Amicus Curiae Brief — Charles Barton, Petitioner v. Texas

No. 22-430

In the Supreme Court of the United States

CHARLES BARTON and NATHAN SANDERS,

Petitioners,

v.

STATE OF TEXAS,

Respondent.

On Petition for Writ of Certiorari to the

Court of Criminal Appeals of Texas

Brief of Amicus Curiae Electronic Frontier

Foundation in Support of Petitioners

EUGENE VOLOKH

Counsel of Record

UCLA SCHOOL OF LAW

385 Charles E Young Dr. E

Los Angeles, CA 90095

(310) 206-3926

volokh@law.ucla.edu

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Table of Contents .......................................................... i

Table of Authorities ..................................................... ii

Interest of Amicus Curiae ........................................... 1

Summary of Argument ................................................ 1

Argument ..................................................................... 4

I. Texas’s Harassment Law, and Similar

State Laws, Wrongly Cover a Broad Range

of Fully Protected Speech...................................... 4

A. Criticism of Politicians .................................... 4

B. Criticism of Police Officers .............................. 7

C. Criticism of Religious Figures ......................... 9

D. Criticism of Political Activists ....................... 10

E. Criticism of Professionals or Businesses ...... 12

F. Criticism of Exes ............................................ 13

II. An Overbroad Harassment Statute Like

Texas’s Is Not Saved Simply Because It

Requires an “Intent to Harass”........................... 15

III. Unwanted Speech Said About a Person to

Willing Listeners Is Generally Protected ........... 17

Conclusion .................................................................. 19

ii

TABLE OF AUTHORITIES

Cases

Catlett v. Teel, 477 P.3d 50 (Wash. Ct. App.

2020) ......................................................................... 2

Coleman v. Razete, 137 N.E.3d 639 (Ohio Ct.

App. 2019)......................................................... 13, 14

Delgado v. Miller, 314 So. 3d 515 (Fla. Ct.

App. 2020)............................................................... 15

E.D.H. v. T.J., 559 S.W.3d 60 (Mo. Ct. App.

2018) ................................................................. 14, 15

FEC v. Wis. Right to Life, Inc., 551 U.S. 449

(2007) ............................................................ 3, 16, 17

Gabueva v. Romanenko, No. CCH-19-581819

(Cal. Super. Ct. S.F. Cty. July 26, 2019) ............... 12

Garrison v. Louisiana, 379 U.S. 64 (1964) ..... 3, 16, 17

Hustler Magazine, Inc. v. Falwell, 485 U.S.

46 (1988) ....................................................... 1, 10, 16

In re King County Search Warrants 11-1172,

No. 11-2-12056-2 KNT (Wash. Super. Ct.

King. Cty. July 28, 2011) ......................................... 8

Logue v. Book, 297 So. 3d 605 (Fla. Dist. Ct.

App. 2020)............................................................. 4, 5

Matthews v. Heit, No. 14-817732-PH (Mich.

Cir. Ct. Oakland Cty. Mar. 11, 2014) ...................... 6

McCauley v. Phillips, No. 2016-70000487

(Cal. Super. Ct. Sacramento Cty. Sept. 8,

2016), appeal dismissed on procedural

grounds, No. C083588, 2018 WL 3031765

(Cal. Ct. App. June 19, 2018)................................. 12

iii

Neptune v. Lanoue, 178 So. 3d 520 (Fla.

Dist. Ct. App. 2015) .............................................. 7, 8

Org. for a Better Austin v. Keefe, 402 U.S.

415 (1971) ........................................................... 3, 18

Packingham v. N.C., 137 S. Ct. 1730 (2017)............... 2

Reno v. ACLU, 521 U.S. 844 (1997) ............................ 2

Rowan v. U.S. Post Off. Dep’t, 397 U.S. 728

(1970) ...................................................................... 18

Rynearson v. Ferguson, 355 F. Supp. 3d 964

(W.D. Wash. 2019) ............................................... 8, 9

Saxe v. State College Area School Dist., 240

F.3d 200 (3d Cir. 2001) ...................................... 2, 19

Scarlett v. Gjovik, No. 22-2-03849-7 SEA,

2022 WL 4541046 (Wash. Super. Sep. 26,

2022) ....................................................................... 11

Serafinowicz v. Bernstein, No.

CV154034547S, 2015 WL 3875108 (Conn.

Super. Ct. May 28, 2015), aff’d sub nom.

Stacy B. v. Robert S., 140 A.3d 1004

(Conn. App. Ct. 2016) ............................................... 6

Snyder v. Phelps, 562 U.S. 443 (2011) ................ 10, 16

State v. Burkert, 174 A.3d 987 (N.J. 2017) ............. 3, 7

State v. Speulda, No. 1604-S-2011-000159

(Hawthorne Bor. Mun. Ct. June 9, 2011) ............ 6, 7

TM v. MZ, 926 N.W.2d 900 (Mich. Ct. App.

2018) ......................................................................... 2

United States v. Cassidy, 814 F. Supp. 2d

574 (D. Md. 2011) ................................................... 10

United States v. Stevens, 559 U.S. 460 (2010) .......... 14

iv

Van Liew v. Stansfield, 47 N.E.3d 411

(Mass. 2016) ............................................................. 6

Welytok v. Ziolkowski, 2008 WI App 67, 312

Wis. 2d 435 ............................................................. 12

Statutes and Rules

Fla. Stat. Ann. § 784.048 ............................................. 5

N.J. Stat. Ann. § 2C:33-4 (West 2005) ........................ 7

Tex. Penal Code § 42.07(a)(7) ............................ 1, 7, 16

Wash. Rev. Code Ann. § 9.61.260................................ 8

Other Authorities

Eugene Volokh, One-to-One Speech vs. Oneto-Many Speech, Criminal Harassment

Laws, and “Cyberstalking,” 107 Nw. U. L.

Rev. 731 (2013) ......................................................... 4

Eugene Volokh, Overbroad Injunctions

Against Speech (Especially in Libel and

Harassment Cases), 45 Harv. J. of L. &

Pub. Pol’y 147 (2022)................................ 4, 6, 12, 15

Jeff Hodson, Renton Drops Court Quest to

Find ‘Mrfuddlesticks,’ Seattle Times, Aug.

11, 2011 .................................................................... 9

1

INTEREST OF AMICUS CURIAE 1

The Electronic Frontier Foundation (“EFF”) is a

member-supported, nonprofit civil liberties organization that has worked for more than thirty years to protect innovation, free expression, and civil liberties in

the digital world. On behalf of its more than 38,000

dues-paying members, EFF ensures that users’ interests are presented to courts considering crucial online

free speech issues, including their right to transmit

and receive information online. EFF has filed many

amicus briefs in lower courts challenging overbroad

harassment laws.

SUMMARY OF ARGUMENT

1. The Texas harassment statute upheld below is

facially broad:

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.

Tex. Penal Code § 42.07(a)(7). If Hustler Magazine,

Inc. v. Falwell, 485 U.S. 46 (1988), arose today, and

1 No counsel for a party authored this brief in whole or part,

nor did any person or entity, other than amicus or its counsel,

make a monetary contribution to the preparation or submission

of this brief. The parties received notice at least 10 days before

the deadline and have given express consent to the filing of this

brief.

2

involved two issues of an electronic newsletter rather

than one issue of a magazine, the speech there would

have been a crime under the Texas law. It would have

been very likely intended to harass, annoy, abuse, torment, or embarrass Jerry Falwell. It would have been

sent in a manner reasonably likely to do so—note that

the statute does not require that the communications

be likely to offend the recipient, but only to offend

someone. And it would have involved repeated electronic communications. That alone should indicate

that the Texas statute is overbroad, and that the overbreadth cannot be avoided by relabeling such electronic mailings as “non-speech conduct.” Pet. 14a.

But there is no need for hypotheticals, because similar statutes throughout the country have already been

used to suppress speech, including speech about political officials, police officers, religious figures, lawyers,

and activists, as well as about former lovers or friends

or acquaintances. And many of these laws target or

threaten online speakers speaking in the “the ‘vast

democratic forums of the Internet,’” Packingham v.

N.C., 137 S. Ct. 1730, 1735 (2017) (quoting Reno v.

ACLU, 521 U.S. 844, 868 (1997)).

To be sure, many of the courts in these cases have

rejected such broad applications on First Amendment

grounds, whether by striking down the statutes as

overbroad or holding them unconstitutional as applied. Some of these decisions have echoed then-Judge

Alito’s conclusion that “[t]here is no categorical ‘harassment exception’ to the First Amendment’s free

speech clause.” Saxe v. State College Area School Dist.,

240 F.3d 200, 204 (3d Cir. 2001); see also Catlett v.

Teel, 477 P.3d 50, 59 (Wash. Ct. App. 2020); TM v. MZ,

926 N.W.2d 900, 909 (Mich. Ct. App. 2018); State v.

3

Burkert, 174 A.3d 987, 1000 (N.J. 2017). Yet the Texas

decision below categorically rejects such a First Amendment analysis, by recharacterizing such a “harassment” law as dealing solely with “non-speech conduct.”

2. Speech also does not lose its protection because

of a speaker’s bad motives. Garrison v. Louisiana, 379

U.S. 64, 78 (1964); FEC v. Wis. Right to Life, Inc., 551

U.S. 449, 468 (2007) (lead opinion); id. at 495 (Scalia,

J., concurring in part and concurring in the judgment).

This is because speech motivated at least in part by an

intention to annoy, harass, alarm, or embarrass is often important in public debate, particularly where a

speaker is claiming wrongdoing by a prominent community member, politician, or business. And punishing speech based on its motive risks deterring even

well-intentioned speech, because speakers will reasonably worry that prosecutors, judges, or juries may misperceive their intentions.

3. This Court has also long recognized a distinction

between unwanted speech to an unwilling listener,

which may sometimes be restricted, and unwanted

speech about an unwilling subject, which is generally

constitutionally protected, see, e.g., Org. for a Better

Austin v. Keefe, 402 U.S. 415, 419 (1971). Yet overbroad harassment statutes, including the Texas law,

regularly restrict speech to the public about a person.

These statutes thus routinely threaten constitutionally protected speech across the country, and are

often misused to target speech online that is fundamentally different from pre-digital communications

via the telephone or other forms of direct communication. This Court should grant certiorari to vindicate

the First Amendment’s constraints on such laws.

4

ARGUMENT

I.

Texas’s Harassment Law, and Similar State

Laws, Wrongly Cover a Broad Range of

Fully Protected Speech

Harassment statutes have often been applied to a

wide range of speech about politicians, police officers,

activists, businesspeople, and more. Some cases have

involved statutes labeled “harassment” bans and some

have involved statutes labeled “cyberstalking” bans.

Some used those statutes in criminal prosecutions and

others in injunctive proceedings. Yet all illustrate

that, true to their broad text, such statutes are potentially quite broad in application. This section will offer

just a small subset of examples; for more, see Eugene

Volokh, One-to-One Speech vs. One-to-Many Speech,

Criminal Harassment Laws, and “Cyberstalking,” 107

Nw. U. L. Rev. 731 (2013), and Eugene Volokh, Overbroad Injunctions Against Speech (Especially in Libel

and Harassment Cases), 45 Harv. J. of L. & Pub. Pol’y

147 (2022).

A. Criticism of Politicians

Speech that is sharply critical of political figures

has been the target of “harassment” claims. For instance, Florida State Senator Lauren Book obtained

an anti-“cyberstalking” injunction against Derek

Logue, prohibiting Logue “from posting anything related to [Senator Book], even statements that would

unquestionably constitute pure political speech.”

Logue v. Book, 297 So. 3d 605, 620 (Fla. Dist. Ct. App.

2020) (en banc). Book was a public figure and longtime

advocate of sex offender laws; Logue, himself a former

sex offender, opposed sex offender registries. Id. at

5

607. The injunction was based on Logue’s protest of a

march organized by Book, his aggressive questioning

at a screening of a documentary that featured Book

and Logue, and his sharp criticisms on a website,

which included a picture of Book in her home, her address, and purchase price taken from public records.

Id. at 608-09.

Florida law criminalizes “a course of conduct . . . directed at . . . a specific person” that “caus[es] substantial emotional distress to that person and serv[es] no

legitimate purpose.” Fla. Stat. Ann. § 784.048. That

same statute also allows injunctions against such conduct, including speech, id. § 784.0485; though Senator

Book sought an injunction against Logue rather than

a criminal prosecution, the legal analysis for the two

would have been largely the same. The trial court

found that Logue’s criticisms were indeed “directed at”

Senator Book, Logue, 297 So. 3d at 610, and the appellate court agreed, concluding that the statute “only requires that the course of conduct be directed at a specific person, not necessarily directed to a specific person.” Id. at 611.

Despite that, the appellate court did vacate the injunction, because it concluded that even restrictions

aimed at preventing “cyberstalking” were subject to

First Amendment scrutiny, id. at 616, including when

the speech was “offensive,” “insulting,” or “annoying,”

id. at 619, 620. Yet while the Florida court rightly held

that such speech could not be constitutionally prohibited, the Texas Court of Criminal Appeals’ reasoning

would have labeled such speech “conduct”—at least so

long as it was communicated with an intent to “annoy

. . . or offend another”—and would have allowed it to

be punished. See also, e.g., Matthews v. Heit, No. 14-

6

817732-PH (Mich. Cir. Ct. Oakland Cty. Mar. 11,

2014) (anti-harassment order based on criticism of an

elected judge); Serafinowicz v. Bernstein, No.

CV154034547S, 2015 WL 3875108, at *2, *4 (Conn.

Super. Ct. May 28, 2015) (likewise, based on criticism

of a gubernatorially appointed board member), aff’d

sub nom. Stacy B. v. Robert S., 140 A.3d 1004, 1007

(Conn. App. Ct. 2016); Van Liew v. Stansfield, 47

N.E.3d 411, 413-414 (Mass. 2016) (temporary antiharassment order based on criticism of a planning

board member). (All these orders are discussed in more

detail at Volokh, 45 Harv. J.L. & Pub. Pol. at 154-57;

none of the cases cited in this brief were limited to true

threats or libel or other unprotected categories of

speech.)

Another example comes from a New Jersey antiharassment statute that was used to prosecute a man

for criticizing a political candidate. In 2011, town council candidate Philip Speulda mailed a campaign flyer

featuring a picture of his opponent, a sitting town

councilman, in a hot tub with two other men. See Complaint-Summons, State v. Speulda, No. 1604-S-2011000159 (Hawthorne Bor. Mun. Ct. June 9, 2011), available at https://perma.cc/399A-YKG5 (discussed in

more detail at Volokh, 107 Nw. U. L. Rev. at 732-33).

The picture had previously been posted online by the

opponent. Speulda used the photograph to suggest

that his opponent should not be elected because he

might be gay, or at least, because it was inappropriate

for the opponent to post the picture. Id. Speulda was

prosecuted for violating New Jersey’s criminal harassment law that prohibited communications made “with

purpose to harass another” and are “likely to cause

7

annoyance or alarm.” Id. (relying on N.J. Stat. Ann. §

2C:33-4 (West 2005)).

The charges were eventually dropped, and the law

was eventually narrowed on First Amendment

grounds by the New Jersey Supreme Court. State v.

Burkert, 174 A.3d 987 (N.J. 2017). But if this case had

occurred in Texas today, and the speech happened

online and on at least two occasions, Speulda’s speech

would likely be treated as punishable “conduct” under

the Texas statute. After all, the Texas law (like the

then-existing New Jersey law) criminalizes communications “in a manner reasonably likely to harass, annoy, alarm, . . . embarrass, or offend another.” Tex. Penal Code § 42.07(a). Speulda’s speech may have been

unfair and offensive, but outside of the few recognized

exceptions, the First Amendment prohibits restricting

speech based on content or viewpoint. Yet the New Jersey prosecution targeted Speulda precisely because of

the offensive content of his message; and the Texas law

would authorize the same sort of prosecution.

B. Criticism of Police Officers

Likewise, anti-harassment statutes have been used

to restrict criticism of police officers. In Neptune v.

Lanoue, Florida police officer Philip Lanoue got an “injunction against stalking” (under the same Florida

statute as in Logue v. Book) that barred Patrick Neptune from “posting anything on the Internet regarding

[Lanoue].” 178 So. 3d 520, 521 (Fla. Dist. Ct. App.

2015). Neptune had criticized Lanoue on the site copblock.org based on what he thought was an improper

traffic stop, sent public officials several letters criticizing Lanoue, and sent three letters to Lanoue’s home

address. Id. The trial court issued the injunction

8

ostensibly to “protect the Officer from harassment and

stalking.” Id. at 523.

Again, the appellate court vacated the injunction

because it violated the First Amendment. Whether or

not it may have been permissible to prohibit sending

letters to Lanoue’s personal address, the injunction

unconstitutionally barred “Appellant’s online posting[,

which] was exclusively about an alleged abuse of

power by the Officer acting in his official capacity as a

police officer.” Id. at 522. Under the reasoning of the

Texas Court of Criminal Appeals, though, this injunction would have been upheld as being focused on “conduct” rather than speech.

Anti-harassment criminal statutes can also burden

constitutionally protected speech by authorizing

searches aimed at unmasking political commenters. In

Washington state, for instance, a city prosecutor

launched a criminal investigation against an anonymous cartoonist for a series of internet videos that

were disseminated to the public. In re King County

Search Warrants 11-1172, No. 11-2-12056-2 KNT

(Wash. Super. Ct. King Cty. July 28, 2011), available

at https://perma.cc/M7LZ-BESG (discussed in more

detail at Volokh, 107 Nw. U. L. Rev. at 734). These videos alluded to various real incidents involving Renton

police officers, including some with a sexual component. Id. The city prosecutor concluded that these videos violated Washington’s anti-“cyberstalking” law

that at the time criminalized “mak[ing] an electronic

communication to [another] person . . . with intent to

harass, intimidate, torment, or embarrass.” Wash.

Rev. Code Ann. § 9.61.260 (then-effective version, as

quoted in Rynearson v. Ferguson, 355 F. Supp. 3d 964,

969 (W.D. Wash. 2019) ).

9

The prosecutor ultimately dropped the effort to

identify the cartoonist, after the search warrant was

publicized and publicly criticized (e.g., Jeff Hodson,

Renton Drops Court Quest to Find ‘Mrfuddlesticks,’ Seattle Times, Aug. 11, 2011, at B). There was thus no

occasion for a court to decide in that case whether the

anti-“cyberstalking” law violated the First Amendment. But in Rynearson v. Ferguson, 355 F. Supp. 3d

964 (W.D. Wash. 2019), the court did preliminarily enjoin the Washington statute on First Amendment

grounds, reasoning that, under the law, “even public

criticisms of public figures and public officials could be

subject to criminal prosecution and punishment if they

are seen as intended to persistently ‘vex’ or ‘annoy’

those public figures, or to embarrass them.” Id. at 969970. The state did not appeal the injunction.

Here again, the Texas law is very similar to Washington’s then-existing statute. Like the Washington

law, the Texas statute restricts “electronic communications” made “with intent to harass, annoy, alarm,

abuse, torment, or embarrass another.” While the Renton cartoonist may have intended to embarrass the police, speech with such an intention is constitutionally

protected. See infra Part II. Indeed, even speech intended to embarrass can have substantial social value:

Voters may find it valuable to learn about unprofessional behavior by police officers who are entrusted

with maintaining safety, and embarrassing speech can

help deter such behavior. Yet such speech could be restricted under the Texas law.

C. Criticism of Religious Figures

Or consider the federal prosecution of William Cassidy for posting hundreds of insulting tweets about

10

Alice Zeoli, a leading American Tibetan Buddhist religious figure. United States v. Cassidy, 814 F. Supp. 2d

574, 578-579 (D. Md. 2011). The prosecutors in that

case argued that the tweets violated a federal statute

prohibiting “a course of conduct [using the mail or interactive computer services] that caused substantial

emotional distress to a person . . . with the intent to

harass and cause substantial emotional distress.” Id.

at 580.

Yet the court concluded that the statute was “invalid as applied” to Cassidy’s speech. Id. at 587. The

court noted that the messages were sent to a broad audience rather than being “e-mails or phone calls directed to a victim.” Id. at 585-86. It further explained

that the statute “sweeps in the type of expression that

the Supreme Court has consistently tried to protect.”

Id. at 586. “[T]he Supreme Court has consistently classified emotionally distressing or outrageous speech as

protected, especially where that speech touches on

matters of political, religious or public concern.” Id. at

582 (citing, among other cases, Hustler v. Falwell and

Snyder v. Phelps).

The Cassidy court therefore held, correctly, that

the First Amendment protected Cassidy’s speech. But

again, the Texas Court of Criminal Appeals’ reasoning

would authorize punishing such speech under the

Texas statute, simply by labeling it “conduct.”

D. Criticism of Political Activists

Harassment laws have likewise been used to restrict speech criticizing political activists. Thus, for instance, a Washington state district court recently concluded that a political activist’s criticism of a former

fellow activist could be harassment that would justify

11

a broad restriction on speech. See Scarlett v. Gjovik,

No. 22-2-03849-7 SEA, 2022 WL 4541046, at *4 (Wash.

Super. Ct. Sep. 26, 2022). Cher Scarlett and Ashley

Gjovik had co-founded a whistleblower campaign

against Apple, id. at *2, but had a falling out, and Scarlett sought an anti-harassment order based on Gjovik’s

public online speech about her. Id.

The district court concluded that Gjovik’s speech

was “clearly designed to upset Ms. Scarlett,” that

“[f]ree speech can be curtailed in many ways,” and that

a “course of conduct” can be restricted when it is “designed to alarm, annoy, or harass.” Id. at *4. Because

of this, the court granted an injunction barring Gjovik

from “mak[ing] any statements or posts or other publications” about Scarlett on “any social media or internet or other medium.” Id. And the court did not rely on

any finding that the speech was libelous: Rather, it

reasoned that, “[w]hether it’s true or not doesn’t matter in an antiharassment order.” Id.

But on appeal, the Superior Court vacated the order:

The lower court in this matter seemed to require

a “lawful purpose” behind the Respondent’s

postings of public records. But our state constitution does not allow for that consideration or

restriction on free speech . . . . There is no categorical “harassment exception to the First

Amendment’s free speech clause.”

Id. at *6 (citations omitted). Under the Texas decision

below, such First Amendment protections would be

unavailable, again because such speech would be labeled unprotected “conduct.” See also McCauley v.

Phillips, No. 2016-70000487 (Cal. Super. Ct. Sacra-

12

mento Cty. Sept. 8, 2016) (issuing a similar anti-harassment injunction on behalf of one political activist

against another), appeal dismissed on procedural

grounds, No. C083588, 2018 WL 3031765 (Cal. Ct.

App. June 19, 2018); Volokh, 45 Harv. J.L. & Pub. Pol.

at 158 (discussing McCauley in more detail).

E. Criticism of Professionals or Businesses

Overbroad anti-harassment statutes are also used

to silence criticism of professionals and businesses, in

violation of the First Amendment. In Welytok v. Ziolkowski, for instance, a Wisconsin man attempted to

publicize an attorney’s record of having been suspended for three years from the practice of law for defrauding a client. 312 Wis. 2d 435, 446 (2008). Wisconsin’s harassment statute restricts speech that has “no

legitimate purpose” and is “inten[ded] to harass or intimidate another person.” Id. at 453. The appeals court

affirmed the trial court’s injunction against the

speech, id. at 459, on the grounds that the defendant

was motivated by hostility arising out of a past real

estate lawsuit in which the defendant was defeated by

the plaintiff. Id. at 460-61. See also Civil Harassment

Restraining Order, Gabueva v. Romanenko, No. CCH19- 581819, at 2 ¶ 6.a.4 (Cal. Super. Ct. S.F. Cty. July

26, 2019) (involving a similar anti-harassment injunction issued on behalf of a lawyer, against another lawyer who had been criticizing her); Volokh, 45 Harv.

J.L. & Pub. Pol. at 158-59 (discussing Gabueva in more

detail).

Yet accurate information about an attorney’s disciplinary record like that in Welytok is generally constitutionally protected, and potentially valuable to consumers. Business review sites such as Yelp are

13

popular precisely because people need information

about businesses, professionals, and others. And Texas

law would likewise authorize criminal punishment of

such speech, so long as its “purpose” and likely effect

is found to be culpable.

F. Criticism of Exes

Of course, harassment laws are also used to restrict

people’s abilities to discuss their former friends, acquaintances, lovers, and spouses—even when that

criticism conveys accurate information or constitutionally protected opinion.

For example, in Coleman v. Razete, an Ohio trial

court issued a five-year civil stalking protection order

that commanded Razete to “remove all references to

[her ex-husband] from [any] internet or social-networking sites that she operates or controls” and prevented Razete from “post[ing] any comment about [her

ex-husband].” 137 N.E.3d 639, 641, 646 (Ohio Ct. App.

2019). Shortly before her divorce, Razete had posted

items about her ex-husband alleging that he stole

money from her and had lied to his audience about donating his public-speaking proceeds to charity. Id. at

642.

In issuing the protection order, the trial court held

that Razete’s conduct violated Ohio’s anti-“cyberstalking” statute. Id. at 646. The statute (which was functionally similar to the Texas harassment statute) prohibited “a pattern of conduct” that “knowingly cause[s]

another person to believe the offender will . . . cause

mental distress to the other person” by “post[ing]” “any

message or information, whether truthful or untruthful, about an individual.” Id at 644. While the order

preventing Razete from “pos[ting] any comment about

14

[her ex-husband]” was reversed as an unconstitutional

prior restraint on appeal, the order commanding Razete to delete all her online statements about her exhusband was sustained with no finding that they were

defamatory or threatening. Id. at 646-47.

Like the Ohio statute, the Texas statute prevents

people from airing grievances about their former

spouses to the extent such speech is intended and reasonably likely to “embarrass” or “annoy” the former

spouse. That is not constitutional, even as to speech

that lacks much social or political significance. “Most

of what we say to one another lacks ‘religious, political,

scientific, educational, journalistic, historical, or artistic value’ (let alone serious value), but it is still sheltered from government regulation.” United States v.

Stevens, 559 U.S. 460, 479 (2010).

Similarly, a trial court in Missouri issued an antiharassment order barring a woman “from post[ing],

plac[ing] or includ[ing] any derogatory, demeaning,

disparaging, degrading, and/or belitt[l]ing, comments,

remarks, pictures or similar ‘postings’ about [her exboyfriend] . . . that would reveal [the ex-boyfriend’s]

identity.” E.D.H. v. T.J., 559 S.W.3d 60, 63 (Mo. Ct.

App. 2018). Missouri law classifies harassment as a

“purposeful or knowing course of conduct involving

more than one incident . . . that alarms or causes distress.” Id. at 65. The woman had posted several items

on social media about her ex-boyfriend after learning

that he had been married to another woman (with

whom he had children) during their relationship. Id.

at 63.

Ultimately, the order was vacated on appeal, but

only because the evidence that a few of the ex-

15

boyfriend’s friends saw posts depicting him in a negative light was insufficient to establish that he suffered

substantial emotional distress. Id. at 65. This reading

of the statute makes it quite possible that similar messages, reaching a larger group of friends, can be suppressed as “harassment.” Cf. Delgado v. Miller, 314 So.

3d 515, 518 (Fla. Ct. App. 2020) (vacating, on First

Amendment grounds, an anti-harassment order restricting a woman from speaking about her ex-lover, a

Trump campaign adviser who was slated to be

Trump’s White House Communications Director but

withdrew when his affair with the woman—herself a

political commentator and former Trump campaign

advisor—came to light); Volokh, 45 Harv. J.L. & Pub.

Pol. at 161 (discussing Delgado in more detail).

Likewise, Texas law would presumably restrict the

speech about the ex-boyfriend posted online in E.D.H.

v. T.J. (at least if it reached a larger group of friends).

But the First Amendment permits people to air their

personal grievances about a former relationship, for

instance to warn others in their social circle about certain people, or for the sake of sharing their experiences. People should be free to speak candidly about

their lives, and speech about former romantic partners

is often a source of important self-expression.

II.

An Overbroad Harassment Statute Like

Texas’s Is Not Saved Simply Because It Requires an “Intent to Harass”

Nor can restrictions on such speech be justified on

the theory that the speakers are ill-intentioned.

Even when someone “speak[s] out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.”

16

Garrison v. Louisiana, 379 U.S. 64, 73 (1964). Thus, in

Garrison, this Court held that reputation-injuring

speech could not be restricted based on the motives of

a speaker (as opposed to based on evidence of knowledge or recklessness as to falsity), even when there

was evidence of a “desire to injure.” Id. at 78. The same

logic applies to speech supposedly spoken out of a desire to “harass, annoy, alarm, abuse, torment, [or] embarrass.” Tex. Penal Code § 42.07(a)(7) (at least setting

aside speech that is “alarm[ing]” in the narrow sense

of being a true threat).

Indeed, setting aside a few narrow exceptions (such

as incitement), a speaker’s intent is “entirely irrelevant to the question of constitutional protection.” FEC

v. Wis. Right to Life, Inc., 551 U.S. 449, 468 (2007)

(lead opinion) (cleaned up); id. at 495 (Scalia, J., concurring in part) (likewise rejecting an intent-based test

to determine whether speech was constitutionally

protected). “[I]n the world of debate about public

affairs, many things done with motives that are less

than admirable are protected by the First Amendment.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46,

53 (1988); see also Snyder v. Phelps, 562 U.S. 443, 458

(2011) (applying Hustler to private figures). Indeed,

legitimate criticisms of a person often stem from bad

experiences with that person. Such bad experiences

provide the speaker with useful information about the

subject, but also often generate ill will.

Thus, even an intent to inflict emotional distress,

coupled with the infliction of severe emotional distress,

does not suffice to strip speech of First Amendment

protection. Hustler, 485 U.S at 56; Snyder, 562 U.S. at

460-461. The same must be true for intentions merely

to “annoy,” “embarrass” or even “harass,” “abuse,” or

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“torment.” And even if this logic is viewed as limited to

speech on matters of public concern, Texas Penal Code

§42.07(a)(7) and many other state harassment laws do

not include any exceptions for speech on such matters.

Intent tests also tend to chill speech, because of the

difficulty of teasing apart the various intentions that a

speaker may harbor. Under an intent-based statute,

“[n]o reasonable speaker would choose to” engage in

speech potentially covered by the statute, “if its only

defense to criminal prosecution would be that its motives were pure.” Wis. Right to Life, 551 U.S. at 468

(lead opinion). “[T]est[s] that [are] tied to the public

perception, or a court’s perception, of . . . intent” are

“ineffective to vindicate the fundamental First Amendment rights” of those against whom the intent-based

law is applied. Id. at 492 (Scalia, J., concurring in part

and concurring in the judgment).

Any effort to distinguish restricted speech from unrestricted speech “based on intent of the speaker . . .

would ‘offe[r] no security for free discussion,’ and

would ‘compe[l] the speaker to hedge and trim.’” Id. at

495. “Debate on public issues will not be uninhibited if

the speaker must run the risk that it will be proved in

court that he spoke out of hatred.” Garrison, 379 U.S.

at 73.

III. Unwanted Speech Said About a Person to

Willing Listeners Is Generally Protected

To be sure, there are some familiar categories of

“harassment” laws—telephone harassment laws are

the most common example—that are constitutional.

But this is so because they forbid unwanted speech to

an unwilling recipient, perhaps on the theory that “no

one has a right to press even ‘good’ ideas on an

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unwilling recipient.” Rowan v. U.S. Post Office Dep’t,

397 U.S. 728, 738 (1970).

This cannot justify restrictions on unwanted

speech about an unwilling subject, particularly when

that speech often occurs online in digital forums that

do not resemble phone calls or other mediums of oneon-one communication. Thus, in Organization for a

Better Austin v. Keefe, this Court held that distributing

leaflets to the public about an unwilling subject was

constitutionally protected, even if the “views and practices of the petitioners [were] no doubt offensive to others,” including to the person being criticized. 402 U.S.

415, 419 (1971). Rowan was not applicable to such a

situation, this Court held, because Keefe was “not attempting to stop the flow of information into his own

household, but to the public.” Id. at 420. And, of course,

Hustler and Snyder similarly held that the intentional

infliction of emotional distress tort cannot be used to

stop the flow of criticism and even ridicule of a person

to the public. The logic of these decisions likewise applies to online communications that are similarly directed to the broader public.

Because the Texas statute prohibits repeated electronic communication intended and reasonably likely

to annoy or harass “another” (and not just the recipient), it is not limited to harassing speech directed to an

unwilling listener. Instead, it broadly applies to speech

about a person, even when the speech is directed at

potentially willing listeners. Under the law, “[i]t would

often be unnecessary for the target of the actor’s intent

to even receive or read the electronic communication.”

Pet. 27a (Keller, P.J., dissenting). The Texas law thus

does precisely what Keefe said the law cannot do:

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restricts the flow of information about an unwilling

subject to the public.

CONCLUSION

Texas Penal Code § 42.07(a)(7), like many other

state anti-harassment laws, is unconstitutionally

overbroad. It potentially covers a wide range of speech

that criticizes politicians, police officers, activists,

businesspeople, and others. It cannot be saved by the

requirement of an “intent to harass, annoy, alarm,

abuse, torment, or embarrass another.” And it is not

limited to speech (such as traditional telephone harassment) said to an unwilling listener. This Court

should grant certiorari to consider whether this is constitutional, and to apply then-Judge Alito’s correct

conclusion that “[t]here is no categorical ‘harassment

exception’ to the First Amendment’s free speech

clause.” Saxe, 240 F.3d at 204.

Respectfully submitted,

EUGENE VOLOKH

Counsel of Record

FIRST AMENDMENT CLINIC

UCLA SCHOOL OF LAW

385 Charles E. Young Dr. E

Los Angeles, CA 90095

(310) 206-3926

volokh@law.ucla.edu

Counsel for Amicus Curiae

DECEMBER 7, 2022