct. 2016)

................................................................................ 107a

APPENDIX K: Application for Writ of Habeas

Corpus, Barton (April 12, 2017)............................ 111a

vii

APPENDIX L: Application for Writ of Habeas Corpus

and Motion to Quash, Sanders (July 13, 2018) .... 118a

APPENDIX M: Information, Barton (Feb. 11, 2013)

................................................................................ 132a

APPENDIX N: Information, Sanders (May 5, 2015)

................................................................................ 136a

viii

TABLE OF AUTHORITIES

Cases

Arcara v. Cloud Books, Inc.,

478 U.S. 697 (1986) ................................................20

Ashcroft v. ACLU,

542 U.S. 656 (2004) ................................................17

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010) ................................................37

City of Dallas v. Stanglin,

490 U.S. 19 (1989) ....................................................9

City of Houston v. Hill,

482 U.S. 451 (1987) ..........................................18, 25

Cohen v. California,

403 U.S. 15 (1971) ..................................................15

Commonwealth v. Hendrickson,

724 A.2d 315 (Pa. 1999) .........................................29

Ex parte Weise,

55 S.W.3d 617 (Tex. Crim. App. 2001) ....................7

Gooding v. Wilson,

405 U.S. 518 (1972) ..........................................22, 23

Gormley v. Director,

632 F.2d 938 (2d Cir. 1980) ...................................28

Hill v. City of Houston,

789 F.2d 1103 (5th Cir. 1986)................................19

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) ....................................................19

Hustler Magazine, Inc. v. Falwell,

485 U.S. 46 (1988) ........................................ 2, 15, 35

Matter of Welfare of A.J.B.,

929 N.W.2d 840 (Minn. 2019).......................... 30, 31

McCullen v. Coakley,

573 U.S. 464 (2014) ................................................19

Miami Herald Pub. Co. v. Tornillo,

418 U.S. 241 (1974) ................................................26

N.Y. Times v. Sullivan,

376 U.S. 254 (1964) ................................................35

NetChoice v. Paxton,

142 S. Ct. 1715 (2022)............................................34

Nev. Comm’n on Ethics v. Carrigan,

564 U.S. 117 (2011) ................................................20

Packingham v. North Carolina,

137 S. Ct. 1730 (2017).................................. 3, 17, 27

People v. Golb,

15 N.E.3d 805 (N.Y. 2014) .....................................31

People v. Moreno,

506 P.3d 849 (Colo. 2022) ......................................31

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) ..........................................15, 16

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ................................................22

Reno v. ACLU,

521 U.S. 844 (1997) ...................................... 3, 17, 27

Rumsfeld v. Forum for Acad. & Inst. Rts., Inc.,

547 U.S. 47 (2006) ..................................................20

Saxe v. State College Area Sch. Dist.,

240 F.3d 200 (3d Cir. 2001) ...................................13

Scott v. State,

322 S.W.3d 662 (Tex. Crim. App. 2010) 8, 21, 23, 31

Snyder v. Phelps,

562 U.S. 443, (2011) ....................................... passim

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) ................................................22

State v. Calvert,

No. 15-0195, 2016 WL 3179968 (W. Va. June 3,

2016) .......................................................................27

State v. Dugan,

303 P.3d 755 (Mont. 2013). ....................................33

State v. Thorne,

333 S.E.2d 817 (W. Va. 1985) .......................... 27, 29

Thorne v. Bailey,

846 F.2d 241 (4th Cir. 1988)..................................27

Thornhill v. Alabama,

310 U.S. 88 (1940) ..................................................36

United States v. Ackell,

907 F.3d 67 (1st Cir. 2018) ....................................32

United States v. Fleury,

20 F.4th 1353 (11th Cir. 2021) ..............................32

United States v. O’Brien,

391 U.S. 367 (1968) ................................................19

United States v. Osinger,

753 F.3d 939 (9th Cir. 2014)..................................28

United States v. Sryniawski,

48 F.4th 583 (8th Cir. 2022) ..................................32

United States v. Stevens,

559 U.S. 460 (2010) ................................ 2, 22, 23, 25

United States v. Waggy,

936 F.3d 1014 (9th Cir. 2019)................................29

United States v. Weiss,

No. 20-10283, 2021 WL 6116629 (9th Cir. Dec. 27,

2021) .................................................................29, 30

United States v. Yung,

37 F.4th 70 (3d Cir. 2022)................................ 30, 32

Virginia v. Hicks,

539 U.S. 113 (2003) ................................................20

Watts v. United States,

394 U.S. 705 (1969) ................................................29

Statutes

18 U.S.C. § 2261A(2) .................................................32

18 U.S.C. § 2261A(2)(A) ............................................30

18 U.S.C. § 2261A(2)(A) (2006) .................................28

28 U.S.C. § 1257(a) ......................................................5

47 U.S.C. § 223(a)(1)(C) ............................................29

Mont. Code. Ann. § 45–8–13(1)(a) ............................33

Tex. Penal Code § 42.07(a) ..........................................8

Tex. Penal Code § 42.07(a)(4) .....................................8

Tex. Penal Code § 42.07(a)(7)…………………...passim

Tex. Penal Code § 42.07(b)(1) .....................................6

Other Authorities

Andrew Perrin & Sara Atske, About 3 in 10 U.S.

Adults Say They Are ‘Almost Constantly’ Online,

Pew Research Center (Mar. 26, 2021),

https://www.pewresearch.org/facttank/2021/03/26/about-three-in-ten-u-s-adults-saythey-are-almost-constantly-online ........................34

Dui Hua Hum. Rts. J., Deeming Free Speech Disorder

in Internet Space (Mar. 5, 2015),

https://www.duihuahrjournal.org/2015/03/article293-deeming-free-speech.html ..............................36

Hum. Rts. Watch, Uganda: Ensure Justice for

Detained, Tortured Author, (Feb. 11, 2022),

https://www.hrw.org/news/2022/02/11/ugandaensure-justice-detained-tortured-author; ABA,

Trial Observation Report: Uganda vs. Stella

Nyanzi (Feb. 16, 2020),

xii

https://www.americanbar.org/groups/human_right

s/reports/fairnessreport_uganda_stella_nyanzi. ..36

Khadeeja Safdar, Churches Target New Members,

With Help From Big Data, Wall Street Journal

(Dec. 26, 2021),

https://www.wsj.com/articles/churches-newmembers-personal-online-data-analytics-gloo11640310982 ..........................................................35

Luke 18:1-5 ................................................................12

Reuters, Russia's Putin Signs Law Banning Fake

News, Insulting the State Online (Mar. 18, 2019),

https://www.reuters.com/article/us-russia-politicsfakenews/russias-putin-signs-law-banning-fakenews-insulting-the-state-online-idUSKCN1QZ1TZ;

The Moscow Times, Most Russians Charged for

'Disrespecting' Authorities Insulted Putin – Rights

Group (Sept. 30, 2019),

https://www.themoscowtimes.com/2019/09/30/most

-russians-charged-for-disrespecting-authoritiesinsulted-putin-study-a67504. ................................37

Sam Bestvater et al., Politics on Twitter: One-Third

of Tweets From U.S. Adults Are Political, Pew

Research Center (June 16, 2022),

https://www.pewresearch.org/politics/2022/06/16/po

litics-on-twitter-one-third-of-tweets-from-u-sadults-are-political.................................................34

Shira Ovide, How Social Media Has Changed Civil

Rights Protests, N.Y. Times (Dec. 17, 2020),

https://www.nytimes.com/2020/06/18/technology/so

cial-media-protests.html........................................35

xiii

Travis Ridout et al., Spending Fast and Furious:

Political Advertising in 2020, 18 The Forum 465

(2021), https://doi.org/10.1515/for-2020-2109 .......34

Webster’s Ninth New Collegiate Dictionary (1988) ..23

Constitutional Provisions

U.S. Const. amend. I ...................................................5

U.S. Const. amend. XIV ..............................................5

INTRODUCTION

A 5-4 majority of the Texas Court of Criminal

Appeals held that a law punishing “electronic

communications” repeatedly sent with the intent to

“harass, annoy, alarm, abuse, torment, or embarrass”

is a regulation of conduct, “not speech,” and does not

implicate the First Amendment. App.44a. Even

though the court construed the law to apply to the

repeated sending of expressive communications with

the “intent to engage in the legitimate communication

of ideas,” the court found no First Amendment issue

presented and refused to conduct an overbreadth

analysis. App.11a-12a; App.17a; App.61a.

A speaker’s disfavored intent does not

categorically remove speech from the First

Amendment’s reach: this Court has held that the First

Amendment protects intentionally harassing protests

funerals,

alarming

cross-burning,

and

embarrassing satire. Yet the Texas court found no

First Amendment analysis warranted for a law that

criminalizes intentionally harassing, alarming or

embarrassing electronic communications because a

person could violate the law by repeatedly sending

emails, text messages, and the like with no

communicative

content.

This

conclusion

confounding and concerning.

The Texas law does not primarily punish conduct;

it punishes speech. It does so primarily based on the

content of a communication, which will typically

determine whether a message is alarming,

embarrassing, or in any of the other proscribed

categories. And the law, as construed by the Texas

court, encompasses communications made with the

intent to engage in the “legitimate communication of

ideas.” App.11a-12a. So construed, the law necessarily

triggers First Amendment scrutiny under this Court’s

precedent. See, e.g., Snyder v. Phelps, 562 U.S. 443,

451-52 (2011); Hustler Magazine, Inc. v. Falwell, 485

U.S. 46, 50 (1988).

The law not only implicates the First Amendment,

it plainly violates this Court’s overbreadth doctrine.

While Petitioners brought a facial overbreadth

challenge, the Texas court refused to take it up after

finding no First Amendment question presented. Yet

the court construed the law definitively and there is

no question that “a substantial number of its

applications are unconstitutional, judged in relation

to the statute’s plainly legitimate sweep.” United

States v. Stevens, 559 U.S. 460, 473 (2010).

Allowing such a broad law to stand would open a

Pandora’s box of unreviewable First Amendment

harms, including self-censorship and discriminatory

enforcement against unpopular groups and speech.

Core First Amendment activity like political advocacy

and religious preaching is now vulnerable to

prosecution in Texas whenever it is done online.

Whether or not the authorities often prosecute such

speech, the chill is real. The First Amendment cannot

tolerate such an outcome.

Troublingly, the Court of Criminal Appeals is not

alone in its confusion over the proper application of

First Amendment precedent to online speech. While

most state courts of last resort and federal courts of

appeal apply First Amendment scrutiny to laws

criminalizing online communications made with some

disfavored intent, a number of courts, like the Court

of Criminal Appeals, do not. And even those courts

that recognize the First Amendment issue presented

by online harassment laws do not agree on a proper

overbreadth analysis. This confusion over basic First

Amendment principles in cyberspace warrants review

by this Court.

Twenty-five years ago in Reno v. ACLU, the Court

noted the Internet’s “extraordinary growth.” 521 U.S.

844, 850 (1997). That growth has since been

exponential. Today, most Americans use the Internet

every day to talk politics and religion, coordinate their

families’ daily affairs, and connect with friends. It is

“the most important place[] . . . for the exchange of

views,” including views on matters of public concern.

Packingham v. North Carolina, 137 S. Ct. 1730, 1735

(2017). Like all speech, online speech is sometimes

annoying, embarrassing, alarming, or otherwise

unpleasant—and often intentionally so. Criminal

penalties for unwelcome speech will inhibit robust

dialogue on our primary means of communication.

The issue presented is of exceptional significance, and

the Court should grant certiorari.

OPINIONS AND ORDERS BELOW

The Texas Court of Criminal Appeals’ opinion in

Ex Parte Barton is available at --- S.W.3d ---, No. PD1123-19, 2022 WL 1021061 (Tex. Crim. App. Apr. 6,

2022). The opinion of the Texas Court of Appeals, Fort

Worth, in Ex Parte Barton is available at 586 S.W.3d

573 (Tex. App. 2019). The May 18, 2017 order of the

Tarrant County Criminal Court No. 8, denying

Barton’s application for habeas corpus is unpublished.

The Texas Court of Criminal Appeals opinion in Ex

Parte Sanders is available at --- S.W.3d ---, No. PD0469-19, 2022 WL 1021055 (Tex. Crim. App. Apr. 6,

2022). The opinion of the Texas Court of Appeals,

Amarillo, in Ex Parte Sanders is unpublished and is

available at 2019 WL 1576076 (Tex. App. Apr. 8,

2019). The August 20, 2018 order of the Lubbock

County Criminal Court No. 1, denying Sanders’s

application for habeas corpus is unpublished.

JURISDICTION

The Texas Court of Criminal Appeals issued its

opinion in each Petitioner’s case on April 6, 2022.

App.17a; App.61a. The Court of Criminal Appeals

denied Barton’s timely petition for rehearing on June

2, 2022, and denied Sanders’ timely petition for

rehearing on June 29, 2022. App.105a; App.106a. On

August 18, 2022 and September 8, 2022, Justice Alito

granted applications extending each Petitioner’s time

to file a petition for writ of certiorari to and including

October 6, 2022. See Barton v. Texas, No. 22A138

(Sup. Ct. Aug. 18, 2022); Sanders v. Texas, No. 22A207

(Sup. Ct. Sept. 8, 2022). On September 28, 2022,

Justice Alito granted applications further extending

each Petitioner’s time to file a petition for writ of

certiorari to and including November 4, 2022. See

Barton v. Texas, No. 22A138 (Sup. Ct. Sept. 28, 2022);

Sanders v. Texas, No. 22A207 (Sup. Ct. Sept. 28,

2022).

This Court has jurisdiction under 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States

Constitution provides: “Congress shall make no law

respecting an establishment of religion, or prohibiting

the free exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.”

The Fourteenth Amendment to the United States

Constitution provides in pertinent part: “No state

shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life,

liberty, or property, without due process of law.”

Texas Penal Code § 42.07(a)(7) states in relevant

part:

(a) A person commits an offense if, with intent

to harass, annoy, alarm, abuse, torment, or

embarrass another, the person:

...

(7) sends repeated electronic communications

in a manner reasonably likely to harass, annoy,

alarm, abuse, torment, embarrass, or offend

another.

STATEMENT OF THE CASE

A. Trial Courts Deny Petitioners’ Facial

Challenges to § 42.07(a)(7)

Petitioners Charles Barton and Nathan Sanders

were each charged by information with violating

Texas Penal Code § 42.07(a)(7). A person violates this

law by sending repeated “electronic communications”

with an “intent to harass, annoy, alarm, abuse,

torment, or embarrass another” and with the

reasonable likelihood of having the intended effect, or

of simply “offend[ing].” Id. The law defines an

“electronic communication” broadly to include any

writing, images, sounds, data or “intelligence of any

nature” that is “transmitted in whole or in part by a

wire, radio, electromagnetic, photoelectronic, or

photo-optical system.” Id. § 42.07(b)(1). This

definition includes communications made through

“electronic mail, instant message, . . . text message, a

social media platform or application, an Internet

website, [or] any other Internet-based communication

tool.” Id.

Petitioners’ charges are not related: Barton was

charged in Tarrant County for acts allegedly

committed in 2012; Sanders was charged in Lubbock

County for acts allegedly committed in 2015.

App.132a; App.136a. Neither information identified

the content of the alleged electronic communications,

specifying only the date, recipient, and type of

communication. Barton was alleged to have sent “text

message or email communications,” App.132a;

Sanders was charged with “telephone calls, text

messages, social media messages, handwritten

letters, and in person communication,” App.136a.

Each Petitioner moved to quash the information

and applied for a pre-trial writ of habeas corpus.1

Barton’s motion to quash challenged § 42.07(a)(7) as

“facially unconstitutional” because it is “overly broad

and chills the protected speech of the First

Amendment.” App.108a. His habeas application

raised the same facial constitutional challenge.

App.111a-112a. Sanders sought both forms of relief

simultaneously and also challenged the statute as

“substantially overbroad” and thus facially “invalid

under the First Amendment.” App.121a-122a.

Both trial courts denied Petitioners’ motions to

quash and habeas applications. App.99a; App.101a;

App.104a.

B. Intermediate Appellate Courts Disagree

on the Constitutionality of § 42.07(a)(7)

Barton and Sanders appealed the denials of

habeas corpus to the Texas Courts of Appeals for the

Second and Seventh Districts, respectively. The

courts issued conflicting decisions.

The Second District unanimously reversed. It

rejected Respondent’s argument that Barton had

waived his overbreadth challenge and found the

challenge meritorious. The court held that

1 In Texas, criminal defendants may, by pre-trial applications

for habeas corpus, raise facial constitutional challenges to

statutes under which they are charged. See Ex parte Weise, 55

S.W.3d 617, 620 (Tex. Crim. App. 2001).

§ 42.07(a)(7) “affects protected speech” because it is

possible to violate the law while “inten[ding] to engage

in the legitimate communication of ideas, opinions,

information, or grievances.” App.74a-75a. By way of

example, the court noted that a parent could violate

the law by sending “repeated text messages to [a]

teenage child asking the teenager to mow the lawn.”

App.74a n.12. Because § 42.07(a)(7) “has the potential

to reach a vast array of communications,” the court

struck it down as “vague and overbroad,” and

dismissed Barton’s prosecution. App.83a; App.86a.

The Seventh District held to the contrary and

affirmed. The majority held that the repeated

electronic communications proscribed by § 42.07(a)(7)

“are not protected speech under the First Amendment

because they invade the substantial privacy interests

of the victim ‘in an essentially intolerable manner.’”

App.97a (quoting Scott v. State, 322 S.W.3d 662, 670

(Tex. Crim. App. 2010)). This ruling was based on the

Court of Criminal Appeals’ decision in Scott upholding

the Texas telephonic harassment law, Tex. Penal

Code § 42.07(a)(4), which criminalizes repeated phone

calls made with the same intent and likely effect as

required by § 42.07(a)(7). Because both laws “require

for guilt that the repeated communications occur ‘in a

manner reasonably likely to harass, annoy, alarm,

abuse, torment, embarrass or offend another,’” the

Seventh District followed Scott. App.92a (quoting Tex.

Penal Code § 42.07(a)). The court held that

§ 42.07(a)(7) does not violate the First Amendment

and upheld the statute without conducting an

overbreadth analysis.

Chief Justice Quinn concurred that upholding

§ 42.07(a)(7) was dictated by Scott, but “invite[d] the

Court of Criminal Appeals to reconsider the majority

opinion in Scott” due to his “fears” that it created the

potential for criminal convictions resulting from “one’s

exercise of First Amendment rights.” App.97a n.6.

C. A Closely Divided Court of Criminal

Appeals Holds that the Law’s Prohibition

of “Expressive Speech” Is Not Subject to

First Amendment Scrutiny

The Court of Criminal Appeals granted petitions

for discretionary review in both cases. By a 5-to-4 vote,

it reversed in Barton and affirmed in Sanders on the

ground that the intentional conduct proscribed by

§ 42.07(a)(7) does not implicate the First Amendment

and is thus not susceptible to a facial overbreadth

challenge. App.4a; App. 17a; App.61a.

The five-judge majority based its holding on the

fact that § 42.07(a)(7) uses the same language to

define the proscribed conduct as used in the telephone

harassment law, and Scott held that the conduct

proscribed by the telephone harassment law “is not

speech.” App.44a. The majority reasoned that “[i]t is

possible to find some kernel of expression in almost

every activity a person undertakes—for example,

walking down the street or meeting one’s friends at a

shopping mall—but such a kernel is not sufficient to

bring the activity within the protection of the First

Amendment.” App.47a (quoting City of Dallas v.

Stanglin, 490 U.S. 19, 25 (1989)).

The majority acknowledged that § 42.07(a)(7) on

its face applies to “traditional categories of

communication” such as “a writing, an image, and a

sound,” App.59a, but found this irrelevant. According

to the majority, laws like § 42.07(a)(7) do not implicate

the First Amendment, even when applied to

expressive activities undertaken with an “intent to

engage in the legitimate communication of ideas,” if a

disfavored intent is also required, for example, the

intent to “annoy” or “alarm” required by § 42.07(a)(7).

App.12a. In the majority’s view, an intent to

communicate “does not convert non-expressive

conduct into expressive conduct.” App.12a. The

majority also noted that one could violate the statute

without expressing anything, “by the repeated

sending of communications containing no speech at

all,” or sending “computer code . . . entirely

indecipherable and meaningless to humans.”

App.59a; App.60a. It thus refused to apply any First

Amendment scrutiny because “[t]he statute is equally

violated by the repeated sending of communications

containing expressive speech as it is by the repeated

sending of communications containing no speech at

all.” App.59a.

The majority acknowledged the principle that a

law regulating “speech in a category traditionally

outside the protection of the First Amendment

nevertheless still implicates the First Amendment,”

but found this principle inapplicable given its

conclusion that the conduct regulated by § 42.07(a)(7)

“is noncommunicative.” App.44a. The majority thus

declined to undertake any First Amendment scrutiny

because § 42.07(a)(7) addresses “non-speech conduct

that does not implicate the First Amendment.”

App.14a.

Four judges dissented. Writing for herself and

Judge Keel,2 Presiding Judge Keller disputed the

majority’s conclusion that the statute does not

regulate speech, noting that “[t]he term ‘electronic

communications’ alone suggests that the regulated

conduct is speech” and that the statutory definition of

that term “makes it clear that the regulated conduct

is indeed speech.” App.21a. The dissent agreed that

the First Amendment does not protect every act that

has a kernel of expressive activity, but found this

observation irrelevant to § 42.07(a)(7), a law

specifically “concerned with communications” and in

particular the “inherently communicative aspect of

electronic communications.” App.23a (emphasis in

original).

The dissenters also took issue with the majority’s

observation that one could violate the statute without

communicating anything, such as by sending “data

[that] could be meaningless.” App.24a. These

possibilities do not negate the First Amendment

entirely, the dissent objected, but instead are properly

part of an assessment of whether the law “reaches a

substantial amount of First Amendment conduct in

relation to its legitimate sweep,” rendering it

overbroad. App.24a.

2 Judges Slaughter and McClure dissented without opinion.

The dissent next underscored the “truly enormous

amount of speech” encompassed by § 42.07(a)(7).

App.25a. It observed that the law’s intent

requirement does not limit its broad application to

First Amendment protected speech because alarming,

annoying, or embarrassing someone “could be the

point of the communication.” App.25a-26a. The

dissent provided several examples of such speech

subject to potential prosecution under § 42.07(a)(7):



A citizen could intend to “alarm” others by

drawing attention to a devastating judicial

decision. Presiding Judge Keller noted that her

own dissenting opinion could be a crime.

App.20a.



As in the Bible’s parable of the persistent

widow, a citizen could repeatedly petition an

unjust judge to “annoy” them into granting

relief. App.26a (citing Luke 18:1-5).



A journalist could intend to “embarrass” a

politician by repeatedly exposing their

indiscretions, as in Andrew Breitbart’s

coverage of Anthony Weiner. App.26a.

Given their conclusion that § 42.07(a)(7)

implicates the First Amendment, the dissent

proceeded to conduct the overbreadth analysis that

the majority found unwarranted. Because the statute

“punishes a substantial amount of protected speech in

relation to its legitimate sweep,” the dissenters would

declare the law unconstitutional on its face. App.28a.

Both Petitioners timely moved for rehearing. The

court denied both petitions over Presiding Judge

Keller’s dissent. App.105a; App.106a.

REASONS FOR GRANTING THE WRIT

I. THE TEXAS COURT’S HOLDINGS DEFY

THIS

COURT’S

FIRST

AMENDMENT

PRECEDENTS IN MULTIPLE RESPECTS

The Court of Criminal Appeals held that a law

criminalizing the repeated sending of electronic

communications with the intent and likely effect “to

harass, annoy, alarm, abuse, torment, or embarrass”

the recipient does not implicate the First Amendment.

Tex. Penal Code § 42.07(a)(7). This holding, and the

court’s refusal to entertain a facial overbreadth

challenge, directly contradict this Court’s First

Amendment precedents in multiple respects.

Simply put, “[t]here is no categorical ‘harassment

exception’ to the First Amendment’s free speech

clause.” Saxe v. State College Area Sch. Dist., 240 F.3d

200, 204 (3d Cir. 2001) (Alito, J.). The Court should

grant certiorari because the holding and rationale of

the Texas rulings defy this Court’s precedents.

This Court Has Squarely Rejected Each of

the Texas Court’s Rationales for Refusing

to Apply First Amendment Scrutiny to §

42.07(a)(7)

The Texas court offered three reasons for declining

to subject § 42.07(a)(7) to First Amendment scrutiny.

Each contradicts holdings of this Court defining the

proper scope and application of the First Amendment.

1. This Court has rejected the proposition

that online speech made with a

disfavored intent does not implicate

the First Amendment

In refusing to apply First Amendment scrutiny to

§ 42.07(a)(7), the Court of Criminal Appeals rejected

the fundamental principles that laws criminalizing

expressive communications are subject to First

Amendment scrutiny, even if they only punish speech

made with a disfavored intent, and that online speech

is not exempt from this First Amendment scrutiny.

The Texas court recognized that § 42.07(a)(7) on its

face applies to electronic communications made with

the “intent to engage in the legitimate communication

of ideas.” App.12a. It nevertheless found the First

Amendment inapplicable because the law requires a

communication to be sent with a disfavored intent,

specifically an intent to “harass, annoy, alarm, abuse,

torment, or embarrass.” The requirement of a

disfavored intent, the court held, means that

§ 42.07(a)(7) “does not implicate the First

Amendment,” even if the speech sent with a

disfavored intent concerns a public figure or a matter

of public concern. App.14a.

The Texas court’s holding squarely contradicts

decades of this Court’s precedents requiring First

Amendment scrutiny of laws punishing speech made

with a disfavored intent.

More than fifty years ago, in Cohen v. California,

the Court held a statute prohibiting “maliciously and

willfully disturb[ing] the peace or quiet of any

neighborhood or person . . . by . . . offensive conduct”

unconstitutional as applied to the defendant, who

wore a jacket saying “Fuck the Draft” in a courtroom.

403 U.S. 15, 16, 26 (1971). The First Amendment

applied to Cohen’s expression, even if the message

was “maliciously and willfully” conveyed with an

intent to disturb the peace.

In Hustler Magazine, Inc. v. Falwell, the Court

considered a First Amendment challenge to a tort

action brought against a publisher for its intentionally

offensive parody of a famous minister’s sex life. 485

U.S. 46, 50 (1988). The Court unanimously held that

a public figure cannot prevail in an intentional

infliction of emotional distress claim absent a showing

of actual malice. Id. at 56. Falwell rejects the

proposition that a communication made with an

intent to inflict emotional distress is exempt from any

First Amendment scrutiny. “[W]hile such a bad

motive may be deemed controlling for purposes of tort

liability in other areas of the law . . . the First

Amendment prohibits such a result in the area of

public debate about public figures.” Id. at 53.

In R.A.V. v. City of St. Paul, the Court applied

First Amendment scrutiny to a law banning crossburning, even though it applied only if the action was

intended or likely to arouse “anger, alarm or

resentment”—construed as fighting words—“on the

basis of race, color, creed, religion or gender.” 505 U.S.

377, 380 (1992). The intent requirement did not

preclude First Amendment review, and the law was

facially unconstitutional because it made the

prohibited speech a “vehicle[] for content

discrimination unrelated to” the reason the speech

was proscribed. Id. at 383-84, 391.

Again, in Snyder v. Phelps, the Court held 8-1 that

the First Amendment bars intentional infliction of

emotional distress liability for speech on matters of

public concern, even when that speech is intended to

annoy, harass, or alarm its recipient. 562 U.S. 443,

460-61 (2011). The Court rejected liability for

protestors with signs such as “God Hates Fags” who

sought to disrupt military funerals. Id. at 448. “Such

speech,” the Court held, “cannot be restricted simply

because it is upsetting or arouses contempt.” Id. at

458.

The Texas court flouted these precedents in

holding that a law criminalizing the repeated sending

of expressive communications is not subject to any

First Amendment scrutiny if sent with a disfavored

intent. The implications of this holding are

nonsensical and disturbing. A person can wear an

intentionally annoying “Fuck the Draft” jacket in a

courtroom but could not repeatedly email those words

to an elected representative with an intent to annoy

as a means of protesting the Selective Service system.

A protester is free to abuse a grieving family member

of a fallen solider by picketing near a funeral but could

be punished for repeatedly posting pictures of funeral

protests on Facebook or Twitter, or emailing them to

the Secretary of Defense. The only distinction is the

medium of the communication, but that distinction is

without a difference.

A generation ago, this Court decided that

electronic communications are protected speech. In

Reno v. ACLU, the Court struck down portions of a

statute that criminalized the use of an “interactive

computer service” to display a “patently offensive”

“communication,” holding that the same settled First

Amendment principles apply to communications

online. 521 U.S. 844, 860 (1997); see also Ashcroft v.

ACLU, 542 U.S. 656, 661, 673 (2004) (concluding that

a law prohibiting the posting online of certain

materials “harmful to minors” was likely

unconstitutional and affirming the lower court’s entry

of preliminary injunction); Packingham v. North

Carolina, 137 S. Ct. 1730, 1737 (2017) (subjecting to

First Amendment scrutiny a law prohibiting sex

offenders from using social media).

Every time the Court has addressed a law

punishing online speech, there have been reasonable

grounds to disagree about the answer to the First

Amendment question presented. See Reno, 521 U.S. at

886 (O’Connor, J., concurring in the judgment in part

and dissenting in part); Ashcroft, 542 U.S. at 676

(Scalia, J., dissenting); id. at 676 (Breyer, J.,

dissenting); Packingham, 137 S. Ct. at 1738 (Alito, J.,

concurring in the judgment). But in every case, all

have agreed there was a First Amendment question to

be asked.

The Texas court defied these precedents by

refusing even to apply any First Amendment analysis

to § 42.07(a)(7). App.2a.

2. This Court has rejected the proposition

that a law restricting speech does not

implicate the First Amendment if it can

be violated without communicating

anything

The Texas court contradicted this Court’s

precedents in another fundamental way. It

acknowledged that § 42.07(a)(7) does penalize

“expressive speech,” but nonetheless declined to apply

First Amendment scrutiny because one could violate

it without actually communicating anything. The

court explained that one could, for example, “send[]

several e-mails containing only the letter ‘B’ . . . or emails containing nothing” and thus concluded that the

statute essentially prohibits conduct rather than

speech. App.59a-60a. This Court has previously

rejected this very rationale for avoiding First

Amendment scrutiny.

City of Houston v. Hill holds that laws facially

proscribing speech implicate the First Amendment

even if they also reach some non-expressive conduct,

like the Texas law here. In Hill, a city ordinance made

it unlawful to “in any manner oppose, molest, abuse

or interrupt any policeman in the execution of his

duty.” 482 U.S. 451, 455 (1987). The Court flatly

rejected Houston’s argument that “the ordinance does

not inhibit the exposition of ideas,” and held that it

“deals not with core criminal conduct, but with

speech.” Id. at 459-60. Even though some convictions

resulted from the non-expressive conduct of

disobeying an officer’s order to leave the scene, this

Court found the law facially overbroad. See id. at 467;

see also Hill v. City of Houston, 789 F.2d 1103, 1113

(5th Cir. 1986) (en banc) (appendix containing

examples of convictions under the ordinance), aff’d,

482 U.S. 451 (1987).

Conversely, this Court has held repeatedly that

laws facially regulating conduct nevertheless

implicate the First Amendment when they can also

apply to expression. In McCullen v. Coakley, for

example, the Court invalidated on First Amendment

grounds a statute imposing a 35-foot buffer zone

outside abortion facilities. 573 U.S. 464, 469, 497

(2014). One could imagine non-expressive violations

less farfetched than repeatedly sending emails with

only the letter “B”—for instance, sitting on a bench

within the zone and minding one’s own business. Yet

such hypothetical applications did not obviate the

need to conduct a First Amendment analysis on a

facial challenge to the law. The Court has also

subjected statutes regulating conduct to as-applied

scrutiny when expressive conduct is restricted. See,

e.g., United States v. O’Brien, 391 U.S. 367, 375 (1968)

(law prohibiting the burning of draft cards that “on its

face deals with conduct having no connection with

speech”); Holder v. Humanitarian Law Project, 561

U.S. 1, 26 (2010) (law proscribing “material support”

for terrorists, which “most often does not take the

form of speech”).

Attempting to justify its departure from this

precedent concerning laws restricting expressive

conduct, the Texas court cited four inapposite cases

holding that the First Amendment did not apply to

laws regulating conduct that had no significant

expressive component. See App.47a-52a. In three of

the cases, the challenged statute prohibited only nonexpressive conduct. See Arcara v. Cloud Books, Inc.,

478 U.S. 697, 705 (1986) (prostitution and its

solicitation “manifests absolutely no element of

protected expression”); Rumsfeld v. Forum for Acad.

& Inst. Rts., Inc., 547 U.S. 47, 64 (2006) (refusing to

allow military recruiters onto a campus “is not

inherently expressive”); Nev. Comm’n on Ethics v.

Carrigan, 564 U.S. 117, 126, 127 (2011) (declining to

apply the First Amendment to a recusal statute

because “the act of voting symbolizes nothing”). In the

fourth case, Virginia v. Hicks, this Court reversed a

finding of substantial overbreadth but did not dispute

that the challenged policy implicated the First

Amendment. 539 U.S. 113, 124 (2003). None of these

cases support the Texas court’s refusal to undertake

any First Amendment analysis of § 42.07(a)(7).

If laws restricting conduct that can be read to

apply to expressive activities implicate the First

Amendment,

fortiori

law

restricting

communications implicates the First Amendment

even if it can be read to apply to non-expressive

conduct. And even if the Texas law could be viewed as

a facial restriction of conduct, the Texas court’s

acknowledgment that it also applies to “expressive

speech,” App.59a, necessarily compels a First

Amendment analysis under the established precedent

of this Court.

3. This Court has rejected the proposition

that a law imposing sanctions based on

the content of a communication does

not implicate the First Amendment

The Texas court’s holding contravenes this Court’s

precedent in still another fundamental respect. To

find no First Amendment issue presented, the court

relied on its earlier decision upholding a law

criminalizing the act of repeatedly causing a person’s

telephone to ring or repeatedly making anonymous

telephone calls with the same intent and effect as

required by § 42.07(a)(7). App.53a-59a. In Scott v.

State, the court found the regulated telephone conduct

“essentially noncommunicative” because the “usual

case” of a violation would be a person having no

“intent to engage in the legitimate communication of

ideas, opinions, or information.” 322 S.W.3d 662, 670

(Tex. Crim. App. 2010). The Texas court in the instant

cases reasoned that the sending of repeated emails or

text messages is the analogue of repeated telephone

hang-ups. App.59a-61a.

Whatever the merits of Scott’s analysis of the

telephone law, the usual case addressed by the

electronic communications law is not an “e-mail[]

containing nothing,” App.59a-60a, but one containing

a message. And unlike repeated telephone hang ups

and anonymous calls, whose harassing nature

depends on factors unrelated to the communication of

any message, determining whether an email, text

message, or tweet is likely to harass, alarm,

embarrass, etc. will typically depend upon its

content—its effect on the recipient is “because of” the

“message expressed.” Reed v. Town of Gilbert, 576

U.S. 155, 163 (2015).

In this respect, the Texas rulings contradict this

Court’s holdings that regulations dependent upon the

content of a communication necessarily trigger First

Amendment scrutiny. See, e.g., id.; Sorrell v. IMS

Health Inc., 564 U.S. 552, 565 (2011).

The Texas Court’s Refusal to Apply First

Amendment Scrutiny Upholds a Law that

Cannot Survive an Overbreadth Analysis

Under this Court’s Precedent

The Texas law proscribes an astounding amount of

core protected speech. The Court of Criminal Appeals

definitively construed § 42.07(a)(7) broadly to cover

the “legitimate communication of ideas,” App.12a-13a,

or, in this Court’s words, “matters of public concern,”

Snyder, 562 U.S. at 451. While the court refused to

reach Petitioners’ overbreadth challenges, the dissent

found no question that “the statute punishes a

substantial amount of protected speech in relation to

its legitimate sweep” and that the law is plainly

overbroad. App.28a; see also United States v. Stevens,

559 U.S. 460, 473 (2010).

This Court’s precedents expose the obvious

overbreadth of § 42.07(a)(7)’s application to abusive,

annoying, alarming, and offending communications.

In Gooding v. Wilson, for example, the Court held

overbroad a Georgia statute that proscribed using

“opprobrious words or abusive language[] tending to

cause a breach of the peace.” 405 U.S. 518, 519-20

(1972) (emphasis added). Pointing to the broad

meaning of “abusive” that includes “harsh insulting

language,” the Court found the statute’s “great[]

reach” to extend well beyond proscribable speech. Id.

at 525. But the reach of that law pales in comparison

to § 42.07(a)(7), which sanctions a laundry list of

disfavored communications that the Texas court has

construed broadly:

“Harass” means “to annoy persistently.”

“Annoy” means to “wear on the nerves by

persistent petty unpleasantness.” “Alarm”

means “to strike with fear.” “Abuse” means “to

attack with words.” “Torment” means “to

cause severe distress of the mind.”

“Embarrass” means “to cause to experience a

state of self-conscious distress.” “Offend”

means “to cause dislike, anger, or vexation.”

Scott, 322 S.W.3d at 669 n.13 (quoting Webster’s Ninth

New Collegiate Dictionary 47, 68, 88, 405, 552, 819, &

1245 (1988)). Under Gooding, § 42.07(a)(7) is

unambiguously overbroad.

Stevens similarly establishes the obvious

overbreadth of the Texas law. That case held

overbroad a law prohibiting depictions of animal

cruelty absent a serious redeeming value. 559 U.S. at

482. Even this limitation for some speech on matters

of public concern could not save the overbroad law,

because “most” speech “lacks ‘religious, political,

scientific, educational, journalistic, historical, or

artistic value’ (let alone serious value), but it is still

sheltered from government regulation.” Id. at 479.

The Texas statute likewise proscribes a substantial

amount of speech that is protected even if it does not

address a matter of public concern. For example,

§ 42.07(a)(7) makes it a crime for parents to

repeatedly text their children to “annoy” them into

coming home before late, or friends to post baby

photos to “embarrass” each other.

The patent overbreadth of the Texas law is only

underscored by the Texas court’s acknowledgment

that it applies to the “legitimate communication of

ideas.” App.12a-13a. Such speech “is at the heart of

the First Amendment’s protection,” Snyder, 562 U.S.

at 451-52, and the First Amendment forbids its

punishment “simply because it is upsetting or arouses

contempt,” id. at 458.

The dissenters vividly illustrated how § 42.07(a)(7)

does just that, criminalizing a staggering amount of

speech on matters of public concern. “Suppose,” they

wrote,

a citizen, unhappy with an opinion from this

Court, sent repeated emails to a group of likeminded citizens, saying “Texas is in trouble”

and “This is arguably the most devastating

ruling I have ever received from a court” and

“It’s time to get serious and get on the phone,

write letters, etc to EVERYONE YOU KNOW

to make them aware of what’s happening.

Name names on this court! If this stands we

lose Texas. It’s do or die this time.” Has that

citizen committed a crime? Under the Court's

decision today, the answer is “Yes.”

App.20a.

Other examples abound. Section 42.07(a)(7) on its

face makes it a crime for a political campaign to

repeatedly email potential voters using language

expressly intended to “alarm” them about their

opponent’s platform. It is also a crime for a politician

to repeatedly and intentionally communicate political

views online in a manner that “offend[s].” It is a crime

for a voter to intentionally and repeatedly tweet to

“embarrass” a politician, and it is a crime for a priest

to intentionally and repeatedly “alarm” his flock that

sinning could damn them, even if the goal is to save

their souls.

In stark contrast to myriad examples of protected

speech subject to sanction under § 42.07(a)(7), the

Texas court majority could offer only outlandish

hypotheticals to show how the law could possibly

apply to unprotected conduct. See App.59a-60a

(discussing how sending emails “containing only the

letter ‘B,’” indecipherable computer code, or

“meaningless data” could violate the law). Though one

might imagine less strained examples, the

unconstitutional applications dwarf the arguably

permissible ones, making the statute’s overbreadth

“substantial . . . judged in relation to [its] plainly

legitimate sweep.” Stevens, 559 U.S. at 473.

That overbreadth imposes a chill on protected

electronic communications which is far from

imaginary when all that stands between a speaker

and criminal prosecution is the whims of a prosecutor.

This Court has invalidated similar laws for just this

reason. See Hill, 482 U.S. at 466-67 (finding

overbroad an ordinance whose “plain language is

admittedly violated scores of times daily . . . yet only

some individuals—those chosen by police in their

unguided discretion—are arrested”).

II. COURTS ARE DEEPLY SPLIT ON THE

PROPER APPLICATION OF THE FIRST

AMENDMENT TO LAWS CRIMINALIZING

ELECTRONIC COMMUNICATIONS SENT

WITH A DISFAVORED INTENT

Despite this Court’s ruling in Reno and its progeny

that the First Amendment applies fully to online

speech, courts have struggled to apply First

Amendment principles to disfavored speech posted

online or sent through social media. Two issues

framed by the Texas court’s holdings have divided

courts and created uncertainty about First

Amendment protections afforded in different states to

online speech that alarms, annoys, or offends. First,

courts have reached differing conclusions about

whether the First Amendment applies to online

harassment statutes like § 42.07(a)(7). Second, courts

subjecting these laws to First Amendment scrutiny

have differed widely regarding whether and when

such laws are constitutionally overbroad.

This Court has recognized that it is “intolerable to

leave unanswered,” and in “uneasy and unsettled

constitutional posture,” questions concerning First

Amendment protections. Miami Herald Pub. Co. v.

Tornillo, 418 U.S. 241, 247 n.6 (1974). The conflicting

decisions of state courts of last resort and the federal

circuits concerning harassment laws targeting online

speech threaten to do just that. This Court should

clarify this issue before more courts tread down the

Texas court’s erroneous path, endangering free

expression in the “vast democratic forums of the

Internet.” Packingham v. North Carolina, 137 S. Ct.

1730, 1735 (2017) (quoting Reno v. ACLU, 521 U.S.

844, 868 (1997)).

A Minority of Courts Hold that Laws

Criminalizing Electronic or Telephonic

Communications Made with a Disfavored

Intent Raise No First Amendment Issue

The Texas court joined a minority of courts in

concluding that laws targeting electronic or telephonic

communications made with a disfavored intent are

exempt from First Amendment scrutiny because they

regulate non-communicative conduct. Many of these

courts found the laws’ intent requirements central to

that rationale even when the law applied, as here, to

speech of public concern.

For instance, in Thorne v. Bailey, the Fourth

Circuit concluded that a West Virginia statute barring

the “mak[ing of] repeated telephone calls, during

which conversation ensues, with intent to harass”

merely “prohibits conduct and not protected speech.”

846 F.2d 241, 242 n.1, 243 (4th Cir. 1988). In so

holding, the court accepted the West Virginia

Supreme Court’s analysis of the same statute, over a

dissent that understood Falwell to hold that “[s]peech

does not lose its protected character,” simply because

one “intends to distress.” Id. at 247 (Butzner, J.,

dissenting). See also State v. Thorne, 333 S.E.2d 817,

819-20 (W. Va. 1985); accord State v. Calvert, No. 150195, 2016 WL 3179968, at *4 (W. Va. June 3, 2016).

Similarly, in Gormley v. Director, Connecticut

State Department of Probation, the Second Circuit

construed a law criminalizing phoning another person

with “intent to harass, annoy or alarm” as targeting

conduct rather than speech, reasoning that the law

regulated the making of the call itself. 632 F.2d 938,

941-42 (2d Cir. 1980).

The Ninth Circuit has twice concluded that

electronic communication and telephone harassment

statutes do not implicate the First Amendment. In

United States v. Osinger, the court upheld a prior

version of the federal cyberstalking statute, which at

the time prohibited using an interactive computer

service to engage in a “course of conduct” causing

substantial emotional distress with the intent to “kill,

injure, harass, or place under surveillance with intent

to kill, injure, harass, or intimidate, or cause

substantial

emotional

distress.”

U.S.C.

§ 2261A(2)(A) (2006). The court held that the law

targeted a course of “harassing and intimidating

conduct” rather than speech. 753 F.3d 939, 944 (9th

Cir. 2014). And in United States v. Waggy, the Ninth

Circuit reached an analogous holding in concluding

that a Washington telephonic harassment statute

“regulates nonexpressive conduct and does not

implicate First Amendment concerns,” even where the

incriminating telephone call “included some criticism

of the government.” 936 F.3d 1014, 1019 (9th Cir.

2019).3

Some state courts of last resort have adopted a

similar approach. For instance, in Commonwealth v.

Hendrickson, the Pennsylvania Supreme Court

concluded that Pennsylvania’s telephone harassment

statute, which prohibited telephone calls made “with

intent to harass another” containing “any lewd,

lascivious or indecent words or language,” “does not

punish constitutionally-protected conduct,” even

where the defendant’s calls “contained political

speech.” 724 A.2d 315, 317-18 (Pa. 1999); see also

Thorne, 333 S.E.2d at 819-20.

Most Courts Hold the Opposite, but Not

All Have Granted Relief Under the

Overbreadth Doctrine

A large majority of courts have held to the contrary

that the First Amendment is implicated by laws

criminalizing electronic or telephonic communications

made with a disfavored intent. Many take as a given

that these laws regulate speech. See, e.g., United

States v. Weiss, No. 20-10283, 2021 WL 6116629, at *2

The Ninth Circuit recently came to the opposite conclusion

when considering the federal telecommunications harassment

statute. In an unpublished opinion, the court stated that 47

U.S.C. § 223(a)(1)(C), which prohibits anonymously “utiliz[ing] a

telecommunications device, whether or not conversation or

communication ensues,” with “intent to abuse, threaten, or

harass any specific person . . . criminalizes speech,” and thus

“must be interpreted with the commands of the First

Amendment clearly in mind.” United States v. Weiss, No. 2010283, 2021 WL 6116629, at *2 (9th Cir. Dec. 27, 2021) (quoting

Watts v. United States, 394 U.S. 705, 707 (1969)).

(9th Cir. Dec. 27, 2021) (stating that because the

federal telecommunications harassment statute,

§ 223(a)(1)(C), “criminalizes speech” it must be subject

to First Amendment scrutiny). Others explicitly

consider the question and come to the same

conclusion.

Most recently, in United States v. Yung, the Third

Circuit rejected the argument that the current version

of the federal cyberstalking statute “focuses on

conduct, not speech,” finding that the law plainly

regulates “a lot of speech, [including] emails, texts,

and social media posts.” 37 F.4th 70, 77 (3d Cir. 2022).

Similarly to the Texas law, the federal statute

criminalizes sending electronic communications with

the intent to “harass [or] intimidate.” 18 U.S.C.

§ 2261A(2)(A). See also Matter of Welfare of A.J.B.,

929 N.W.2d 840, 849 (Minn. 2019) (holding that a

stalking statute that reached, inter alia, electronic

communications that made one feel “frightened,

threatened, oppressed, persecuted, or intimidated,”

sanctioned “purely expressive” communications and

not just conduct).

While these courts agree that electronic

harassment statutes like § 42.07(a)(7) regulate

speech, they diverge on the proper First Amendment

analysis to apply. Most courts recognize the

overbreadth problems inherent in such laws and

respond by invalidating them, narrowly construing

them, or severing problematic parts. But at least one

state high court has flatly rejected an overbreadth

challenge to an electronic harassment law on the

merits.

Finding overbreadth. Three state high courts have

held

electronic

harassment

statutes

unconstitutionally overbroad. The New York Court of

Appeals

invalidated

statute

proscribing

communication “with intent to harass, annoy,

threaten, or alarm” “in a manner likely to cause

annoyance or alarm.” People v. Golb, 15 N.E.3d 805,

810, 813 (N.Y. 2014). The Minnesota Supreme Court

struck down a stalking law proscribing electronic

communications causing someone to feel “frightened,

threatened, oppressed, persecuted, or intimidated.”

Matter of Welfare of A.J.B., 929 N.W.2d at 852-53. The

same court severed “disturb, or cause distress” from a

different harassment law that proscribed the

electronic and physical “mail[ing] . . . of letters” with

“the intent to abuse, disturb, or cause distress.” Id. at

857, 862-63.4 And the Colorado Supreme Court

severed part of a statute prohibiting electronic

communications sent with the “intent to harass,

annoy or alarm,” leaving only those parts that

proscribed “true threats and obscenity.” People v.

Moreno, 506 P.3d 849, 855-57 (Colo. 2022). The court

found the statute to apply to huge swaths of “protected

communications, including forecasting a storm or

engaging in political discourse.” Id. at 854.

Likewise, four federal courts of appeal have found

that the federal cyberstalking statute would be

4 Though Texas Penal Code § 42.07(a)(7) does not contain the

words “disturb” or “cause distress,” the Court of Criminal

Appeals has construed each of the proscribed acts as “types of

emotional distress.” Scott v. State, 322 S.W.3d 662, 669 (Tex.

Crim. App. 2010).

overbroad on a plain-language reading, but upheld it

by narrowly construing its terms to apply only to

categorically unprotected speech. This law is identical

to the prior version except that one can violate it with

an intent to “intimidate” and through conduct

“reasonably expected to cause” emotional distress. 18

U.S.C. § 2261A(2). See Yung, 37 F.4th at 76

(comparing versions). Along with the First, Third, and

Eleventh Circuits, the Eighth Circuit has construed

the law narrowly to apply only to categories of

unprotected speech. The Eighth Circuit concluded

that the law was unconstitutional as applied to a

defendant who repeatedly sent offensive emails to a

political campaign email address that urged the

candidate to “bow out of the race.” United States v.

Sryniawski, 48 F.4th 583, 585, 589 (8th Cir. 2022); see

also Yung, 37 F.4th at 77, 78-81 (construing the law

to capture only “true threats” and speech “integral to

crime” to avoid a “colli[sion] with the First

Amendment”); United States v. Ackell, 907 F.3d 67, 76

(1st Cir. 2018) (construing “intimidation” as a “true

threat” to “avoid [the] serious constitutional threat”

that the statute would forbid “speech on a matter of

public concern”) (cleaned up); United States v. Fleury,

20 F.4th 1353, 1363 (11th Cir. 2021) (finding Ackell’s

overbreadth analysis “particularly persuasive”).

Rejecting overbreadth. Charting a different path,

the Supreme Court of Montana recognized the First

Amendment implications of an electronic harassment

statute but upheld it against an overbreadth

challenge without narrowing or severing it. The

Montana law proscribed electronic communications

made “with the purpose to terrify, intimidate,

threaten, harass, annoy, or offend us[ing] obscene,

lewd, or profane language . . . or threaten[ing] to

inflict injury or physical harm to the person or

property of the person.” Mont. Code. Ann. § 45–8–

13(1)(a). It also provided that “[t]he use of obscene,

lewd, or profane language or the making of a threat or

lewd or lascivious suggestions is prima facie evidence

of an intent to terrify, intimidate, threaten, harass,

annoy, or offend.” Id. The court severed the prima

facie evidence provision as overbroad but, without

discussion, upheld the proscription on electronic

communications. See State v. Dugan, 303 P.3d 755,

772 (Mont. 2013).

Without guidance from this Court, the existing

disagreements about whether the First Amendment is

implicated by laws like § 42.07(a)(7) and, if so, how an

overbreadth analysis should apply will only grow and

further exacerbate the differing treatment of online

speech by citizens of differing states. In New York, an

atheist may freely tweet at a Christian in a

deliberately alarming manner. But how a Christian

may respond depends on where they live. If in New

York, they may fight fire with fire. If in Texas, they

must turn the other cheek.

III. THE BREADTH OF A STATE’S ABILITY TO

PUNISH ONLINE SPEECH PRESENTS AN

IMPORTANT QUESTION OF FEDERAL

LAW

The implications of the Texas court’s refusal to

conduct any overbreadth analysis are particularly

troubling and far-reaching because the types of

electronic communications subject to § 42.07(a)(7) are

ubiquitous today. Some 85% of Americans use the

Internet daily and 31% describe themselves as “online

almost constantly.”5 Social media has “transformed

the way people communicate with each other and

obtain news.” NetChoice v. Paxton, 142 S. Ct. 1715,

1716 (2022) (Alito, J., dissenting from grant of

application to vacate stay).

The Internet provides an increasingly crucial

space for political discussion, and growing

opportunities for the punishment of unpopular views.

During the 2020 election cycle, digital spending

comprised 24.3% of all political advertising, with

candidates spending over $434 million in the category,

often repeatedly and intentionally embarrassing their

opponents.6 Citizens likewise depend on electronic

communication to express their political views; a

recent study found that 33% of tweets are “political in

nature.”7 And social media has played a growing role

in organizing protest movements, particularly amid

5 Andrew Perrin & Sara Atske, About 3 in 10 U.S. Adults Say

They Are ‘Almost Constantly’ Online, Pew Research Center

(Mar. 26, 2021), https://www.pewresearch.org/facttank/2021/03/26/about-three-in-ten-u-s-adults-say-they-arealmost-constantly-online.

6 Travis Ridout et al., Spending Fast and Furious: Political

Advertising in 2020, 18 The Forum 465, 475 tbl.2 (2021),

https://doi.org/10.1515/for-2020-2109.

7 Sam Bestvater et al., Politics on Twitter: One-Third of Tweets

From U.S. Adults Are Political, Pew Research Center (June 16,

2022), https://www.pewresearch.org/politics/2022/06/16/politicson-twitter-one-third-of-tweets-from-u-s-adults-are-political.

the uncertainty of COVID-19.8 This type of core

political speech often consists of “vehement, caustic,

and sometimes unpleasantly sharp attacks.” Hustler

Magazine, Inc. v. Falwell, 485 U.S. 46, 51 (1988)

(quoting N.Y. Times v. Sullivan, 376 U.S. 254, 270

(1964)). The Texas statute forbids much of it.

Similarly, religious organizations across the

country have increasingly turned to the Internet to

spread their beliefs and grow their communities.9 In

sharing their message, religious leaders and

organizations may repeatedly and intentionally

“alarm” their audience. They also use these media to

express their religious viewpoints on “broad issues of

interest to society at large.” Snyder v. Phelps, 562 U.S.

443, 454 (2011). Some may find such speech

“insulting, and even outrageous,” but it is still

protected by the First Amendment. Id.

The Texas court’s holding exposes political and

religious speakers, among others, to the threat of

criminal prosecution. As this Court warned in

Thornhill v. Alabama, this type of law “readily lends

itself to harsh and discriminatory enforcement by

local prosecuting officials, against particular groups

deemed to merit their displeasure,” in turn causing “a

8 Shira Ovide, How Social Media Has Changed Civil Rights

Protests, N.Y. Times (Dec. 17, 2020),

https://www.nytimes.com/2020/06/18/technology/social-mediaprotests.html.

9 Khadeeja Safdar, Churches Target New Members, With Help

From Big Data, Wall Street Journal (Dec. 26, 2021),

https://www.wsj.com/articles/churches-new-members-personalonline-data-analytics-gloo-11640310982.

continuous and pervasive restraint on all freedom of

discussion that might reasonably be regarded as

within its purview.” 310 U.S. 88, 97-98 (1940). The

Texas court would ensure this result by precluding

review of a law criminalizing speech intended to

alarm.

In fact, laws prohibiting online speech are

routinely used for these purposes. Texas’s law is not

materially different from those of:



China, where the state used a law that, inter

alia, forbids “berat[ing] or intimidat[ing]”

others on the Internet to arrest renowned

civil rights lawyer Pu Zhiqiang for a series

of social media posts.10

Uganda, where the state has used a law

criminalizing “offensive communications” to

prosecute journalists, bloggers, and other

online dissenters who posted criticism of

authorities.11

10 Dui Hua Hum. Rts. J., Deeming Free Speech Disorder in

Internet Space (Mar. 5, 2015),

https://www.duihuahrjournal.org/2015/03/article-293-deemingfree-speech.html.

11 Hum. Rts. Watch, Uganda: Ensure Justice for Detained,

Tortured Author, (Feb. 11, 2022),

https://www.hrw.org/news/2022/02/11/uganda-ensure-justicedetained-tortured-author; ABA, Trial Observation Report:

Uganda vs. Stella Nyanzi (Feb. 16, 2020),

https://www.americanbar.org/groups/human_rights/reports/fair

nessreport_uganda_stella_nyanzi.



Russia, where the state forbids “blatant

disrespect” on the Internet of the flag or of

President Vladimir Putin.12

These countries don’t have the First Amendment

to stop these prosecutions. We do.

Even if prosecutions motivated by political or

religious animus might ultimately fail on an asapplied basis, “[m]any persons, rather than undertake

the considerable burden (and sometimes risk) of

vindicating their rights through case-by-case

litigation, will choose simply to abstain from protected

speech—harming not only themselves but society as a

whole, which is deprived of an uninhibited

marketplace of ideas.” Citizens United v. Fed. Election

Comm’n, 558 U.S. 310, 335 (2010) (citations omitted).

The chilling effect of laws like § 42.07(a)(7) is wide and

real. This Court should stop it.

CONCLUSION

For the foregoing reasons, Petitioners respectfully

request that this Court grant certiorari.

Respectfully submitted,

12 Reuters, Russia's Putin Signs Law Banning Fake News,

Insulting the State Online (Mar. 18, 2019),

https://www.reuters.com/article/us-russia-politicsfakenews/russias-putin-signs-law-banning-fake-news-insultingthe-state-online-idUSKCN1QZ1TZ; The Moscow Times, Most

Russians Charged for 'Disrespecting' Authorities Insulted Putin

– Rights Group (Sept. 30, 2019),

https://www.themoscowtimes.com/2019/09/30/most-russianscharged-for-disrespecting-authorities-insulted-putin-studya67504.

Edward G. Jones

Tobias Xavier Lopez

1319 Ballinger St.

Fort Worth, Texas 76102

(817) 335-0200

tobiasxavierlopez@gmail.com

Lane A. Haygood

3800 E. 42nd St. Suite 110

Odessa, Texas 79762

(432) 803-5800

lhaygood@galyen.com

Rusty Gunter

1213 Avenue K

Lubbock, Texas 79401

(806) 771-3933

rusty.gunter2@gmail.com

David A. Schulz

Counsel of Record

Stephen Stich

Kelsey Eberly

Rachel Davidson

MEDIA FREEDOM AND

INFORMATION ACCESS

CLINIC

ABRAMS INSTITUTE

YALE LAW SCHOOL13

127 Wall St.

New Haven, CT 06511

(203) 436-5827

david.schulz@yale.edu

Mark W. Bennett

917 Franklin St., 4th Floor

Houston, Texas 77002

(713) 224-1747

mb@ivi3.com

Date: November 4, 2022

13 This Petition does not purport to represent the institutional

views of Yale Law School, if any.

APPENDIX

APPENDIX A

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

————

No. PD-1123-19

————

EX PARTE CHARLES BARTON, Appellant

————

ON STATE’S PETITION FOR DISCRETIONARY

REVIEW FROM THE SECOND COURT OF

APPEALS TARRANT COUNTY

————

WALKER, J., delivered the opinion of the Court, in

which HERVEY, RICHARDSON, YEARY, and NEWELL, JJ.,

joined. YEARY, J., filed a concurring opinion. KELLER,

P.J., filed a dissenting opinion, in which KEEL, J.,

joined. SLAUGHTER and MCCLURE, JJ., dissented.

————

OPINION

In this case, the court of appeals held that § 42.07(a)(7)

of the Penal Code, the electronic harassment statute,

is unconstitutionally vague and overbroad under the

First Amendment. The court determined that it was

not bound to follow our decision in Scott v. State. 322

S.W.3d 662 (Tex. Crim. App. 2010), disavowed on other

grounds by Wilson v. State, 448 S.W.3d 418, 423 (Tex.

Crim. App. 2014). In Scott, we held that § 42.07(a)(4)

of the Penal Code, the telephone harassment statute,

does not implicate the freedom of speech protections

of the First Amendment of the United States

Constitution because it prohibits non-speech conduct.

322 S.W.3d at 669–70. Today, we clarify our holding in

Wilson and its impact upon our holding in Scott.

Following Scott’s precedent, we hold that § 42.07(a)(7),

the electronic harassment statute, also fails to implicate the First Amendment’s freedom of speech protections

because it too prohibits non-speech conduct. We

reverse the judgment of the court of appeals.

I—Background

Charles Barton, Appellant, was charged with violating Penal Code § 42.07(a)(7), the electronic harassment

statute, which provided:

(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.

Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec.

42.07, 1973 Tex. Gen. Laws 883, 956–57 (amended

2001)1 (current version at TEX. PENAL CODE Ann.

§ 42.07(a)(7)).2 Appellant filed a motion to quash the

Appellant’s case is governed by the 2001 version of the

electronic harassment statute. Accordingly, while we will

reference the statute with its current citation, this opinion refers

to the 2001 version.

“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) a communication initiated by electronic mail,

instant message, network call, or facsimile machine;

and

information arguing that the statute was unconstitutional and that the information failed to provide

adequate notice because it lacked specificity. The

motion was denied after a hearing. Appellant then

filed a pre-trial application for habeas corpus relief

again raising the constitutionality of the statute. The

trial court denied relief, but the court of appeals held

§ 42.07(a)(7) unconstitutional and reversed. Ex parte

Barton, 586 S.W.3d 573, 585 (Tex. App.—Fort Worth

2019) (op. on reh’g). Acknowledging that other appellate

courts upheld the constitutionality of § 42.07(a)(7) by

applying Scott, the court of appeals below nevertheless

declined to follow Scott—finding that Scott’s reasoning

was undermined by our later opinion, Wilson. Id. at

578 n.11, 579–80. The court of appeals found that

§ 42.07(a)(7) implicated the First Amendment and,

following the precedent of its earlier opinion in

Karenev v. State, held that § 42.07(a)(7) was unconstitutionally vague and overbroad. Id. at 580–85 (citing

Karenev v. State, 258 S.W.3d 210, 213, 218 (Tex.

App.—Fort Worth 2008), rev’d on other grounds, 281

S.W.3d 428, 434 (Tex. Crim. App. 2009)).

We granted the State’s petition for discretionary

review which raised two grounds:

1. The court of appeals decided a facial

overbreadth claim that was not preserved at

trial or raised on appeal.

2. Is Tex. Penal Code § 42.07(a)(7), which

prohibits harassing electronic communications, facially unconstitutional?

(B) a communication made to a pager.

TEX. PENAL CODE Ann. § 42.07(b)(1).

We answer the question raised by State’s second

ground for review: No. Section 42.07(a)(7) does not

implicate the First Amendment, and it satisfies the

“rational basis” test. The overbreadth doctrine is

inapplicable, and we dismiss the State’s first ground

for review as moot.

II—Overbreadth and Preservation of Error

The State’s first ground for review argues that the

court of appeals erred in considering overbreadth

under the First Amendment because Appellant failed

to present a proper overbreadth argument in the trial

court. The State and Appellant dispute whether

the bare assertion, in Appellant’s motion to quash and

the hearing on that motion,3 that the electronic

harassment statute is “overly broad” and “chills”

protected speech is sufficiently specific to preserve the

overbreadth issue for consideration on appeal.

“The First Amendment doctrine of substantial overbreadth is an exception to the general rule that a

person to whom a statute may be constitutionally

applied cannot challenge the statute on the ground

that it may be unconstitutionally applied to others.”

Massachusetts v. Oakes, 491 U.S. 576, 581 (1989). “In

the First Amendment context, . . . a law may be

invalidated as overbroad if ‘a substantial number of its

applications are unconstitutional, judged in relation to

the statute’s plainly legitimate sweep.’” United States

v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash.

State Grange v. Wash. State Republican Party, 552

U.S. 442, 449 n.6 (2008)). “[O]utside the limited First

During the hearing on the pre-trial application for writ of

habeas corpus, the trial court took judicial notice of the

arguments that were made in the earlier motion to quash the

information and the hearing on that motion.

Amendment context, a criminal statute may not be

attacked as overbroad.” Schall v. Martin, 467 U.S. 253,

268 n.18 (1984); United States v. Salerno, 481 U.S.

739, 745 (1987) (“[W]e have not recognized an ‘overbreadth’ doctrine outside the limited context of the

First Amendment.”).

Due to our resolution of the State’s second ground

for review—that § 42.07(a)(7) does not implicate the

First Amendment4—overbreadth is inapplicable. See

Martin, 467 U.S. at 268 n.18; Salerno, 481 U.S. at 745.

Because the doctrine is inapplicable, whether

Appellant’s bare references to overbreadth are

sufficient to preserve the issue for appeal is entirely

academic and unnecessary for our analysis.

We therefore dismiss the State’s first ground for

review as moot.

III—Vagueness Challenges Are As-Applied Unless

the First Amendment Is Implicated

The State’s second ground for review complains that

the court of appeals erred in holding that § 42.07(a)(7)

is unconstitutionally vague and overbroad on its face.

Generally, “in addressing a vagueness challenge,”

courts are to “consider whether the statute is vague as

applied to a defendant’s conduct before considering

whether the statute may be vague as applied to the

conduct of others.” Wagner v. State, 539 S.W.3d 298,

314 (Tex. Crim. App. 2018). “A plaintiff who engages

in some conduct that is clearly proscribed cannot

complain of the vagueness of the law as applied to the

conduct of others. A court should therefore examine

the complainant’s conduct before analyzing other

Infra Part VI.

hypothetical applications of the law.” Id. (internal

quotations omitted).

This general rule gives way when freedom of speech

under the First Amendment is involved. “[W]hen a

vagueness challenge involves First Amendment considerations, a criminal law may be held facially invalid

even though it may not be unconstitutional as applied

to the defendant’s conduct.” State v. Doyal, 589 S.W.3d

136, 144 (Tex. Crim. App. 2019) (internal quotations

omitted). A law implicating First Amendment freedoms may be found facially vague without “a showing

that there are no possible instances of conduct clearly

falling within the statute’s prohibitions.” Id. at 145.

Determining that § 42.07(a)(7) implicates the First

Amendment, the court of appeals evaluated vagueness

without first considering whether Appellant showed

the statute was vague as applied to his own conduct.

See Barton, 586 S.W.3d at 580–85.

IV—Scott v. State: Conduct Under § 42.07(a)(4)

is Non-Speech Conduct

In finding § 42.07(a)(7) unconstitutionally vague,

the court of appeals distinguished our opinion in

Scott. See id. at 579. Although Scott involved a First

Amendment challenge to a different subsection of

§ 42.07—subsection (a)(4), the telephone harassment

statute—it has been relied upon by other appellate

courts to conclude that subsection (a)(7), the electronic

harassment statute, does not implicate the First

Amendment. See, e.g., State v. Grohn, 612 S.W.3d 78,

83 (Tex. App.—Beaumont 2020, pet. filed); Ex parte

McDonald, 606 S.W.3d 856, 859–61 (Tex. App.—

Austin 2020, pet. filed); Lebo v. State, 474 S.W.3d 402,

406–08 (Tex. App.—San Antonio 2015, pet. ref’d).5

In Scott, the appellant argued that § 42.07(a)(4), the

telephone harassment statute, is unconstitutionally

“vague and overbroad” in violation of the First

Amendment. Scott, 322 S.W.3d at 665. This statute

provided:

(a) A person commits an offense if, with

intent to harass, annoy, alarm, abuse, torment, or embarrass another, he:

(4) causes the telephone of another to ring

repeatedly or makes repeated telephone communications anonymously or in a manner

reasonably likely to harass, annoy, alarm,

abuse, torment, embarrass, or offend another[.]

See also Ex parte Sanders, No. 07-18-00335-CR, 2019 WL

1576076, at *4 (Tex. App.—Amarillo Apr. 8, 2019, pet. granted)

(mem. op., not designated for publication); Ex parte Hinojos, No.

08-17-00077-CR, 2018 WL 6629678, at *5 (Tex. App.—El Paso

Dec. 19, 2018, pet. ref’d) (not designated for publication); Ex parte

Ogle, No. 03-18-00207-CR, 2018 WL 3637385, at *7 (Tex. App.—

Austin Aug. 1, 2018, pet. ref’d) (mem. op., not designated for

publication); Ex parte Reece, No. 11-16-00196-CR, 2016 WL

6998930, at *3 (Tex. App.—Eastland Nov. 30, 2016, pet. ref’d)

(mem. op., not designated for publication); Blanchard v. State,

No. 03-16-00014-CR, 2016 WL 3144142, at *3 (Tex. App.—Austin

June 2, 2016, pet. ref’d) (mem. op., not designated for publication); Duran v. State, No. 13-11-00205-CR, 2012 WL 3612507, at

*2–3 (Tex. App.—Corpus Christi–Edinburg Aug. 23, 2012, pet.

ref’d) (mem. op., not designated for publication).

We note that one other court of appeals agreed with the

appellate court in this case, finding that Scott does not apply

because Wilson had undermined Scott’s underpinnings. State v.

Chen, 615 S.W.3d 376, 383 (Tex. App.—Houston [14th Dist.]

2020, pet. filed).

TEX. PENAL CODE Ann. § 42.07(a)(4). We concluded

that the 2001 version of § 42.07(a)(4) is not communicative conduct protected by the First Amendment

because the statute criminalizes harassing conduct

that, although it may include spoken words, is

essentially noncommunicative. Scott, 322 S.W.3d at

669–70. Furthermore, we determined that “persons

whose conduct violates § 42.07(4)(a) will not have an

intent to engage in the legitimate communication of

ideas, opinions, or information; they will have only the

intent to inflict emotional distress for its own sake.”

Id. at 670. We held that because § 42.07(a)(4) does not

implicate the First Amendment, Scott failed to show it

was unconstitutionally vague on its face. Id. at 669,

670–71.

As the court of appeals correctly noted: “Because

section 42.07(a)(4) did not reach communicative

conduct, it did not implicate the free-speech guarantee

of the First Amendment.” Barton, 586 S.W.3d at 578

(citing Scott, 322 S.W.3d at 669–70). The harassing

conduct is non-communicative. It is not speech.

V—Wilson did not Change Scott’s Holding

Although the court of appeals recognized our

holding in Scott, it concluded that Scott’s reasoning

had been undermined by our opinion in Wilson. Id. at

579–80. In Wilson, we revisited § 42.07(a)(4), not on

a constitutionality challenge, but on a challenge to

the sufficiency of the evidence to support Wilson’s

conviction. Wilson, 448 S.W.3d at 420.

Wilson was charged with violating § 42.07(a)(4),

and the evidence showed that she left six voicemail

messages on her neighbor’s phone over a period of ten

months. Id. at 420. The court of appeals found the

evidence insufficient to show that the telephone

communications were “repeated” because the six calls

occurred over a ten-month period, and the messages

that were not within a thirty-day period of each other

were not in close enough proximity to be considered a

single episode. Wilson v. State, 431 S.W.3d 92, 96 (Tex.

App.—Houston [1st Dist.] 2013), rev’d, 448 S.W.3d at

426. This analysis followed from a footnote in Scott,

which stated that:

The term “repeated” is commonly understood

to mean “reiterated,” “recurring,” or “frequent.” . . . Here, we believe that the

Legislature intended the phrase “repeated

telephone communications” to mean “more

than one telephone call in close enough

proximity to properly be termed a single

episode,” because it is the frequent repetition

of harassing telephone calls that makes them

intolerable and justifies their criminal

prohibition.

322 S.W.3d at 669 n.12. The court of appeals identified

two messages that it thought might be in close enough

proximity to be termed a single episode—one made on

August 31 and one made on September 5. Wilson, 431

S.W.3d at 96. However, the court of appeals found that

there was a legitimate reason for the September 5

call,6 negating both the element of an intent to harass

In the court of appeals’s opinion in Wilson, the September 5

message related to her neighbor’s driveway construction project.

In the message Wilson reported that she saw cement debris in the

gutters that needed to be cleaned up. Wilson, 431 S.W.3d at 96.

In this Court’s opinion on discretionary review, we described

this particular message as being made on June 11, and the

September 5 message instead demanded that her neighbor never

talk to or approach Wilson in public again. Wilson, 448 S.W.3d at

420, 421.

10a

and the element requiring the call to be made in a

manner reasonably likely to harass or annoy. Id.

According to the court of appeals, without the

September 5 call, the remaining calls were too far

apart to be considered a “part of a single episode.” Id.

The court of appeals found the element of “repeated”

unproven and rendered a judgment of acquittal. Id.

On discretionary review, we determined that Scott’s

footnote twelve was “troublesome,” and we accordingly

disavowed it. Wilson, 448 S.W.3d at 423. We held that

“‘repeated’ means, at a minimum, ‘recurrent’ action or

action occurring ‘again.’” Id. at 424. “‘[O]ne telephone

call will not suffice’ and a conviction secured by

evidence of a single communication will not stand.” Id.

(quoting Scott, 322 S.W.3d at 669).

As a result, we found the evidence legally sufficient.

Id. at 426. Based on

the content of the six calls over the ten-month

period, combined with evidence of Wilson’s

combative conduct and verbal abuse toward

[her neighbor], the jury could have rationally

found that Wilson, with the intent to harass,

annoy, alarm, abuse, torment, or embarrass

[her neighbor], made repeated telephone

communications . . . in a manner reasonably

likely to harass, annoy, alarm, abuse, torment, embarrass, or offend her.

Id.

Regarding the court of appeals’s determination that,

because the September 5th call was made with a

facially legitimate reason it could not be counted

among the repeated telephone communications, we

disagreed and concluded, “by way of an alternate

holding,” that the court of appeals’s sufficiency analy-

11a

sis was flawed. Id. at 425. One reason the analysis was

flawed—relevant to Appellant’s case before us today—

was that “the existence of evidence that may support

the conclusion that the call had a facially legitimate

purpose does not legally negate the prohibited intent

or manner of the call.” Id.

In Appellant’s case, the court of appeals understood

our alternate holding to mean that we had “acknowledged that a potential offender could have more than

one intent in delivering harassing conduct.” Barton,

586 S.W.3d at 579. Because we “did acknowledge the

potential that a ‘facially legitimate’ reason may exist

in a harassing phone call[,]” the court of appeals read

Wilson to mean “that a person who communicates with

the intent to harass, annoy, alarm, abuse, torment, or

embarrass can also have an intent to engage in the

legitimate communication of ideas, opinions, information, or grievances.” Id. As a result, the court of

appeals concluded that § 42.07(a)(4), and therefore

§ 42.07(a)(7), implicated the First Amendment. Id.

at 580.

Wilson should not be read so expansively. Wilson

dealt with a challenge to the sufficiency of the evidence. We specifically and primarily focused on what

is sufficient to show the element of “repeated.” Our

“alternate holding,” in turn, focused on the sufficiency

of the evidence to show the necessary intent, or—more

accurately—the impact of evidence of some additional

intent beyond the statutory requirement. Our “alternate holding” means that the existence of an intent to

engage in the legitimate communication of ideas does

not negate the existence of the prohibited intent to

harass, annoy, alarm, abuse, torment, or embarrass

another. Wilson, 448 S.W.3d at 425.

12a

This point bears repeating today. Section 42.07(a)(4)

makes it an offense for a person to make repeated

telephone communications, where those communications are made in a manner reasonably likely to

harass, annoy, alarm, abuse, torment, embarrass, or

offend, so long as the person making said communications has an intent to harass, annoy, alarm, abuse,

torment, or embarrass another. TEX. PENAL CODE Ann.

§ 42.07(a)(4). If the person harbors some extra intent

in making those communications, he nevertheless still

has an intent to harass, annoy, alarm, abuse, torment,

or embarrass another. Unless the separate intent

is specifically an intent not to harass, annoy, alarm,

abuse, torment, or embarrass another, the existence of

a separate, facially legitimate intent to communicate

does not negate the prohibited intent.

That is the point of Wilson’s alternate holding. Our

“alternate holding” in Wilson was not that § 42.07(a)(4)

could regulate expressive conduct—speech implicating

the First Amendment—if the repeated telephone communications were made with an additional intent to

engage in the legitimate communication of ideas.

More importantly, even accepting that a person who

violates § 42.07(a)(4) may harbor, alongside an intent

to harass, an additional intent to engage in the legitimate communication of ideas, that fact does not convert

non-expressive conduct into expressive conduct. The

Supreme Court has “rejected the view that ‘conduct

can be labeled ‘speech’ whenever the person engaging

in the conduct intends thereby to express an idea.’”

Rumsfeld v. Forum for Acad. & Institutional Rights,

Inc., 547 U.S. 47, 65–66 (2006) (quoting United States

v. O’Brien, 391 U.S. 367, 376 (1968)). Instead, First

Amendment protection extends “only to conduct that

is inherently expressive.” Id. at 66.

13a

Accordingly, Wilson’s recognition that a person

violating § 42.07(a)(4) with an intent to harass, annoy,

alarm, abuse, torment, or embarrass another may also

have an additional intent to engage in the legitimate

communication of ideas does nothing to the core

holding of Scott. Section § 42.07(a)(4), the telephone

harassment statute, is a restriction on conduct that is

non-expressive and thus not speech. This remains true

even if the offense is committed using words, and even

if the person does not have the sole intent to harass,

annoy, alarm, abuse, torment, or embarrass another.

VI—Scott Applies to § 42.07(a)(7)

Several other appellate courts concluded that Scott’s

reasoning applies to § 42.07(a)(7), the electronic

harassment statute, the same way it applies to

§ 42.07(a)(4), the telephone harassment statute. See,

e.g., Grohn, 612 S.W.3d at 83; McDonald, 606 S.W.3d

at 859–61; Lebo, 474 S.W.3d at 407; supra note 4.

Those courts found that § 42.07(a)(4) and (a)(7) are

the same for First Amendment purposes. As the Third

Court of Appeals explained in McDonald:

“[t]he free-speech analysis in Scott is equally

applicable to subsection 42.07(a)(7).” . . .

Although . . . the language in subsections

42.07(a)(4) and 42.07(a)(7) differs slightly

in that subsection 42.07(a)(4) “provides an

alternative manner of committing the offense

by making repeated phone calls ‘anonymously,’” . . . the slight “textual difference is

inconsequential to the First Amendment

analysis” and . . . the remaining statutory

language in the two subsections “is identical.”

McDonald, 606 S.W.3d at 860 (quoting Blanchard,

2016 WL 3144142, at *3). Indeed,

14a

all subsections of section 42.07(a) require the

same specific intent, that “to harass, annoy,

alarm, abuse, torment, or embarrass another.”

And while subsection (a)(4) is violated when

the actor “makes” repeated telephone communications and (a)(7) is violated when the actor

“sends” repeated electronic communications,

both subsections require for guilt that the

repeated communications occur “in a manner

reasonably likely to harass, annoy, alarm,

abuse, torment, embarrass, or offend another.”

Sanders, 2019 WL 1576076, at *3.

We agree. For First Amendment purposes, Scott’s

holding—that § 42.07(a)(4), the telephone harassment

statute, does not implicate the First Amendment—

applies equally to § 42.07(a)(7), the electronic harassment statute. The conduct regulated by § 42.07(a)(7) is

non-speech conduct that does not implicate the First

Amendment.

VII—Section 42.07(a)(7) is a Facially Constitutional

Regulation of Non-Speech Conduct

Section 42.07(a)(7) does not implicate the First

Amendment’s freedom of speech protections. Accordingly,

we use “the familiar ‘rational basis’ test” to determine

whether the statute is facially unconstitutional.

Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456,

461 (1981). “The default, ‘general rule’ or ‘standard’ is

that state action is ‘presumed to be valid’ and will be

upheld if it is but ‘rationally related to a legitimate

state interest.’” Estes v. State, 546 S.W.3d 691, 697

(Tex. Crim. App. 2018) (quoting City of Cleburne, Tex.

v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)).

“This general rule ‘gives way, however,’ when a state

action either ‘classifies by race, alienage, or national

15a

origin,’ or ‘impinge[s] on personal rights protected

by the Constitution.’” Id. (quoting Cleburne Living

Center, 473 U.S. at 440); Romer v. Evans, 517 U.S. 620,

631 (1996) (“[I]f a law neither burdens a fundamental

right nor targets a suspect class, we will uphold the

legislative classification so long as it bears a rational

relation to some legitimate end.”). In applying the

rational basis test:

Above all, a court should spurn any attempt

to turn rational-basis review into a debate

over the wisdom, eloquence, or efficacy of the

law in question. As its name would suggest,

rational-basis review should focus solely on

the rationality of the law or state action.

Should we determine that the State has

invoked a legitimate governmental purpose

and, in enforcing its law, has charted a course

that is “rationally related” to it, “our inquiry

is at an end.”

Estes, 546 S.W.3d at 698 (quoting FCC v. Beach

Commc’ns, Inc., 508 U.S. 307, 313–14 (1993)).

Is a legitimate governmental interest served by §

42.07(a)(7)? As discussed above, the conduct regulated

by § 42.07(a)(7) is roughly equivalent to the conduct

regulated by § 42.07(a)(4), the telephone harassment

statute—at issue in Scott. In Scott, we noted that the

prohibited conduct—making repeated telephone communications in a manner reasonably likely to harass,

annoy, alarm, abuse, torment, embarrass, or offend—

”invades the substantial privacy interests of another

in an essentially intolerable manner.” Scott, 322

S.W.3d at 668–69, 670. The State has an interest in

vindicating the rights of the people which it serves and

an interest in protecting the public welfare. See State

v. Rhine, 297 S.W.3d 301, 306 (Tex. Crim. App. 2009)

16a

(“The legislature may enact laws that enhance the

general welfare of the state[.]”); Williams v. State,

176 S.W.2d 177, 182 (Tex. Crim. App. 1943) (“the

lawmaking bodies of each State pass laws to protect

the peace, health, happiness, and general welfare of

society, and of the people as a whole.”). These interests

are legitimate, and § 42.07(a)(7) serves these interests.

Is § 42.07(a)(7) rationally related to serving those

interests? Sending repeated electronic communications in a manner reasonably likely to harass, annoy,

alarm, abuse, torment, embarrass, or offend would indeed

invade the substantial privacy interests of another in

an essentially intolerable manner. Undoubtedly, if the

idea is to protect the people from having their privacy

invaded in such a way, one of the best ways to do that

is to punish those who violate that privacy interest and

deter those who would. The means chosen by the

Legislature further the interest.

Thus, § 42.07(a)(7) is rationally related to a legitimate governmental interest. As for whether the statute

is unconstitutionally vague, because § 42.07(a)(7) does

not regulate speech and therefore “does not implicate

the free-speech guarantee of the First Amendment,”

Appellant, “in making his vagueness challenge to that

statutory subsection, was required to show that it was

unduly vague as applied to his own conduct. He has

not done that. Therefore, his vagueness challenge

fails.” See Scott, 322 S.W.3d at 670–71. We hold that §

42.07(a)(7), the electronic harassment statute, is not

facially unconstitutional.

We sustain the State’s second ground for review.

17a

VIII—Conclusion

Since § 42.07(a)(7) does not regulate speech, and

therefore does not implicate the free-speech guarantee

of the First Amendment, the statute is not susceptible

to an overbreadth challenge. Thus, we need not

address whether Appellant preserved his overbreadth

issue for appellate review. As a regulation of nonspeech conduct, § 42.07(a)(7) is not facially unconstitutional because it is rationally related to a legitimate

governmental interest. The question of whether the

statute is vague will have to wait for a proper

as-applied challenge.

We reverse the judgment of the court of appeals and

remand to that court for proceedings consistent with

this opinion.

Delivered: April 6, 2022

Publish

18a

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

————

No. PD-1123-19

————

EX PARTE CHARLES BARTON, Appellant

————

On State’s Petition for Discretionary Review

From the Second Court of Appeals

Tarrant County

————

YEARY, J., filed a concurring opinion.

I agree with the Court and join its opinion. The

statute at issue here protects citizens from harassment—

from being forced and compelled to endure the delivery

of repeated electronic communications sent to them in

a manner reasonably likely to harass, annoy, alarm,

abuse, torment, embarrass or offend another, and with

the specific intent to do just that to them.1 The conduct

Our Texas harassment law was enacted as part of the 1974

Penal Code. Acts 1973, 63rd Leg., ch. 399, § 1, p. 883, eff. Jan. 1,

1974. Since then, it has been amended nine times. See TEX. PENAL

CODE § 42.07 (amended in 1983, 1993, 1994, 1995, 1999, 2001,

2013, 2017, and 2021).

Appellant in this case was charged by information with

committing nine separate counts of harassment. The offenses

were alleged to have occurred on or about dates between August

25, 2012, and November 16, 2012. During that time frame, the

applicable harassment statute provided that:

[a] person commits an offense if, with intent to harass,

annoy, alarm, abuse, torment, or embarrass another,

he:

19a

covered by the law applicable in this case appears to

me to be limited in kind to instances in which

harassing communications are directed and targeted

specifically at an individual.2 That the law would seek

to defend private citizens from such targeted harassment is no more surprising than that it would seek to

protect them from stalking, offensive touching, or assault.

With these additional thoughts, I join the Court’s

opinion.

FILED: April 6, 2022

PUBLISH

***

(7) sends repeated electronic communications in a

manner reasonably likely to harass, annoy, alarm,

abuse, torment, embarrass, or offend another.

See Acts 2001, 77th Leg., ch. 1222, § 1, p. 2795, eff. Sept. 1, 2001

(current version at TEX. PENAL CODE § 42.07(a)(7)).

Subsection (b) of our harassment law, during the relevant

time frame, provided the following definition of “electronic

communication”:

[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) a communication initiated by electronic mail,

instant message, network call, or facsimile

machine; and

(B) a communication made to a pager.

See Acts 2001, 77th Leg., ch. 1222, § 1, p. 2795, eff. Sept. 1, 2001

(current version at TEX. PENAL CODE § 42.07(b)).

20a

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

————

No. PD-1123-19

————

EX PARTE CHARLES BARTON, Appellant

————

ON STATE’S PETITION FOR DISCRETIONARY

REVIEW FROM THE SECOND COURT OF

APPEALS TARRANT COUNTY

————

KELLER, P.J., filed a dissenting opinion in which

KEEL, J., joined.

Suppose a citizen, unhappy with an opinion from

this Court, sent repeated emails to a group of likeminded citizens, saying “Texas is in trouble” and “This

is arguably the most devastating ruling I have ever

received from a court” and “It’s time to get serious and

get on the phone, write letters, etc to EVERYONE

YOU KNOW to make them aware of what’s happening. Name names on this court! If this stands we lose

Texas. It’s do or die this time.” Has that citizen

committed a crime? Under the Court’s decision today,

the answer is “Yes.” At the risk of being prosecuted

myself for violating § 42.07(a)(7) of the Texas Penal

Code, let me say here that the people of Texas should

be alarmed by this holding.

The Court holds today that the “electronic communications” subsection of the Texas harassment statute

“does not implicate the First Amendment’s freedom of

speech protections” because the conduct that it regulates is non-speech conduct. I cannot agree. The term

21a

“electronic communications” alone suggests that the

regulated conduct is speech, but the statutory definition of the term makes it clear that the regulated

conduct is indeed speech. The statute defines “electronic communications” broadly, and the mens rea of

the statute includes intent to “annoy,” “alarm,” or

“embarrass” another. The statute encompasses a vast

amount of speech that is protected by the First

Amendment. And although I have been critical of Scott

v. State1 in the past, the statute in this case is far

broader than the telephone harassment statute, and

we need not overrule Scott to find the statute here to

be unconstitutional.

Section 42.07(a)(7) provides that a person commits

an offense if:

with intent to harass, annoy, alarm, abuse,

torment, or embarrass another, he. . . sends

repeated electronic communications in a

manner reasonably likely to harass, annoy,

alarm, abuse, torment, embarrass, or offend

another.2

“Electronic communication” is defined expansively

to mean:

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.3

“Electronic communication” includes “a communication initiated by electronic mail, instant message,

322 S.W.3d 662 (Tex. Crim. App. 2010).

TEX. PENAL CODE § 42.07(a)(7) (2011).

Id. § 42.07(b)(1).

22a

network call, communication tool, or a facsimile

machine”4 and “a communication made to a pager.”5

A transfer of signals, writing, images, sounds, or data

by an “electromagnetic system” necessarily includes

use of the internet. While the telephone harassment

statute was limited to communications over the

telephone, the electronic-communications statute is

much more expansive, encompassing anything that

could be thought of as an electronic communication.

But the breadth of the electronic-communications

statute does not derive solely from the variety of

electronic devices that may deliver communications or

the variety of formats in which communications may

occur. It also derives from the scope of the intended

audience. Telephone conversations are, at least most

of the time, limited to one individual communicating

with another. But the internet opens up very public

avenues of communication. Message boards, blogs,

and internet news articles can be seen by the entire

world. Depending on the privacy settings, Facebook

posts can be seen by a large assortment of people. Then

there are Twitter, Instagram, Snapchat, Tik Tok, and

many other social networking platforms.

Since most communications over the phone are oneon-one, they are in some sense private, and although

there are ways to block at least some types of

unwanted calls, in some sense a telephone user might

be considered a “captive audience” for harassing telephone communications. Privacy and “captive audience”

rationales might allow for greater leeway in regulating

telephone communications.6 But when those ration4

Id. § 42.07(b)(1)(A).

Id. § 42.07(b)(2)(B).

See Cohen v. California, 403 U.S. 15, 21-22 (1971) (referring

to “substantial privacy interests . . . being invaded in an essen-

23a

ales are absent, we should be especially leery of

punishing speech. As the Supreme Court explained in

Cohen v. California: “The ability of government,

consonant with the Constitution, to shut off discourse

solely to protect others from hearing it is . . . dependent

upon a showing that substantial privacy interests are

being invaded in an essentially intolerable manner.

Any broader view of this authority would effectively

empower a majority to silence dissidents simply as a

matter of personal predilections.”7

The Court suggests that we need not reach the issue

of whether the statute can be upheld under the Cohen

privacy rationale because the electronic-communications statute is not aimed at speech. I disagree. The

Court begins with the fact that it is possible to find

some kernel of expression in almost every activity a

person undertakes. But the electronic-communications statute is not concerned with just any activity—

it is concerned with communications. And the

“electronic” methods of delivering communications—

including the internet and social media platforms—

are mediums for delivering speech. Given the inherently communicative aspect of electronic communications,

at least as a general matter, the Court errs to engage

in an analysis of whether otherwise non-speech conduct constitutes expression.8 The “intent to convey a

particularized message” test for determining whether

tially intolerable manner” and “the special plight of the captive

auditor”).

Id. at 21.

See Ex parte Thompson, 442 S.W.3d 325, 334-36 (Tex. Crim.

App. 2014) (no intent to convey a particularized message required

for inherently expressive conduct such as parades, paintings, and

photographs) (discussing Hurley v. Irish–American Gay, Lesbian

and Bisexual Group, 515 U.S. 557 (1995)).

24a

conduct that is ordinarily non-speech is actually expressive has no application to something that is

ordinarily speech or expression.9

The Court makes much of the fact that the

electronic-communications statute encompasses the

mere sending of data, and it concludes that the

repeated sending of data could be meaningless to an

individual. Someone could send emails to flood another

person’s inbox. The emails could contain meaningless

gibberish. But it is not enough to say that it is possible

to violate a statute by conduct that does not implicate

the First Amendment, if under an overbreadth analysis, the statute reaches a substantial amount of First

Amendment conduct in relation to its legitimate sweep.10

In Thornhill v. Alabama, for example, an antiloitering statute made it an offense to loiter around or

picket a business with intent to influence or induce

others not to patronize the business.11 Under the

Id.

See See Thornhill v. Alabama, 310 U.S. 88, 91, 99-100 (1940)

(loitering/picketing at a business); State v. Johnson, 475 S.W.3d

860, 873 (Tex. Crim. App. 2015) (flag desecration).

Thornhill, supra at 91. Specifically, the Alabama statute

provided that it was an offense to:

go near to or loiter about the premises or place of

business of any other person, firm, corporation, or association of people, engaged in a lawful business, for the

purpose, or with intent of influencing, or inducing

other persons not to trade with, buy from, sell to, have

business dealings with, or be employed by such persons, firm, corporation, or association, or . . . [to] picket

the works or place of business of such other persons,

firms, corporations, or associations of persons, for the

purpose of hindering, delaying, or interfering with or

injuring any lawful business or enterprise of another.

Id.

25a

language of the Alabama statute, it appears that a

criminal violation could occur if a person physically

blocked entry into a business. Physically blocking

entry would not be speech protected under the First

Amendment. But the Supreme Court nevertheless

found the statute to be overbroad because its language

“comprehend[ed] every practicable method whereby

the facts of a labor dispute may be publicized in the

vicinity of the place of business of an employer.”12

And in State v. Johnson, we acknowledged that

“intentionally or knowingly damaging a United States

flag is not inherently expressive” and that “a statute

that proscribes such conduct will at least theoretically

apply to some circumstances that do not implicate the

First Amendment.”13 But we pointed out that “[m]ost

conduct that falls within the provisions of the statute

and that would come to the attention of the authorities

would constitute protected expression.”14 We concluded

that the flag desecration statute was unconstitutionally overbroad because it, “by its text and in actual

fact, prohibit[ed] a substantial amount of activity

that is protected by the First Amendment, judged in

relation to its legitimate sweep.”15

If we look at the electronic-communications statute’s

actual sweep, we can see that its language encompasses a truly enormous amount of speech. This is so

even accounting for the requisite intent to harass,

annoy, alarm, abuse, torment, or embarrass. As the

examples at the beginning of this opinion illustrate,

alarming someone could be the point of the commu12

Id. at 100.

Johnson, 475 S.W.3d at 873.

Id. at 876.

Id. at 882.

26a

nication. And so could annoying and embarrassing.

One can look as far back as the parable of the unjust

judge in the Bible to see an example of a persistent

woman who finally gets relief from an unjust judge so

that she will stop bothering him.16 As for intent to

embarrass, one could look to Andrew Breitbart’s

disclosure of Anthony Weiner’s indiscretions and

Breitbart’s subsequent follow-ups on that story.17

Often, the intent specified in the statute will be a

legitimate purpose of the communication. The First

Amendment protects a great deal of speech that is

purposefully annoying, alarming, or embarrassing.18

What about the Scott case? First, Scott said that the

harassing phone calls would be essentially noncommunicative “in the usual case.”19 Scott did not hold

that the harassing conduct at issue was inherently

nonspeech; it held that it was usually nonspeech.20 But

Luke 18:1-5.

See https://www.npr.org/2011/06/07/137042268/looking-atbreitbarts-role-in-weiners-scandal.

See Coates v. City of Cincinnati, 402 U.S. 611, 615 (1971)

(“The First and Fourteenth Amendments do not permit a State to

make criminal the exercise of the right of assembly simply

because its exercise may be ‘annoying’ to some people. If this were

not the rule, the right of the people to gather in public places for

social or political purposes would be continually subject to

summary suspension through the good-faith enforcement of a

prohibition against annoying conduct.”); Long v. State, 931

S.W.2d 285, 290 n.4 (Tex. Crim. App. 1996) (“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.”).

322 S.W.3d at 669-70 (saying it twice).

Scott did not create an alternative holding when it held that

harassing phone calls under the statute were not protected by the

27a

the “usual case” in Scott was based narrowly on the

use of a telephone, which ordinarily involves a private

one-on-one communication. The electronic-communications statute is much broader, involving not only

myriad different methods of conveying electronic communications but also involving an expanded audience—in

many cases including everyone who has access to the

internet or to a particular social media app.

Moreover, the Scott opinion explicitly contemplated

that the recipient of the call would be the target of the

actor’s intent to harass, annoy, alarm, abuse, torment,

or embarrass.21 But with many forms of electronic

communications—e.g. an internet news article, a blog

post, a message board post, or a social media post—

there will usually be a great number of recipients of

the communication who are not targets of the actor’s

harassing intent. In fact, it would often be unnecessary for the target of the actor’s intent to even receive

or read the electronic communication. When information about the target is disclosed in such a public

manner, and when that information is what causes the

First Amendment because the conduct invaded privacy interests

in an intolerable manner. Rather, it created a supplemental

holding—that in the “not usual” case the conduct was still not

protected by the First Amendment because the conduct was an

intolerable intrusion on privacy. See id. at 670 (“To the extent

that the statutory subsection is susceptible of application to

communicative conduct, it is susceptible of such application only

when that communicative conduct is not protected by the First

Amendment because, under the circumstances presented, that

communicative conduct invades the substantial privacy interests

of another (the victim) in an essentially intolerable manner.”).

Id. at 669 (“First, the text requires that the actor have the

specific intent to harass, annoy, alarm, abuse, torment, or

embarrass the recipient of the telephone call.”).

28a

target to be embarrassed or annoyed or alarmed, that

information is speech.

And our later opinion in Wilson v. State22 retreated

from Scott in two respects: (1) by rejecting the notion

that the term “repeated” was limited to situations that

could be termed a single criminal episode,23 and (2) by

rejecting the notion that a facially legitimate purpose

for a call negated having the requisite intent to harass,

annoy, alarm, abuse, torment, or embarrass.24 Even if

the Wilson opinion’s retreat in these two respects did

not ultimately invalidate the conclusion in Scott, that

retreat undermines any extension of the reasoning in

Scott to the broader electronic-communications statute.

I strongly disagree with the Court’s conclusion that

the electronic-communications statute does not implicate the First Amendment. It follows that I also

disagree with the Court’s conclusion that the rational

basis test provides the appropriate framework for

evaluating the constitutionality of the statute. I would

conduct an overbreadth analysis under the First

Amendment and resolve whether the statute punishes

a substantial amount of protected speech in relation to

its legitimate sweep. Because the Court does not

answer that question, I will say here only that the

breadth of the statute convinces me that the answer

is “yes.”

I respectfully dissent.

Filed: April 6, 2022

Publish

448 S.W.3d 418 (Tex. Crim. App. 2014).

Id. at 422-24.

Id. at 425-26.

29a

APPENDIX B

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

————

No. PD-0469-19

————

EX PARTE NATHAN SANDERS, Appellant

————

ON APPELLANT’S PETITION FOR

DISCRETIONARY REVIEW FROM THE SEVENTH

COURT OF APPEALS LUBBOCK COUNTY

————

WALKER, J., delivered the opinion of the Court, in

which HERVEY, RICHARDSON, YEARY, and NEWELL, JJ.,

joined. YEARY, J., filed a concurring opinion. KELLER,

P.J., filed a dissenting opinion, in which KEEL, J.,

joined. SLAUGHTER and MCCLURE, JJ., dissented.

————

OPINION

In Scott v. State, we held that § 42.07(a)(4) of the

Penal Code, the telephone harassment statute, does

not implicate the freedom of speech protections of the

First Amendment of the United States Constitution

because it prohibits non-speech conduct. 322 S.W.3d

662, 669–70 (Tex. Crim. App. 2010), disavowed on

other grounds by Wilson v. State, 448 S.W.3d 418, 423

(Tex. Crim. App. 2014). In the case before us today, we

clarify and reaffirm our holding in Scott. Following

Scott’s precedent, we hold that § 42.07(a)(7) of the

Penal Code, the electronic harassment statute, also

fails to implicate the First Amendment’s freedom of

30a

speech protections because it too prohibits non-speech

conduct. We affirm the judgment of the court of

appeals upholding § 42.07(a)(7) against Appellant’s

First Amendment challenge.

I—Background

Nathan Sanders, Appellant, was charged with

violating Penal Code § 42.07(a)(7), the electronic

harassment statute, which provides:

(a) A person commits an offense if, with

intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

(7) sends repeated electronic communications in a manner reasonably likely to harass,

annoy, alarm, abuse, torment, embarrass, or

offend another.

Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec.

42.07, 1973 Tex. Gen. Laws 883, 956–57 (amended

2013)1 (current version at TEX. PENAL CODE Ann.

§ 42.07(a)(7)).2 Appellant filed a pre-trial application

Appellant’s case is governed by the 2013 version of the

electronic harassment statute. Accordingly, while we will

reference the statute with its current citation, this opinion refers

to the 2013 version.

“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) a communication initiated by electronic mail,

instant message, network call, or facsimile machine;

and

(B) a communication made to a pager.

TEX. PENAL CODE Ann. § 42.07(b)(1).

31a

for habeas corpus relief on the basis that the statute

was unconstitutionally overbroad. The trial court

denied relief, and the court of appeals affirmed. Ex

parte Sanders, No. 07-18-00335-CR, 2019 WL 1576076,

at *1 (Tex. App.—Amarillo Apr. 8, 2019) (mem. op., not

designated for publication). The court of appeals determined that, for First Amendment purposes, § 42.07(a)(7)

was the same as § 42.07(a)(4) which we upheld against

a similar First Amendment challenge in Scott. Id. at

*2–3. The appellate court concluded that Scott was

controlling and rejected Appellant’s First Amendment

challenge. Id. at *3–4.

We granted Appellant’s petition for discretionary

review which argues that § 42.07(a)(7) violates the

First Amendment and that Scott should be overruled.3

II—Appellant’s Pre-Trial Writ

Before we address the substance of Appellant’s

challenge, we begin with the State’s threshold argument that Appellant’s ground for review is not

properly before us. The State points out that Appellant

did not raise Scott before the trial court in his pre-trial

application for writ of habeas corpus. The State also

faults Appellant for failing to make a proper First

Amendment overbreadth argument in his pre-trial

application. As the State sees it, Appellant’s ground

for review is not adequately presented, and any

Appellant’s ground for review specifically states:

Texas Penal Code section 42.07(a)(7) is a content-based

restriction that restricts a real and substantial amount

of speech as protected by the First Amendment; speech

which invades privacy interests of the listener has

never been held by the United States Supreme Court

to be a category of unprotected speech.

32a

opinion on the constitutionality of § 42.07(a)(7) or

regarding Scott would be advisory.

It is well-established that a decision of the trial court

may be affirmed if it is correct on any applicable theory

of law—even if that theory was not presented to the

trial court. Romero v. State, 800 S.W.2d 539, 543 (Tex.

Crim. App. 1990); Penry v. State, 903 S.W.2d 715, 750

n.34 (Tex. Crim. App. 1995). It is also well-established

that “[i]n our discretionary review capacity we review

‘decisions’ of the courts of appeals.” Stringer v. State,

241 S.W.3d 52, 59 (Tex. Crim. App. 2007) (quoting Lee

v. State, 791 S.W.2d 141, 142 (Tex. Crim. App. 1990));

TEX. R. APP. P. 66.1. Thus, it is not dispositive that a

party may not have preserved an issue in the trial

court where the court of appeals properly addressed

the issue, and we granted discretionary review of it.

Gallups v. State, 151 S.W.3d 196, 199 n.3 (Tex. Crim.

App. 2004).

The court of appeals affirmed the trial court, finding

that § 42.07(a)(7) is constitutional based on Scott.

Appellant challenges the court of appeals’s decision

and its underlying basis in Scott. Scott was properly

addressed by the court of appeals. Scott’s holding was

relevant to § 42.07(a)(7), several other courts of appeals

that considered the constitutionality of § 42.07(a)(7)

relied on Scott, and both parties argued the applicability of Scott in their respective appellate briefs.

Accordingly, Appellant’s ground for review is properly

before us, regardless of whether Appellant’s pre-trial

application raised Scott or presented an adequate

First Amendment overbreadth argument.

33a

III—Scott v. State

The court of appeals, following the lead of several

other appellate courts,4 upheld § 42.07(a)(7) by relying

upon Scott v. State. In Scott, the defendant argued that

§ 42.07(a)(4), the telephone harassment statute, is

unconstitutionally “vague and overbroad” in violation

of the First Amendment. Scott, 322 S.W.3d at 665.

This statute provided:

(a) A person commits an offense if, with

intent to harass, annoy, alarm, abuse, torment, or embarrass another, he:

(4) causes the telephone of another to ring

repeatedly or makes repeated telephone

communications anonymously or in a manner

reasonably likely to harass, annoy, alarm,

abuse, torment, embarrass, or offend another[.]

Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec.

42.07, 1973 Tex. Gen. Laws 883, 956–57 (amended

2001) (current version at TEX. PENAL CODE Ann.

§ 42.07(a)(4)). We concluded that the 2001 version of

§ 42.07(a)(4) is not susceptible to being considered

communicative conduct protected by the First Amendment because the statute criminalized harassing

conduct that, although it may include spoken words,

was essentially noncommunicative. Scott, 322 S.W.3d

Lebo v. State, 474 S.W.3d 402, 408 (Tex. App.—San Antonio

2015, pet. ref’d); Ex parte Ogle, No. 03-18-00207-CR, 2018 WL

3637385, at *7 (Tex. App.—Austin Aug. 1, 2018, pet. ref’d) (mem.

op., not designated for publication); Ex parte Reece, No. 11-1600196-CR, 2016 WL 6998930, at *3 (Tex. App.—Eastland Nov.

30, 2016, pet. ref’d) (mem. op., not designated for publication);

Blanchard v. State, No. 03-16-00014-CR, 2016 WL 3144142, at

*3–4 (Tex. App.—Austin June 2, 2016, pet. ref’d) (mem. op., not

designated for publication).

34a

at 669–70. Furthermore, we determined that “persons

whose conduct violates § 42.07(a)(4) will not have an

intent to engage in the legitimate communication of

ideas, opinions, or information; they will have only the

intent to inflict emotional distress for its own sake.”

Id. at 670. We held that § 42.07(a)(4) did not implicate

the First Amendment, and, accordingly, Scott failed to

show it was unconstitutionally vague on its face. Id. at

669, 670–71.

Additionally, we noted that while the First Amendment “generally protects the free communication and

receipt of ideas, opinions, and information,” the “State

may lawfully proscribe communicative conduct (i.e.,

the communication of ideas, opinions, and information) that invades the substantial privacy interests

of another in an essentially intolerable manner.” Id.

at 668–69. Therefore, if the conduct was, in fact,

communicative:

To the extent that the statutory subsection is

susceptible of application to communicative

conduct, it is susceptible of such application

only when that communicative conduct is not

protected by the First Amendment because,

under the circumstances presented, that communicative conduct invades the substantial

privacy interests of another (the victim) in an

essentially intolerable manner.

Id. at 670. In other words, communicative conduct—

speech—that invades the substantial privacy interests

of another in an essentially intolerable manner is

In 2013, § 42.07(a) was amended to change “he” to “the

person”. Act of May 22, 2013, 83d Leg., R.S., ch. 1278, § 1, 2013

Tex. Gen. Laws 3231, 3231 (current version at TEX. PENAL CODE

Ann. § 42.07(a)).

35a

outside the protection of the First Amendment. This

particular discussion in Scott is the crux of Appellant’s

argument before us today.

IV—Scott and § 42.07(a)(7)

In considering Appellant’s case below, the court of

appeals determined that the text of the electronic

harassment statute, § 42.07(a)(7), is—for the purposes

of First Amendment analysis— identical to § 42.07(a)(4):

As others have pointed out . . . all subsections

of section 42.07(a) require the same specific

intent, that “to harass, annoy, alarm, abuse,

torment, or embarrass another.” And while

subsection (a)(4) is violated when the actor

“makes” repeated telephone communications

and (a)(7) is violated when the actor “sends”

repeated electronic communications, both

subsections require for guilt that the repeated

communications occur “in a manner reasonably likely to harass, annoy, alarm, abuse,

torment, embarrass, or offend another.”

Sanders, 2019 WL 1576076, at *3. Appellant also

notes that although Scott was concerned with the

telephone harassment statute instead of the electronic

harassment statute, “the rationale is the same.”6

We agree with the court of appeals’s reliance on

Scott. For First Amendment purposes, Scott’s holding

that § 42.07(a)(4), the telephone harassment statute,

does not implicate the First Amendment should apply

equally to § 42.07(a)(7), the electronic harassment

statute. Accordingly, if Scott is still good law, then §

42.07(a)(7) does not implicate the First Amendment.

Pet’r’s Br. 19.

36a

V—Should Scott be Overruled?

Appellant argues that Scott should be reconsidered

because our opinion in that case “created, ex nihilo, a

new category of unprotected speech: speech which,

for purposes of inflicting emotional distress, invades

substantial privacy interests.”7 Appellant would have

us overrule Scott and, in the absence of Scott, hold that

§ 42.07(a)(7) is unconstitutional.

“We ordinarily observe the doctrine of stare decisis

‘to promote judicial efficiency and consistency, encourage reliance on judicial decisions, and contribute to

the integrity of the judicial process.’” Garcia v. State,

614 S.W.3d 749, 754 (Tex. Crim. App. 2019) (quoting

Paulson v. State, 28 S.W.3d 570, 571 (Tex. Crim. App.

2000)). Accordingly, we “should not frivolously overrule established precedent.” Ex parte Thomas, 623

S.W.3d 370, 381 (Tex. Crim. App. 2021). However,

“stare decisis is not an inexorable command.” Id.

“While there is a strong presumption in favor of

established law,” we may reconsider our precedent

“when, for instance, the original rule or decision was

flawed from the outset, produces inconsistent, unjust,

or unanticipated results or places unnecessary burdens on the system.” Id. In other words, “we are

not constrained to follow precedent that is wrongly

decided or unworkable.” Id. at 382. Adhering to such

precedent does not further stare decisis’s goals of

promoting judicial efficiency and consistency, encouraging reliance upon judicial decisions, or contributing

to the integrity of the judicial process. Id. at 381–82.

Thus, while “precedent warrants ‘deep respect as

embodying the considered views of those who have

come before’ . . . ‘stare decisis [is not] supposed to be

Pet’r’s Br. 19.

37a

the art of methodically ignoring what everyone knows

to be true.’” Id. at 382 (quoting Ramos v. Louisiana,

140 S.Ct. 1390, 1404–05 (2020)).

VI—The Core Holding of Scott

Appellant argues that Scott should be overruled

because: (1) in Stevens, the Supreme Court emphasized that courts are not free to declare categories of

unprotected speech;8 (2) in Alvarez, the Supreme

Court listed the categories of unprotected speech,

which did not include intentional harassment;9 and (3)

Appellant points to the following admonition in Stevens: “Our

decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech

outside the scope of the First Amendment.” United States v.

Stevens, 559 U.S. 460, 472 (2010) (referring to New York v. Ferber,

458 U.S. 747, 764 (1982) (holding child pornography outside the

protection of the First Amendment)); see also United States v.

Alvarez, 567 U.S. 709, 722 (2012) (“Although the First Amendment stands against any ‘freewheeling authority to declare

new categories of speech outside the scope of the First Amendment,’. . . .”) (quoting Stevens, 559 U.S. at 472)).

In Alvarez, the Supreme Court listed historical categories of

speech that are outside the protection of the First Amendment:

content-based restrictions on speech have been permitted, as a general matter, only when confined to the few

“‘historic and traditional categories [of expression] long

familiar to the bar.’” . . . Among these categories are

advocacy intended, and likely, to incite imminent

lawless action . . . obscenity . . . defamation . . . speech

integral to criminal conduct . . . so-called “fighting

words,” . . . child pornography . . . fraud . . . true

threats . . . and speech presenting some grave and

imminent threat the government has the power to

prevent . . . although a restriction under the last

category is most difficult to sustain . . . . These

categories have a historical foundation in the Court’s

free speech tradition. The vast realm of free speech and

thought always protected in our tradition can still

38a

in Scott, we relied upon dicta to declare a category of

speech outside the protection of the First Amendment.

As discussed above, in Scott we noted that “[t]he

State may lawfully proscribe communicative conduct

(i.e., the communication of ideas, opinions, and information) that invades the substantial privacy interests

of another in an essentially intolerable manner.” Scott,

322 S.W.3d at 668–69 (citing Cohen v. California, 403

U.S. 15, 21 (1971)).10 And if the conduct was, in fact,

communicative:

To the extent that the statutory subsection is

susceptible of application to communicative

conduct, it is susceptible of such application

only when that communicative conduct is not

protected by the First Amendment because,

under the circumstances presented, that communicative conduct invades the substantial

privacy interests of another (the victim) in an

essentially intolerable manner.

Id. at 670.

Appellant takes these statements from Scott to be

our holding, and he contends that we improperly

created a category of speech outside the protection of

the First Amendment. In response, the State begins

its brief noting that “the core holding of Scott” was that

“harassment . . . covered by Texas Penal Code 42.07 is

non-communicative conduct that does not implicate

the First Amendment.”11 In his Reply Brief, Appellant,

thrive, and even be furthered, by adherence to those

categories and rules.

Alvarez, 567 U.S. at 717–18.

Appellant criticizes our citation to Cohen as reliance on dicta.

State’s Br. on the Merits 1.

39a

again quoting the above language in Scott, complains

that “[t]he State even gets Scott’s holding wrong.”12

We disagree. A plain reading of Scott shows that

we did not hold that the conduct proscribed by

§ 42.07(a)(4) constituted speech categorically outside

the protection of the First Amendment. We held that

it was not speech at all.

In Scott, the State raised six grounds for review,

which we granted:

(1) Are subsections (a)(4) and (a)(7) of Texas

Penal Code § 42.07 unconstitutionally vague?

(2) Do subsections (a)(4) and (a)(7) of Texas

Penal Code § 42.07 implicate the First Amendment to the United States Constitution?

(3) Are the term “repeated” and the phrase

“in a manner reasonably likely to harass,

annoy, alarm, abuse, torment, embarrass, or

offend another,” which are both contained

within Texas Penal Code § 42.07(a)(4) and

(a)(7), unconstitutionally vague?

(4) Did the State’s allegation that appellant

left “voice mail messages” implicate Texas

Penal Code § 42.07(a)(7) in this case, and does

that phrase necessarily fall within the definition of “electronic communication” found at

Texas Penal Code § 42.07(b)(1)?

(5) If some part of Texas Penal Code § 42.07

is unconstitutionally vague, did the Court of

Appeals err by declaring it vague and acquitting appellant instead of applying a narrow

Pet’r’s Reply Br. 12–13.

40a

construction to the statute to avoid the

alleged vagueness?

(6) Has the Court of Appeals improperly determined that because subsections (a)(4) and

(a)(7) of Texas Penal Code § 42.07 allegedly

implicate the First Amendment and might

curtail protected speech those subsections are

vague, when the proper question should have

been whether the subsections are overbroad?

Scott, 322 S.W.3d at 667–68, n.9. However, we only

addressed two of those grounds. Id. at 670 (“Given our

disposition of the State’s second and fourth grounds

for review, we need not reach the State’s remaining

grounds for review. We dismiss them.”). We first

discussed the State’s fourth ground for review, which

argued that the court of appeals erred in addressing

the constitutionality of § 42.07(a)(7), the electronic

harassment statute. Id. at 668. The court of appeals

had found that the information language,13 alleging

that the defendant had left abusive and harassing

voicemail messages, fell within the statutory defini13

The defendant in Scott was charged by two informations. The

second information alleged that:

on or about the 12th Day of March, 2006, Samuel Scott,

hereinafter referred to as defendant, with intent to

harass, annoy, alarm, abuse, torment, and embarrass

Yvette Scott, hereinafter referred to complainant, did

make repeated telephone communications to the complainant in a manner reasonably likely to harass,

annoy, alarm, abuse, torment, embarrass and offend

the complainant, to wit: the defendant called the complainant repeatedly by telephone while intoxicated,

late at night, leaving abusive and harassing voice mail

messages.

Scott, 322 S.W.3d at 665.

41a

tion of electronic communication. Id. at 667. As a

result, the court of appeals considered the constitutionality of both § 42.07(a)(4) and (a)(7). See id. at 667.

We agreed with the State’s argument and sustained

the ground because the information tracked the language of § 42.07(a)(4), not (a)(7), and because the

statutory text of § 42.07(a)(4) seemed to cover ordinary

voice (and therefore voicemail), whereas the text of

(a)(7) seemed to cover non-telephonic messages such

as e-mail and instant messages. Id. at 668.

After sustaining that ground, we turned to the

State’s second ground for review, which argued “that

the court of appeals erred in concluding that §

42.07(a)(4) implicated the free-speech guarantee of the

First Amendment.” Id. at 668.14 It was important to

address “[t]he question of whether the statutory subsection implicate[d] the free-speech guarantee . . .

because if the statutory subsection does implicate the

free-speech guarantee, then Scott, in making his vagueness challenge, is relieved of the usual requirement of

showing that the statutory subsection was unduly

vague as applied to his conduct.” Id. We then proceeded “[t]o answer the question of whether § 42.07(a)(4)

implicates the free-speech guarantee of the First

Amendment[.]” Id. After examining the text of the

statute,

we conclude[d] that it is not susceptible of

application to communicative conduct that is

protected by the First Amendment. In other

We note that the State’s second ground in Scott also

challenged the court of appeals’s constitutionality ruling as to

§ 42.07(a)(7). Id. at 667–68 n.9. Due to our resolution of the

State’s fourth ground, the court of appeals’s decision regarding

§ 42.07(a)(7) was no longer at issue.

42a

words, the statutory subsection does not implicate the free-speech guarantee of the First

Amendment. . . . [W]e believe that the conduct

to which the statutory subsection is susceptible of application will be, in the usual case,

essentially noncommunicative, even if the

conduct includes spoken words.

Id. at 669–70 (emphasis added). Finally, returning to

the matter of vagueness, we ended our Scott opinion

by stating: “Because § 42.07(a)(4) does not implicate

the free-speech guarantee of the First Amendment,

Scott, in making his vagueness challenge to that

statutory subsection, was required to show that it was

unduly vague as applied to his own conduct.” Id. at

670–71 (emphasis added).

The core holding of our opinion in Scott is that the

conduct regulated by § 42.07(a)(4) is noncommunicative and does not implicate the free-speech guarantee

of the First Amendment. The core holding was not

that § 42.07(a)(4) regulates speech unprotected by

the First Amendment. A regulation involving nonprotected speech nevertheless still implicates the

First Amendment and can still be subject to First

Amendment scrutiny, as explained by the Supreme

Court in R.A.V. v. City of St. Paul, Minnesota:

We have sometimes said that these categories

of expression [obscenity, defamation, and

fighting words] are “not within the area of

constitutionally protected speech,” . . . or

that the “protection of the First Amendment

does not extend” to them . . . Such statements

must be taken in context, however, and are no

more literally true than is the occasionally

repeated shorthand characterizing obscenity

“as not being speech at all[.]” . . . What they

43a

mean is that these areas of speech can,

consistently with the First Amendment, be

regulated because of their constitutionally

proscribable content (obscenity, defamation,

etc.)—not that they are categories of speech

entirely invisible to the Constitution, so that

they may be made the vehicles for content

discrimination unrelated to their distinctively

proscribable content. Thus, the government

may proscribe libel; but it may not make the

further content discrimination of proscribing

only libel critical of the government.

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 383–84

(1992). The Supreme Court elaborated:

Our cases surely do not establish the proposition that the First Amendment imposes no

obstacle whatsoever to regulation of particular instances of such proscribable expression,

so that the government “may regulate [them]

freely,” . . . That would mean that a city

council could enact an ordinance prohibiting

only those legally obscene works that contain

criticism of the city government or, indeed,

that do not include endorsement of the city

government. Such a simplistic, all-or-nothingat-all approach to First Amendment protection

is at odds with common sense and with our

jurisprudence as well.

Id. at 384. The Supreme Court proceeded to hold that

the ordinance at issue in the case was facially invalid

under the First Amendment, although it regulated

“fighting words.” Id. at 381. Thus, simply because the

ordinance at issue covered unprotected speech did not

mean that the ordinance could not be subject to First

Amendment scrutiny. To the contrary, the Supreme

44a

Court applied First Amendment strict scrutiny because

(its coverage of “fighting words” notwithstanding) it

proscribed only those “fighting words” that insult or

provoke violence “on the basis of race, color, creed,

religion or gender.” Id. at 391. It did not prohibit

“fighting words” in connection with other ideas,

such as expressing hostility on the basis of political

affiliation, union membership, or homosexuality. Id.

Accordingly, the ordinance imposed a special prohibition on speakers who expressed views on disfavored

subjects. Id. This went beyond mere content discrimination to actual viewpoint discrimination. Id.

As illustrated by R.A.V., a statute that covers speech

in a category traditionally outside the protection of the

First Amendment nevertheless still implicates the

First Amendment. In the absence of speech, whether

protected or unprotected, the First Amendment is not

implicated. When we held in Scott that the conduct

regulated by § 42.07(a)(4) does not implicate the

First Amendment because the conduct governed by

§ 42.07(a)(4) is noncommunicative, we meant it. It is

not speech.

Therefore, the discussion Appellant complains of,

wherein we referred to the State’s ability to restrict

communications that invade another’s privacy interests in an essentially intolerable manner, was—at the

very least—a recognition of the legitimate governmental purpose to which the statute bears a rational

relationship. See Romer v. Evans, 517 U.S. 620, 631

(1996) (stating standard of review for upholding

statutes that neither burden a fundamental right nor

target a suspect class). At the most, we posed an

alternative theory to support our judgment that the

statute did not violate the First Amendment. But even

on that basis, it was not Scott’s holding, or even an

45a

alternative holding. Aside from the brief mention of

the theory, our disposition of the State’s second ground

for review in Scott was based squarely on our conclusion that § 42.07(a)(4) regulated non-speech conduct,

even if that conduct included the use of words. We did

not carve a category of speech out from the protections

of the First Amendment. Appellant’s retort in his

Reply Brief has it backwards—the State gets Scott’s

holding right.16

VII—Scott Was Not Wrongly Decided and Is Not

Unworkable

Our clarification of Scott’s holding—that the telephone

harassment statute, § 42.07(a)(4), regulates nonspeech conduct and therefore does not implicate the

First Amendment—puts to bed Appellant’s specific

reasons for overruling the case. But, as explained

We have previously suggested that an alternative holding

“could be viewed as mere dicta.” Brooks v. State, 957 S.W.2d 30,

33 (Tex. Crim. App. 1997). However, we have never explicitly held

as much. See Duran v. State, 492 S.W.3d 741, 754 n.1 (Tex. Crim.

App. 2016) (Yeary, J., concurring and dissenting) (“So far as I

know, this Court has yet to fashion a rule—one way or the other—

with respect to the precedential value of alternative holdings.”).

Our sister court, the Supreme Court of Texas, has clearly stated

that alternative holdings are binding. Ross v. St. Luke’s Episcopal

Hosp., 462 S.W.3d 496, 502 (Tex. 2015) (“[A]lternative holdings .

. . are . . . entitled to stare decisis treatment[.]”).

Whatever may be said regarding the precedential value of

alternative holdings, what is clear in this case is that the theory

stated in Scott—that if it were communicative conduct, “that

communicative conduct is not protected by the First Amendment

because . . . that communicative conduct invades the substantial

privacy interests of another (the victim) in an essentially intolerable manner”—was not even an alternative holding.

Contra Pet’r’s Reply Br., at 12 (“The State even gets Scott’s

holding wrong.”).

46a

above, a precedent may be overruled if it was wrongly

decided or has proven to be unworkable. Thomas, 623

S.W.3d at 382. Appellant is not the only one to suggest

that Scott was wrongly decided and should be reconsidered. See Scott, 322 S.W.3d at 671 (Keller, P.J.,

dissenting); Wilson, 448 S.W.3d at 426–27 (Keller,

P.J., concurring) (“[W]e ought to, when the issue is

raised again, re-evaluate our holding in [Scott].”);

Ex parte Reece, 517 S.W.3d 108, 110 (Tex. Crim. App.

2017) (Keller, P.J., dissenting to refusal of petition for

discretionary review) (“The second reason to grant

review is to re-examine Scott.”); Ogle v. State, 563

S.W.3d 912, 912 (Tex. Crim. App. 2018) (Keller, P.J.,

dissenting to refusal of petition for discretionary

review).

We conclude that Scott was neither wrongly decided

nor unworkable, and we decline the suggestion to overrule it. We find no fault in our holding that § 42.07(a)(4),

the telephone harassment statute, regulates nonspeech conduct and therefore does not implicate the

First Amendment.

“The First Amendment literally forbids the abridgment only of ‘speech[.]’” Texas v. Johnson, 491 U.S.

397, 404 (1989). However, the First Amendment’s

“protection does not end at the spoken or written

word.” Id. “[T]he Constitution looks beyond written or

spoken words as mediums of expression.” Hurley v.

Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515

U.S. 557, 569 (1995). For example, “[s]ymbolism is a

primitive but effective way of communicating ideas.”

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624,

632 (1943). Accordingly, “conduct may be ‘sufficiently

imbued with elements of communication to fall within

the scope of the First and Fourteenth Amendments[.]’”

47a

Johnson, 491 U.S. at 404 (quoting Spence v. Washington, 418 U.S. 405, 409 (1974)).

However, “[i]t is possible to find some kernel of

expression in almost every activity a person undertakes—

for example, walking down the street or meeting one’s

friends at a shopping mall—but such a kernel is not

sufficient to bring the activity within the protection of

the First Amendment.” City of Dallas v. Stanglin, 490

U.S. 19, 25 (1989); see also Barnes v. Glen Theatre,

Inc., 501 U.S. 560, 576 (1991) (Scalia, J., concurring)

(“[V]irtually every law restricts conduct, and virtually

any prohibited conduct can be performed for an

expressive purpose—if only expressive of the fact that

the actor disagrees with the prohibition.”). Thus,

the Supreme Court has rejected “the view that an

apparently limitless variety of conduct can be labeled

‘speech’ whenever the person engaging in the conduct

intends thereby to express an idea.” United States v.

O’Brien, 391 U.S. 367, 376 (1968). Instead, First

Amendment protection extends “only to conduct that

is inherently expressive.” Rumsfeld v. Forum for Acad.

& Institutional Rights, Inc., 547 U.S. 47, 66 (2006)

(FAIR). To determine “whether particular conduct

possesses sufficient communicative elements to bring

the First Amendment into play,” the question to ask is

“whether ‘an intent to convey a particularized message

was present, and whether the likelihood was great

that the message would be understood by those who

viewed it.’” Johnson, 491 U.S. at 404 (quoting Spence,

418 U.S. at 410–11)). But “a ‘particularized message’”

is not required, or else the freedom of speech “would

never reach the unquestionably shielded painting

of Jackson Pollock, music of Arnold Schöenberg, or

Jabberwocky verse of Lewis Carroll.” Hurley, 515 U.S.

at 569. The answer to the question oftentimes depends

on the circumstances surrounding the conduct. “[T]he

48a

context in which a symbol is used for purposes of

expression is important, for the context may give

meaning to the symbol.” Spence, 418 U.S. at 410.

Where the conduct does not have a significant

expressive element, then “the First Amendment is not

implicated by the enforcement of a [law] of general

application[.]” Arcara v. Cloud Books, Inc., 478 U.S.

697, 706–07 (1986). Such laws, applicable to “nonexpressive conduct,” do not “[have] anything to do with

the First Amendment.” See Virginia v. Hicks, 539 U.S.

113, 123 (2003) (holding that city policy authorizing

police to bar non-residents from low income housing

development and thereafter arrest individuals violating barment order for trespassing did not violate First

Amendment, even if trespasser sought to engage

in speech); Arcara, 478 U.S. at 706–07 (finding that

enforcement of statute authorizing closure of premises

used for prostitution did not violate First Amendment

as applied to bookstore; even though bookstore sold

books, such activity did not confer First Amendment

protection to prostitution activity occurring on the

premises). “Any other conclusion would lead to the

absurd result that any government action that had

some conceivable speech-inhibiting consequences,

such as the arrest of a newscaster for a traffic

violation, would require analysis under the First

Amendment.” Arcara, 478 U.S. at 708 (O’Connor, J.,

concurring).

Thus:

[N]onverbal expressive activity can be banned

because of the action it entails, but not

because of the ideas it expresses—so that

burning a flag in violation of an ordinance

against outdoor fires could be punishable,

49a

whereas burning a flag in violation of an

ordinance against dishonoring the flag is not.

R.A.V., 505 U.S. at 385.

Delineating and applying the above principles, the

Supreme Court has recognized a wide array of conduct

as expressive, including displaying a red flag “as a

sign, symbol, or emblem of opposition to organized

government[;]”17 saluting and not saluting the flag;18

conducting a silent sit-in;19 burning a draft card in

demonstration against the war and the draft;20 wearing black armbands to object to the hostilities in

Vietnam;21 displaying the flag upside down with a

“peace symbol” made of black tape affixed to the flag

to express that America stood for peace after the

Cambodian invasion and the Kent State massacre;22

camping in Lafayette Park and the National Mall to

call attention to the plight of the homeless;23 burning

the flag during a protest rally;24 nude dancing;25

Stromberg v. California, 283 U.S. 359, 369 (1931).

Barnette, 319 U.S. at 632–34, 642.

Brown v. Louisiana, 383 U.S. 131, 141–42 (1966).

O’Brien, 391 U.S. at 376.

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503,

504–06 (1969).

Spence, 418 U.S. at 409–10.

See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288,

293 (1984) (assuming, without deciding, that conduct was expressive).

Johnson, 491 U.S. at 406.

Barnes, 501 U.S. at 565–66.

50a

marching in a parade; organizing and choosing the

participants in a parade;27 and cross-burning.28

In comparison, the Supreme Court found the conduct in FAIR was not inherently expressive and thus

did not implicate the First Amendment. FAIR, 547

U.S. at 66. In that case, an association of law schools

and law school faculties, opposed to the military’s

policy on homosexuals, began restricting access to

military recruiters for on-campus interviews. Id. at 51.

In response, Congress enacted the Solomon Amendment which stripped federal funding from institutions

that denied access to military recruiters. Id. The law

schools and faculties sought a preliminary injunction

against the application of the Solomon Amendment,

arguing that the law put them to the choice of

exercising their First Amendment rights or ensuring

federal funding for their universities. Id. at 52–53.

Among other arguments, the Supreme Court “consider[ed] whether the expressive nature of the conduct

regulated by the statute brings that conduct within

the First Amendment’s protection.” Id. at 65 (emphasis

in original). The Supreme Court determined that:

Unlike flag burning, the conduct regulated by

the Solomon Amendment is not inherently

expressive. . . . [L]aw schools “expressed”

their disagreement with the military by treating military recruiters differently from other

recruiters. But these actions were expressive

only because the law schools accompanied

their conduct with speech explaining it. For

Hurley, 515 U.S. at 569–70.

Id. at 574–75.

Virginia v. Black, 538 U.S. 343, 360–61 (2003).

51a

example, the point of requiring military

interviews to be conducted on the undergraduate campus is not “overwhelmingly

apparent.” . . . An observer who sees military

recruiters interviewing away from the law

school has no way of knowing whether the law

school is expressing its disapproval of the

military, all the law school’s interview rooms

are full, or the military recruiters decided for

reasons of their own that they would rather

interview someplace else.

The expressive component of a law school’s

actions is not created by the conduct itself but

by the speech that accompanies it. The fact

that such explanatory speech is necessary is

strong evidence that the conduct at issue

here is not so inherently expressive that it

warrants protection. . . .

Id. at 66.

Similarly, in Carrigan, the Supreme Court considered a recusal provision in a Nevada governmental

ethics law that requires public officials to recuse

themselves from voting on, or advocating the passage

or failure of, a matter the official has a personal

interest in. Nev. Comm’n on Ethics v. Carrigan, 564

U.S. 117, 119, 121 (2011). The Nevada Supreme Court

determined that the law violated the First Amendment, finding that a legislator’s vote is protected

speech. Id. at 121.

Reversing, the United States Supreme Court

considered several arguments—including the contention raised by the concurrence “that legislators often

‘use their votes to express deeply held and highly

unpopular views, often at great personal or political

52a

peril.’” Id. at 126 (quoting id. at 133 (Alito, J., concurring)). Invoking the reasoning of FAIR, the Supreme

Court majority responded:

How do they express those deeply held views,

one wonders? Do ballots contain a check-oneof-the-boxes attachment that will be displayed to the public, reading something like

“( ) I have a deeply held view about this; ( )

this is probably desirable; ( ) this is the least

of the available evils; ( ) my personal view is

the other way, but my constituents want this;

( ) my personal view is the other way, but my

big contributors want this; ( ) I don’t have the

slightest idea what this legislation does, but

on my way in to vote the party Whip said vote

‘aye’”? There are, to be sure, instances where

action conveys a symbolic meaning—such as

the burning of a flag to convey disagreement

with a country’s policies . . . But the act of

voting symbolizes nothing. It discloses, to be

sure, that the legislator wishes (for whatever

reason) that the proposition on the floor be

adopted, just as a physical assault discloses

that the attacker dislikes the victim. But

neither the one nor the other is an act of

communication. Cf. [FAIR, 547 U.S. at 66]

(expressive value was “not created by the

conduct itself but by the speech that accompanies it”).

Id. at 126–27.

Turning to the conduct proscribed by § 42.07(a)(4),

is such conduct inherently expressive? See FAIR, 547

U.S. at 66. Is an intent to convey a particularized

message present? See Johnson, 491 U.S. at 404. Is the

likelihood great that the message would be understood

53a

by those who viewed it? See id. Because Appellant’s

challenge to the statute came pre-trial, and there is no

record evidence of conduct to examine for elements of

expression, we return to the statute’s literal text:

(a) A person commits an offense if, with

intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

(4) causes the telephone of another to ring

repeatedly or makes repeated telephone

communications anonymously or in a manner

reasonably likely to harass, annoy, alarm,

abuse, torment, embarrass, or offend another;

TEX. PENAL CODE Ann. § 42.07(a)(4); Boykin v. State,

818 S.W.2d 782, 785 (Tex. Crim. App. 1991) (“[W]e

necessarily focus our attention on the literal text of the

statute in question[.]”). The § 42.07(a)(4) offense has

three gravamen: causing the telephone of another to

ring repeatedly (a result of conduct offense); making

repeated telephone communications anonymously (a

nature of conduct offense); and making repeated

telephone communications in a manner reasonably

likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another (a nature of conduct offense).

See generally Price v. State, 457 S.W.3d 437, 441 (Tex.

Crim. App. 2015) (discussing gravamen of the offense).

Causing a telephone to ring repeatedly is not

inherently expressive; there is no intent to convey a

particularized message, nor is there any likelihood

that an observer would understand a message from

the conduct. See FAIR, 547 U.S. at 66; Johnson, 491

U.S. at 404.

As for the “makes repeated telephone communications anonymously” offense, we recognized in Scott

that “the text [of the statute] does not require that

54a

the actor use spoken words.” Scott, 322 S.W.3d at 669.

Repeated calls where the anonymous caller says nothing at all, or where the calls contain indistinct noise,

would constitute the making of “repeated telephone

communications.” An observer would not comprehend

any communicative message from those calls. See

Johnson, 491 U.S. at 404.

Finally, regarding the “makes repeated telephone

communications in a manner reasonably likely to

harass . . .” offense, the use of harassing, annoying,

alarming, abusive, tormenting, embarrassing, or offending words could easily show the calls were made in a

harassing, annoying, alarming, abusive, tormenting,

embarrassing, or offending manner. Again, however,

“the text [of the statute] does not require that the actor

use spoken words.” Scott, 322 S.W.3d at 669. Repeated

telephone communications can be made in a harassing,

annoying, alarming, abusive, tormenting, embarrassing,

or offending manner without any words used at all.

For example, if the telephone calls are consistently

repeated or made during particularly inconvenient

hours, such calls could very well be made in the

prohibited manner, regardless of the content of those

calls. And an observer, viewing such conduct, would

not understand the calls to be portraying a message.

See Johnson, 491 U.S. at 404.

The bare statutory conduct prohibited by § 42.07(a)(4)

is distinct from the expressive conduct recognized by

the Supreme Court. It does not involve symbols which

carry special symbolic meaning like the flag. See, e.g.,

Stromberg, 283 U.S. 359; Barnette, 319 U.S. 624;

Spence, 418 U.S. 405; Johnson, 491 U.S. 397. It does

not involve acts that communicate an idea in light of

societal context such as conducting a sit-in during the

midst of the Civil Rights Movement, burning a draft

55a

card as part of an anti-war protest during the Vietnam

War, or taping a peace sign to an upside down flag in

the aftermath of the Kent State massacre. See, e.g.,

Brown, 383 U.S. 131; O’Brien, 391 U.S. 367; Spence,

418 U.S. 405. It is not “closely akin to ‘pure speech’”

like wearing a black armband to show solidarity with

the anti-war movement. Tinker, 393 U.S. at 505–06.

It does not even occupy the outer limits of the First

Amendment’s protection where one would find nude

dancing that communicates a message of eroticism.

Barnes, 501 U.S. at 565–66.

Instead, statutory conduct covered by § 42.07(a)(4)

fails to express any ideas at all. Like law schools

requiring military recruiters to conduct their interviews on their undergraduate campus, or a legislator’s

vote, an observer viewing a person repeatedly make

telephone calls would not perceive any expressive

element by the calling alone. Is the caller trying to

annoy the person who he is calling? Or is the caller

sincerely trying to reach the person, wholly intending

to have a conversation? The same is true when the

observer views the conduct from the receiving end. An

observer would not perceive any expressive message

by witnessing a telephone ring repe

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