Amicus Curiae Brief — Charles Barton, Petitioner v. Texas
Supreme Court briefDec 8, 2022
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No. 22-430
In the
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 AMICI CURIAE
TECHNOLOGY LAW AND POLICY CLINIC AT
NEW YORK UNIVERSITY SCHOOL OF LAW
& WOODHULL FREEDOM FOUNDATION
IN SUPPORT OF PETITIONERS
Jacob M. Karr
Counsel of Record
Jason M. Schultz
TECHNOLOGY LAW AND
POLICY CLINIC
NEW YORK UNIVERSITY
SCHOOL OF LAW
245 Sullivan Street
New York, NY 10012
(212) 998-6042
jacob.karr@law.nyu.edu
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ....................................... ii
INTEREST OF THE AMICI CURIAE .......................1
SUMMARY OF THE ARGUMENT ............................2
ARGUMENT ...............................................................4
I.
Intentionally harassing, annoying,
alarming, abusive, tormenting, or
embarrassing speech is protected by the
First Amendment and often valuable for a
democratic and pluralistic society. .................4
II. Section 42.07(a)(7) is substantially
overbroad because it criminalizes protected
and valuable electronic communications
sent with the intent and in a manner likely
to harass, annoy, alarm, abuse, torment, or
embarrass. .......................................................6
A. The statute criminalizes a vast array of
protected expression. ................................7
B. The statute’s conceivable legitimate
sweep is comparatively small. ................17
III. Section 42.07(a)(7)’s overbreadth is
particularly chilling because electronic
communications, which often lack
circumstantial evidence of intent, are
uniquely susceptible to misinterpretation
and thus arbitrary or discriminatory
enforcement. ..................................................19
CONCLUSION ..........................................................23
ii
TABLE OF AUTHORITIES
Cases
Ashcroft v. Free Speech Coal.,
535 U.S. 234 (2002) ........................................... 17
Bd. of Airport Comm’rs v. Jews for Jesus, Inc.,
482 U.S. 569 (1987) ............................................. 9
Buckley v. Valeo,
424 U.S. 1 (1976) ................................................. 7
Carter v. Transport Workers Union of America
Local 556,
353 F. Supp. 3d 556 (N.D. Tex. 2019) .............. 11
City of Chicago v. Morales,
527 U.S. 41 (1999) ............................................... 8
City of Houston v. Hill,
482 U.S. 451 (1987) ............................................. 5
Cohen v. California,
403 U.S. 15 (1971) ............................................... 4
Coleman v. Grand,
523 F. Supp. 3d 244 (E.D.N.Y. 2021) ............... 15
Davison v. Randall,
912 F.3d 666 (4th Cir. 2019) ............................. 12
Dombrowski v. Pfister,
380 U.S. 479 (1965) ........................................... 20
FCC v. Pacifica Found.,
438 U.S. 726 (1978) ............................................. 4
iii
Gentile v. State Bar of Nev.,
501 U.S. 1030 (1991) ........................................... 6
Giboney v. Empire Storage & Ice Co.,
336 U.S. 490 (1949) ........................................... 17
Gillette v. State,
444 S.W.3d 713 (Tex. App. 2014) ..................... 21
Gooding v. Wilson,
405 U.S. 518 (1972) ............................................. 7
Goza v. Memphis Light Gas & Water Div.,
2019 WL 11706044 (W.D. Tenn. Jan. 9, 2019) ... 14
Grenier v. Taylor,
183 Cal. Rptr. 3d 867 (Cal. Ct. App. 2015) ...... 14
Kallinen v. Newman,
2022 WL 2834756 (S.D. Tex. July 20, 2022) .... 12
Keyishian v. Bd. of Regents,
385 U.S. 589 (1967) ........................................... 17
Mahanoy Area Sch. Dist. v. B.L.,
141 S. Ct. 2038 (2021) ......................................... 4
Mignogna v. Funimation Prods., LLC,
2022 WL 3486234 (Tex. App. Aug. 18, 2022) ... 15
NAACP v. Claiborne Hardware Co.,
458 U.S. 886 (1982) ............................................. 5
Norwell v. City of Cincinnati,
414 U.S. 14 (1973) ............................................... 6
iv
N.Y. Times Co. v. Sullivan,
376 U.S. 254 (1964) ............................................. 6
Ogle v. Texas,
140 S. Ct. 118 (2019) ......................................... 12
Ex parte Ogle,
2018 WL 3637385 (Tex. App. Aug. 1, 2018) ..... 12
Perez v. Florida,
137 S. Ct. 853 (2017) ......................................... 20
PETA v. Banks,
2022 WL 4021938 (S.D. Tex. Sept. 2, 2022) ..... 11
PETA v. Tabak,
No. 21-CV-2380 (D.D.C. Apr. 1, 2022) ............. 10
R.A.V. v. City of St. Paul,
505 U.S. 377 (1992) ............................................. 8
Reno v. ACLU,
521 U.S. 844 (1997) ........................................... 20
Robinson v. Hunt Cnty.,
921 F.3d 440 (5th Cir. 2019) ............................. 12
Scott v. State,
322 S.W.3d 662
(Tex. Crim. App. 2010) ........................ 8, 9, 11, 14
Snyder v. Phelps,
562 U.S. 443 (2011) ............................................. 4
Terminiello v. City of Chicago,
337 U.S. 1 (1949) ................................................. 5
v
Texas v. Johnson,
491 U.S. 397 (1989) ............................................. 4
Todd v. Lovecruft,
2020 WL 60199 (N.D. Cal. Jan. 6, 2022) .......... 16
United States v. Alvarez,
567 U.S. 709 (2012) ............................................. 4
United States v. Bazuaye,
559 F. App’x 709 (10th Cir. 2014) .................... 20
United States v. Fulmer,
108 F.3d 1486 (1st Cir. 1997) ........................... 21
United States v. Guevara,
408 F.3d 252 (5th Cir. 2005) ............................. 21
United States v. Stevens,
559 U.S. 460 (2010) ............................. 6, 7, 10, 17
United States v. Thirty-Seven (37) Photographs,
402 U.S. 363 (1971) ............................................. 8
United States v. Williams,
553 U.S. 285 (2008) ......................................... 7, 9
Virginia v. Black,
538 U.S. 343 (2003) ........................................... 17
Walker v. State,
327 S.W.3d 790 (Tex. App. 2010) ..................... 21
Watts v. United States,
394 U.S. 705 (1969) ........................................... 20
vi
Statutes
Tex. Penal Code Ann. § 22.07(a) ............................ 17
Tex. Penal Code Ann. § 22.07(a)(2) ....................... 18
Tex. Penal Code Ann. § 22.07(a)(5) ....................... 18
Tex. Penal Code Ann. § 42.07(a) .............................. 9
Tex. Penal Code Ann. § 42.07(a)(4) ......................... 8
Tex. Penal Code Ann. § 42.07(a)(7) ................passim
Tex. Penal Code Ann. § 42.07(b)(1) ......................... 8
Tex. Penal Code Ann. § 42.072(a) .......................... 18
Constitutional Provisions
U.S. Const., amend I .......................................passim
Other Authorities
Stephen Banks, Informal Justice in England and
Wales, 1760-1914 (2014) ................................... 16
Octavio Blanco, The Best Way to Complain
to a Company on Social Media,
Consumer Reps. (Aug. 2, 2021),
https://www.consumerreports.org/consumercomplaints/best-way-to-complain-to-acompany-on-social-media-a4380499295........... 13
vii
Katherine W. Bogen et al., A Qualitative Analysis
of How Individuals Utilized the Twitter
Hashtags #NotOkay and #MeToo to Comment
on the Perpetration of Interpersonal Violence,
Soc. Media + Soc’y, Jan. 2022 ........................... 16
Moira Donegan, I Started the Media Men List,
Cut (Jan. 10, 2018),
https://www.thecut.com/2018/01/moiradonegan-i-started-the-media-men-list.html .... 15
Kevin Doyle, Got Bad Customer Service? How to
Complain Well and Get Results, Consumer
Reps. (Dec. 2, 2019),
https://www.consumerreports.org/customerservice/got-bad-customer-service-how-tocomplain-well-and-get-results .......................... 13
Eric Goldman, Emojis and the Law,
93 Wash. L. Rev. 1227 (2018) ........................... 22
Zach Honig, How to Use Twitter to Rebook a
Canceled Flight, Fodor’s Travel (July 14,
2014), https://www.fodors.com/news/
airlines/how-to-use-twitter-to-rebook-acanceled-flight ................................................... 13
Internet Slang, Rice Univ.,
https://www.ruf.rice.edu/~kemmer/Words04/
usage/slang_internet.html ................................ 22
Emma A. Jane, Online Misogyny and Feminist
Digilantism, Continuum: J. Media & Cultural
Stud. 284 (2016) ................................................ 16
viii
Tyler Kingkade, In Rare Move, School Librarian
Fights Back in Court Against Conservative
Activists, NBC News (Aug. 13, 2022),
https://www.nbcnews.com/news/us-news/raremove-school-librarian-fights-back-courtconservative-activists-rcna42800 ..................... 11
Barbara Krasnoff, How to Get Your Money Back
After a Bad Purchase, Verge (Nov. 25, 2019),
https://www.theverge.com/2019/11/25/
20982536/returns-refund-purchase-complaintproblem-broken-better-business-bureaucourts ................................................................. 13
Stephanie Madden & Rebecca A. Alt, Know Her
Name: Open Dialogue on Social Media as a
Form of Innovative Justice, Soc. Media + Soc’y,
Jan. 2021 ........................................................... 15
Saif Mohammad, Sentiment Analysis: Detecting
Valence, Emotions, and Other Affectual States
From Text, in Emotion Measurement
(Herbert L. Meiselman ed., 2016) .................... 19
Kashfia Sailunaz et al., Emotion Detection from
Text and Speech: A Survey, Soc. Network
Analysis & Mining, Apr. 7, 2018 ...................... 19
Sample Complaint Letter Template, USAGov,
https://www.usa.gov/complaint-letter .............. 14
Solving Customer Problems: Returns, Refunds,
and Other Resolutions, Fed. Trade Comm’n
(May 2021), https://consumer.ftc.gov/articles/
solving-customer-problems-returns-refundsand-other-resolutions ...................................... 13
ix
Peter Suciu, Generation Divide: Different Age
Groups Use Emojis Differently and That Isn’t
Likely Going to Change, Forbes (Aug. 24,
2021), https://www.forbes.com/sites/
petersuciu/2021/08/24/generation-dividedifferent-age-groups-use-emojis-differentlyand-that-isnt-likely-going-to-change ................ 22
Jia Tolentino, The Whisper Network After
Harvey Weinstein and “Shitty Media Men,”
New Yorker (Oct. 14, 2017),
https://www.newyorker.com/news/newsdesk/the-whisper-network-after-harveyweinstein-and-shitty-media-men ..................... 15
Julia Carrie Wong & Maria L. La Ganga,
‘My Own Form of Justice’: Rape Survivors
and the Risk of Social Media ‘Vigilantism,’
Guardian (Sept. 13, 2016),
https://www.theguardian.com/
society/2016/sep/13/social-media-rapesurvivors-justice-legal-system .......................... 16
Why Does PETA Use Controversial Tactics?,
PETA, https://www.peta.org/aboutpeta/faq/why-does-peta-use-controversialtactics................................................................. 11
1
INTEREST OF THE AMICI CURIAE 1
The Technology Law and Policy (“TLP”) Clinic
at New York University School of Law is dedicated to
public interest legal work at the intersection of law
and technology. As one of the foremost programs of its
kind, the TLP Clinic has an interest in preserving civil
liberties in new and novel contexts that involve
technology. This case directly implicates that interest,
as it threatens individuals’ First Amendment rights
with respect to electronic communications.
The
Woodhull
Freedom
Foundation
(“Woodhull”) is a non-profit organization that works
to advance the recognition of sexual freedom, gender
equality, and free expression. The Foundation’s name
was inspired by the nineteenth century suffragette
and women’s rights leader, Victoria Woodhull. The
organization works to improve the well-being, rights,
and autonomy of every individual through advocacy,
education, and action. Woodhull’s mission is focused
on affirming sexual freedom as a fundamental human
right. The Foundation’s advocacy has included a wide
range of human rights issues, including reproductive
justice, anti-discrimination legislation, combatting
sexual harassment and violence, and the right to
define ones’ own family. Woodhull is particularly
concerned that the challenged statute will hamper its
ability to advocate for and support victims of sexual
oppression.
1 Amici provided timely notice to counsel for all parties and
received their written consent. Sup. Ct. R. 37.2(a). No counsel for
any party authored this brief in whole or in part, and no person
or entity other than Amici or their counsel made a monetary
contribution to fund the preparation or submission of the brief.
Sup. Ct. R. 37.6.
2
SUMMARY OF THE ARGUMENT
The First Amendment protects speech that may
be unpleasant, including speech we detest. This Court
has long recognized that such speech can be vital for
our marketplace of ideas often precisely because it is
communicated with an intent and in a manner likely
to “harass, annoy, alarm, abuse, torment, or
embarrass”—the very emotive functions that are
criminalized by Texas Penal Code § 42.07(a)(7). In
dismissing these intents as not “legitimate,” and
concluding that communications sent with such
intents do not even qualify as speech under the First
Amendment, the Texas Court of Criminal Appeals
failed to recognize that such communications are in
fact ubiquitous, frequently useful, and—most
importantly—constitutionally protected. The court’s
profound error on such a critical issue involving First
Amendment rights merits this Court’s consideration
of Petitioners’ case.
Section 42.07(a)(7) is substantially overbroad.
As discussed below, the statute prohibits a wide range
of expression that the First Amendment does and
should protect, from core political speech to
commonplace forms of self-help. Indeed, speech made
with the statute’s proscribed intents can often be
especially valuable and important to protect given its
integral role in advocacy. For example, an animal
rights organization might “annoyingly” comment on
the Facebook page of a federal or state agency to draw
attention to problematic government practices. The
purchaser of a faulty product might post “alarming”
online reviews to prevent other would-be customers
from repeating their mistakes. The victim of
workplace harassment might post “embarrassing”
Tweets about their employer to pressure it to change
3
its
misconduct
policies.
All
considered,
unconstitutional applications like these far exceed the
statute’s conceivable legitimate sweep. In enacting
§ 42.07(a)(7), the Texas Legislature may have sought
to address real and serious online harms, but this
poorly drawn statute fails to do so without
overburdening protected expression.
The statute’s overbreadth presents an
especially heightened risk of chilling protected
expression
because
it
targets
electronic
communications. Such communications often lack
clear indicia of intent. When people send emails or
post on social media, the intent of the speaker is often
harder to discern than in the context of in-person or
even telephone communications. In those contexts,
prosecutors and juries can look to circumstantial
evidence such as a defendant’s body language or tone
of voice. Additionally, electronic communications have
unique features, like the use of emojis and internet
slang, that make their intended meaning and effect
more ambiguous than other forms of speech. Fearing
that their electronic communications will be
misinterpreted and used to criminally punish them,
speakers may choose not to express themselves at all.
In refusing to even apply First Amendment
scrutiny to § 42.07(a)(7), the court below failed to
grasp the statute’s risk of chilling online speech, a
danger that will only grow as more states enact
electronic harassment statutes. This Court should
grant review to reverse the court below and ensure
that § 42.07(a)(7) and other similar electronic
harassment statutes do not chill protected speech.
4
ARGUMENT
I.
Intentionally
harassing,
annoying,
alarming,
abusive,
tormenting,
or
embarrassing speech is protected by the
First Amendment and often valuable for a
democratic and pluralistic society.
This Court has long recognized that the First
Amendment protects “speech we detest.” United
States v. Alvarez, 567 U.S. 709, 729 (2012). The Court
has emphasized that such speech is vital for our
marketplace of ideas often precisely because it is
communicated with an intent and in a manner likely
to harass, annoy, alarm, abuse, torment, or
embarrass. See, e.g., FCC v. Pacifica Found., 438 U.S.
726, 745 (1978) (“[I]f it is the speaker’s opinion that
gives offense, that consequence is a reason for
according it constitutional protection.”). “In fact,
words are often chosen as much for their emotive as
their cognitive force,” and the “emotive function” of
speech “may often be the more important element of
the overall message sought to be communicated.”
Cohen v. California, 403 U.S. 15, 26 (1971).
The Court has upheld the rights of speakers
engaging in intentionally offensive speech in a variety
of contexts—from a political activist provocatively
burning the American flag “to protest the policies of
the Reagan administration,” see Texas v. Johnson, 491
U.S. 397, 399 (1989), to a high school student using
social media to communicate “vulgar” criticisms of her
“school and the school’s cheerleading team,” see
Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038, 2042
(2021). No matter its context, “speech cannot be
restricted simply because it is upsetting or arouses
contempt.” Snyder v. Phelps, 562 U.S. 443, 458 (2011).
5
Most significantly, speakers engaging in core
political speech often intend to harass, annoy, alarm,
abuse, torment, or embarrass to advance their goals.
In Terminiello v. City of Chicago, for example, the
Court overturned the petitioner’s conviction for
breach of the peace after he delivered a controversial
speech “criticiz[ing] various political and racial groups
whose activities he denounced as inimical to the
nation’s welfare.” 337 U.S. 1, 3 (1949). Freedom of
speech, the Court explained, “may indeed best serve
its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or
even stirs people to anger.” Id. at 4. After all, the
Court continued, “[s]peech is often provocative and
challenging.” Id.
Similarly, in NAACP v. Claiborne Hardware
Co., the Court held that the First Amendment
protected political advocacy premised on “social
pressure and the ‘threat’ of social ostracism,” which
“further[ed] the aims of [an NAACP] boycott” as part
of a campaign to achieve racial justice in Mississippi.
458 U.S. 886, 909–910 (1982). As the Court noted,
“[s]peech
does
not
lose
its
protected
character . . . simply because it may embarrass others
or coerce them into action.” Id. at 910.
The freedom to send intentionally harassing,
annoying, alarming, abusive, tormenting, or
embarrassing communications is especially crucial
when individuals seek to directly criticize or question
government officials. See City of Houston v. Hill, 482
U.S. 451, 462–63 (1987) (“The freedom of individuals
verbally to oppose or to challenge police action without
thereby risking arrest is one of the principal
characteristics by which we distinguish a free nation
from a police state.”). Indeed, this Court has
6
emphasized that “speech critical of the exercise of the
State’s power lies at the very center of the First
Amendment,” Gentile v. State Bar of Nev., 501 U.S.
1030, 1034 (1991), and that individuals may use such
speech to defend themselves from, or highlight what
they perceive to be, abuses of government power, see,
e.g., Norwell v. City of Cincinnati, 414 U.S. 14, 16
(1973) (overturning a conviction based on a police
officer’s testimony that the defendant “was annoying
[him]” while he was protesting his “highly
questionable detention”).
In all of these contexts, the Court has
consistently reaffirmed that communications made
with disfavored intents—as harassing, annoying,
alarming, abusive, tormenting, or embarrassing as
they may be—are protected by the First Amendment.
This reflects our “profound national commitment to
the principle that debate on public issues should be
uninhibited, robust, and wide-open, and that it may
well include vehement, caustic, and sometimes
unpleasantly sharp attacks on government and public
officials.” N.Y. Times Co. v. Sullivan, 376 U.S. 254,
270 (1964).
II.
Section
42.07(a)(7)
is
substantially
overbroad
because
it
criminalizes
protected
and
valuable
electronic
communications sent with the intent and
in a manner likely to harass, annoy, alarm,
abuse, torment, or embarrass.
Section 42.07(a)(7) is “a criminal prohibition of
alarming breadth.” United States v. Stevens, 559 U.S.
460, 474 (2010). As both written and authoritatively
construed by Texas’s highest criminal court, it
criminalizes a far-reaching range of protected
expression, including political advocacy and efforts at
7
self-help by consumers and harassment victims. But
“the
statute’s
plainly
legitimate
sweep”—
encompassing electronic communications that may
rise to the level of unprotected true threats or speech
integral to criminal conduct—is relatively narrow.
United States v. Williams, 553 U.S. 285, 292 (2008).
As a result, it is unconstitutionally overbroad. See
Stevens, 559 U.S. at 473 (explaining that a statute is
facially overbroad if “a substantial number of its
applications are unconstitutional, judged in relation
to the statute’s plainly legitimate sweep” (quoting
Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442, 449 n.6 (2008))).
A. The statute criminalizes a vast array of
protected expression.
Speech
restrictions
are
“particularly
treacherous” when criminal sanctions are involved.
Buckley v. Valeo, 424 U.S. 1, 76 (1976) (per curiam).
Thus, to survive an overbreadth challenge, a “statute
must be carefully drawn or be authoritatively
construed to punish only unprotected speech and not
be susceptible of application to protected expression.”
Gooding v. Wilson, 405 U.S. 518, 522 (1972). Section
42.07(a)(7) is neither. In the decisions below, the
Texas Court of Criminal Appeals took an alreadybroad statute and made it broader.
As written, the Texas statute broadly
proscribes
“send[ing]
repeated
electronic
communications” with the intent and “in a manner
reasonably likely to harass, annoy, alarm, abuse,
torment, [or] embarrass . . . another.” Tex. Penal Code
Ann. § 42.07(a)(7). The statute defines “electronic
communication” to encompass most if not all forms of
online speech:
8
“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 through the use of electronic
mail, instant message, network call, a
cellular or other type of telephone, a
computer, a camera, text message, a
social media platform or application, an
Internet website, any other Internetbased communication tool, or facsimile
machine . . . .
Tex. Penal Code Ann. § 42.07(b)(1).
The Texas Court of Criminal Appeals’
authoritative construction of § 42.07(a)(7) has
exacerbated, rather than alleviated, the statute’s
breadth. 2 In Scott v. State, the court interpreted the
relevant statutory terms in the context of an
overbreadth and vagueness challenge to another
subsection of the statute, § 42.07(a)(4):
“Harass” means “to annoy persistently.”
“Annoy” means to “wear on the nerves by
2 Because this Court “lack[s] jurisdiction authoritatively to
construe state legislation,” United States v. Thirty-Seven (37)
Photographs, 402 U.S. 363, 369 (1971), it is “bound by the
construction given to” § 42.07(a)(7) by the Texas Court of
Criminal Appeals, the state’s highest criminal court, R.A.V. v.
City of St. Paul, 505 U.S. 377, 381 (1992); see also City of Chicago
v. Morales, 527 U.S. 41, 61 (1999) (“We have no authority to
construe the language of a state statute more narrowly than the
construction given by that State’s highest court.”).
9
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.”
322 S.W.3d 662, 669 n.13 (Tex. Crim. App. 2010)
(quoting Webster’s Ninth New Collegiate Dictionary
47, 68, 88, 405, 552, & 1245 (1988)).
In the opinions below, the Texas Court of
Criminal Appeals confirmed that its broad
interpretation of these terms in Scott also applies to
subsection (a)(7). Pet. App. 13a–14a, 35a. The court
further emphasized that “a person mak[ing] repeated
[electronic] communications” may be held liable under
§ 42.07(a) even if that person has an “intent to engage
in the legitimate communication of ideas.” Pet. App.
12a.
Under the Texas court’s reading of
§ 42.07(a)(7), a person commits a crime if she sends
repeated electronic communications with an intent
and in a manner likely to “annoy persistently,” “wear
on the nerves by persistent petty unpleasantness,”
“strike with fear,” “attack with words,” “cause severe
distress of the mind,” or “cause to experience a state
of self-conscious distress of the mind”—even if the
sender does not intend solely to inflict emotional
distress.
As a result, § 42.07(a)(7) “criminalizes a
substantial amount of protected expressive activity,”
Williams, 553 U.S. at 297, presenting “a realistic
danger that the statute itself will significantly
compromise recognized First Amendment protections
of parties not before the Court,” Bd. of Airport
10
Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574
(1987) (quoting City Council of L.A. v. Taxpayers for
Vincent, 466 U.S. 789, 801 (1984)). The Court need not
rely on “fanciful hypotheticals” to illustrate the
statute’s broad sweep. Stevens, 559 U.S. at 485 (Alito,
J., dissenting). By proscribing communications made
with the intent to harass, annoy, alarm, or embarrass,
the statute criminalizes and chills a large amount of
“real-world” protected expression, id., including
political speech, consumer complaints, and advocacy
by harassment victims. In all of these contexts,
repeatedly sending messages to make one’s audience
uncomfortable, wear them down, or shock them into
paying attention is often the goal in and of itself.
When faced with an uninterested listener, resource
constraints, or other barriers, sometimes intentional
harassment, annoyance, alarm, or embarrassment is
the entire point.
Perhaps most strikingly, § 42.07(a)(7)
criminalizes the core protected speech of political
activists and advocacy groups, which repeatedly send
intentionally harassing, annoying, alarming, or
embarrassing electronic communications to draw the
attention of the public and the government to their
cause, particularly when they believe their stance is
unpopular. For example, the animal rights group
People for the Ethical Treatment of Animals (“PETA”)
employs purposefully “controversial” advocacy tactics
to draw free media attention to its message, including
by posting comments on social media, 3 in part because
See, e.g., Memorandum of Law in Support of Plaintiffs’
Motion for Summary Judgment at 13–14, PETA v. Tabak, No.
21-CV-2380 (D.D.C. Apr. 1, 2022), 2022 WL 1538454 (describing
how and why PETA uses social media to promote its cause).
3
11
it has fewer resources to spend on paid advertising
than opposing interest groups. 4 Animal rights
supporters who post upwards of five hundred
comments on the livestreams of a public university’s
graduation ceremony to protest the school’s use of
canines in medical experiments 5 intend to and likely
do “wear on the nerves by persistent petty
unpleasantness.” Scott, 322 S.W.3d at 669 n.13.
The same is true when an activist concerned
about the age-appropriateness of books in the local
library repeatedly posts on Facebook asking why the
local librarian is “fighting so hard to keep sexually
erotic and pornographic materials in the kid’s
section.” 6 Or when a worker who opposes abortion
repeatedly criticizes the leader of her union on
Facebook for participating in organizing that
supported abortion rights. 7 Our society accepts these
types of harassing or annoying speech as legitimate
forms of advocacy. But the Texas statute makes them
criminal.
4 See Why Does PETA Use Controversial Tactics?, PETA,
https://www.peta.org/about-peta/faq/why-does-peta-usecontroversial-tactics.
5 See PETA v. Banks, 2022 WL 4021938, at *2, *6 (S.D. Tex.
Sept. 2, 2022) (finding this activity “indisputably affected with a
constitutional interest in free speech”).
6 Tyler Kingkade, In Rare Move, School Librarian Fights
Back in Court Against Conservative Activists, NBC News (Aug.
13, 2022), https://www.nbcnews.com/news/us-news/rare-moveschool-librarian-fights-back-court-conservative-activistsrcna42800.
7 Carter v. Transport Workers Union of America Local 556,
353 F. Supp. 3d 556, 563–64 (N.D. Tex. 2019).
12
Indeed, § 42.07(a)(7) bars one of the most
important forms of political speech: direct criticism of
the government. Concerned citizens in Texas and
elsewhere repeatedly send intentionally harassing or
annoying electronic communications to get the
attention of government officials. 8 In fact,
§ 42.07(a)(7) has already been used to prosecute and
silence a Texas citizen, Scott Ogle, for sending
multiple—admittedly colorful—emails to two police
officers. 9 His communications called one officer an
“arrogant, condescending, belligerent” individual
“who chooses to look the other way,” and addressed
the other as “little bitch” and “little state weasel,”
while writing, “you have a Constitution to uphold, son,
[and] you’re pissing on it.” 10 While perhaps
distasteful, criticism of this sort receives First
Amendment protection so long as it does not fall into
one of the recognized free speech exceptions. See infra
Section II.B. Yet Texas has already used § 42.07(a)(7)
to silence critical citizens exercising this right.
Additionally, the Texas statute criminalizes the
complaints of consumers, who repeatedly contact
businesses over the internet or post on social media to
8 See, e.g., Robinson v. Hunt Cnty., 921 F.3d 440, 445 (5th
Cir. 2019) (discussing critical comments posted on the Facebook
page of a local government official); Davison v. Randall, 912 F.3d
666, 674 (4th Cir. 2019) (same); Kallinen v. Newman, 2022 WL
2834756, at *1 (S.D. Tex. July 20, 2022) (same).
9 See Ex parte Ogle, 2018 WL 3637385, at *1 (Tex. App. Aug.
1, 2018), cert. denied, 140 S. Ct. 118 (2019).
10 Petition for a Writ of Certiorari at 8 n.3, Ogle v. Texas, 140
S. Ct. 118 (2019) (No. 18-1182), 2019 WL 1167875, at *8 n.3.
13
re-book flights, 11 acquire refunds for faulty
products, 12 or warn other customers away from bad
businesses 13—particularly when a business has failed
to respond over other channels. 14 The practice has
become so widespread that consumer organizations
now offer guides on how to effectively complain to a
company on social media. 15
Zach Honig, How to Use Twitter to Rebook a Canceled
Flight,
Fodor’s
Travel
(July
14,
2014),
https://www.fodors.com/news/airlines/how-to-use-twitter-torebook-a-canceled-flight.
11
12 Barbara Krasnoff, How to Get Your Money Back After a
Bad
Purchase,
Verge
(Nov.
25,
2019),
https://www.theverge.com/2019/11/25/20982536/returns-refundpurchase-complaint-problem-broken-better-business-bureaucourts.
13 Solving Customer Problems: Returns, Refunds, and Other
Resolutions,
Fed.
Trade
Comm’n
(May
2021),
https://consumer.ftc.gov/articles/solving-customer-problemsreturns-refunds-and-other-resolutions (“If you can’t resolve the
problem and feel the company has been unfair, you may want to
warn other people by writing an online review. . . . Many
companies monitor social media and may reply if they see you’re
dissatisfied with their response to your complaint.”).
14 Kevin Doyle, Got Bad Customer Service? How to Complain
Well and Get Results, Consumer Reps. (Dec. 2, 2019),
https://www.consumerreports.org/customer-service/got-badcustomer-service-how-to-complain-well-and-get-results
(describing the experiences of multiple consumers who
successfully resolved complaints through social media after
unsatisfactory responses over other channels).
15 Octavio Blanco, The Best Way to Complain to a Company
on Social Media, Consumer Reps. (Aug. 2, 2021),
https://www.consumerreports.org/consumer-complaints/bestway-to-complain-to-a-company-on-social-media-a4380499295.
14
Despite its ubiquity and usefulness, however,
this consumer advocacy may well run afoul of
§ 42.07(a)(7). An email threatening to “seek[] help
from a consumer protection agency or the Better
Business Bureau” 16 intends to “strike with fear.”
Scott, 322 S.W.3d at 669 n.13. A Facebook post calling
on a company to terminate an employee for his “white
supremacist rhetoric” 17 certainly intends to cause
company leadership “to experience a state of selfconscious distress of the mind.” Id. The Texas statute
chills consumers from using the full range of self-help
tools at their disposal.
Finally, § 42.07(a)(7) punishes the advocacy of
harassment and abuse victims and their allies, who
disclose personal stories on the internet or call out
alleged attackers in order to warn others about
exploitative authority figures, 18 express solidarity
Sample Complaint Letter
https://www.usa.gov/complaint-letter.
16
Template,
USAGov,
17 Goza v. Memphis Light Gas & Water Div., 2019 WL
11706044, at *5–7 (W.D. Tenn. Jan. 9, 2019) (describing social
media posts and messages sent by customers of plaintiff’s former
employer, wherein customers complained about racist comments
made by plaintiff).
18 See, e.g., Grenier v. Taylor, 183 Cal. Rptr. 3d 867, 876 (Cal.
Ct. App. 2015) (members of parish who posted online about
alleged sexual abuse of minors by pastor “were attempting to
warn people away from attending the Church”).
15
with other victims, 19 process their own experience, 20
or compel institutional change 21—especially when
legal recourse is unavailable or unsatisfactory. 22 Such
communications often intend to harass, annoy, alarm,
or embarrass. Indeed, public shaming has a long
history in the context of sexual and gender-based
19 See, e.g., Mignogna v. Funimation Prods., LLC, 2022 WL
3486234, at *10 (Tex. App. Aug. 18, 2022) (noting that a victim
publicly tweeted about her experience with harassment “so that
other women who were victims . . . would know that they are not
alone”).
20 See, e.g., id. (“My intent in my outcry was always to provide
an opportunity for healing and encouragement for bravery for
both myself and other victims.”).
21 See, e.g., Coleman v. Grand, 523 F. Supp. 3d 244, 252
(E.D.N.Y. 2021) (explaining that the defendant circulated an
email and letter about her experience with an abusive partner
and fellow musician “to create change in the industry”); Jia
Tolentino, The Whisper Network After Harvey Weinstein and
“Shitty Media Men,” New Yorker (Oct. 14, 2017),
https://www.newyorker.com/news/news-desk/the-whispernetwork-after-harvey-weinstein-and-shitty-media-men (“Speech
about sexual assault can stem from a variety of worthy
motivations: to warn other women, to find closure and catharsis,
to enact or perform solidarity, to get an abusive person out of a
position of power, to change institutional procedures.”).
22 See, e.g., Stephanie Madden & Rebecca A. Alt, Know Her
Name: Open Dialogue on Social Media as a Form of Innovative
Justice, Soc. Media + Soc’y, Jan. 2021, at 1, 6–8 (describing a rape
victim’s difficult experience with the criminal legal system);
Moira Donegan, I Started the Media Men List, Cut (Jan. 10,
2018),
https://www.thecut.com/2018/01/moira-donegan-istarted-the-media-men-list.html (“[As women who] are young,
new to the industry, and not yet influential in our fields[,] . . . the
risks of using any of the established means of reporting were
especially high and the chance for justice especially slim.”).
16
violence. 23 Furthermore, some victims may use
deliberately harassing language to take back power
from abusers. 24 Others may intentionally choose to
spare no details in recounting their alarming
experience, in order to force abusers and the public to
confront the effects of their actions or complicity. 25
Accordingly, § 42.07(a)(7)’s overbroad language allows
prosecutors to weaponize the statute against the very
groups it was ostensibly meant to protect, deterring
See Stephen Banks, Informal Justice in England and
Wales, 1760-1914, at 92–100 (2014) (describing how nineteenthcentury English villagers used “rough music” processions to
morally condemn men who beat their wives); Julia Carrie Wong
& Maria L. La Ganga, ‘My Own Form of Justice’: Rape Survivors
and the Risk of Social Media ‘Vigilantism,’ Guardian (Sept. 13,
2016), https://www.theguardian.com/society/2016/sep/13/socialmedia-rape-survivors-justice-legal-system
(describing
how
feminist activists in the 1960s and ’70s shamed suspected
abusers at their places of work).
23
24 See, e.g., Todd v. Lovecruft, 2020 WL 60199, at *4, *21
(N.D. Cal. Jan. 6, 2022) (granting motion to strike defamation
claim arising out of tweet that stated, “[I] love watching the men
in my industry who’ve sexually abused me and many others
squirm as I take them out one by one while they nervously await
their turn [¶] hahahahahahahaha eat goat dung you epoxy
brained cowards”); cf. Emma A. Jane, Online Misogyny and
Feminist Digilantism, 30 Continuum: J. Media & Cultural Stud.
284, 290 (2016) (explaining that victims of electronic harassment
who “talk[] about the hurt” and express vulnerability online may
fall victim to further “trolling” by those seeking to “disrupt [their]
emotional equilibrium”).
25 See, e.g., Katherine W. Bogen et al., A Qualitative Analysis
of How Individuals Utilized the Twitter Hashtags #NotOkay and
#MeToo to Comment on the Perpetration of Interpersonal
Violence, Soc. Media + Soc’y, Jan. 2022 (categorizing and
analyzing the often-graphic details victims may share in online
disclosures of their experiences with interpersonal violence).
17
victims from speaking out. As statutes like
§ 42.07(a)(7) spread, entire social movements may be
chilled before they even start.
In sum, the Texas statute criminalizes a wide
range of protected and valuable electronic
communications, from core political speech to
consumer complaints to self-advocacy by victims of
harassment and abuse.
B. The statute’s conceivable legitimate
sweep is comparatively small.
In contrast to the astounding variety and
volume of protected speech that the statute covers, its
applications to unprotected speech are sharply
circumscribed. This Court has recognized a limited
number of “historically unprotected categories of
speech.” Stevens, 559 U.S. at 468–70 (describing some
of those categories); Ashcroft v. Free Speech Coal., 535
U.S. 234, 245–46 (2002) (same). Two such categories
are especially relevant here: true threats, see Virginia
v. Black, 538 U.S. 343, 360 (2003); and speech integral
to a course of criminal conduct, see Giboney v. Empire
Storage & Ice Co., 336 U.S. 490, 498 (1949). Some
speech that falls within the sweep of § 42.07(a)(7) is
arguably not protected under these exceptions;
however, such speech comprises a small portion of all
expression proscribed by the statute.
Moreover, “[t]he breadth of legislative
abridgment must be viewed in the light of less drastic
means for achieving the same basic purpose.”
Keyishian v. Bd. of Regents, 385 U.S. 589, 609 (1967)
(quoting Shelton v. Tucker, 364 U.S. 479, 488 (1960)).
Here, the state possesses several alternative tools to
prosecute unprotected expression that might fall
within § 42.07(a)(7)’s small legitimate sweep. For
example, Texas Penal Code § 22.07(a) makes it a
18
crime to “threaten[] to commit any offense involving
violence to any person or property with intent
to . . . place any person in fear of imminent serious
bodily injury[,] . . . [or] place the public or a
substantial group of the public in fear of serious bodily
injury.” Tex. Penal Code Ann. § 22.07(a)(2), (5).
Additionally, § 42.072(a) makes it a crime to “on more
than one occasion and pursuant to the same scheme
or course of conduct that is directed specifically at
another person, knowingly engage[] in conduct”: (1)
that “the actor knows or reasonably should know the
other person will regard as threatening [injury to
their person, their property, or their loved ones]”; (2)
that does in fact “cause[] the other person [or their
loved ones] to be placed in fear of [such injury]”; and
(3) that “would cause a reasonable person to [fear
such injury].” Tex. Penal Code Ann. § 42.072(a).
Thus, much electronic harassment that rises to the
level of a true threat, or that constitutes speech
integral to a course of criminal conduct, is already
punishable under different provisions of Texas’s
criminal code, making § 42.07(a)(7)’s legitimate
applications redundant.
Comparing the statute’s unconstitutional
applications to its constitutional ones makes clear
that the Texas statute is substantially overbroad. As
authoritatively construed, it criminalizes a farreaching range of commonplace forms of protected
speech in which speakers rely on the statute’s
proscribed intents. By contrast, only a relatively small
amount of unprotected speech falls within its bounds.
Furthermore, the state can prosecute much of this
unprotected speech using alternative tools, tempering
the potency of the statute’s already-small legitimate
sweep.
19
III.
Section 42.07(a)(7)’s overbreadth is
particularly chilling because electronic
communications,
which
often
lack
circumstantial evidence of intent, are
uniquely susceptible to misinterpretation
and thus arbitrary or discriminatory
enforcement.
Compared to non-electronic communications,
which may offer evidence of a defendant’s body
language and tone of voice, electronic communications
are accompanied by far more limited and ambiguous
evidence. As scientific studies have indicated,
determining intent over electronic communications,
especially when they consist of pure text, is
challenging and inexact. 26 What’s more, unique
attributes of electronic communications, such as the
use of emojis and internet slang, add to their
ambiguity—and increase the overall risk that such
communications
may
be
misinterpreted
by
prosecutors or juries. Without clear indicia of intent
over these mediums, prosecutors have more discretion
in interpreting a defendant’s communications and
26 See, e.g., Kashfia Sailunaz et al., Emotion Detection from
Text and Speech: A Survey, Soc. Network Analysis & Mining,
Apr. 7, 2018, at 1, 4 (It can be “nearly impossible” to detect tone
from pure text since “some text has emotions and words which
are ambiguous, some words have multiple meanings . . . . Some
text represents sarcasm, or use[s] slangs.”); Saif Mohammad,
Sentiment Analysis: Detecting Valence, Emotions, and Other
Affectual States From Text, in Emotion Measurement 205–06
(Herbert L. Meiselman ed., 2016) (“Often we communicate affect
through tone, pitch, and emphasis. However, written text
usually does not come with annotations of stress and
intonation. . . . We also communicate emotions through facial
expressions. . . . Once again, this information is not present in
written text.” (citations omitted)).
20
enforcing the Texas statute against them. Fearing
arbitrary enforcement, individuals may then refrain
from sending electronic communications in the first
place. Indeed, “[e]ven the prospect of ultimate failure
of such prosecutions by no means dispels their chilling
effect on protected expression.” Dombrowski v. Pfister,
380 U.S. 479, 494 (1965). The Texas statute, by failing
to consider the special nature of electronic
communications, further “silences some speakers
whose messages would be entitled to constitutional
protection.” Reno v. ACLU, 521 U.S. 844, 874 (1997).
To prove intent, prosecutors typically rely on
various kinds of evidence—but the range of available
evidence differs depending on the context in which an
alleged crime was committed. When it comes to crimes
involving speech communicated in person or out loud,
prosecutors will often have more evidence of
situational context that may prove helpful or even
dispositive in determining intent. See, e.g., Watts v.
United States, 394 U.S. 705, 708 (1969) (finding that
the context of the defendant’s speech and the “reaction
of the listeners” were important factors in
determining that the defendant was not making true
threats). Evidence of situational context could make
the difference, for example, in whether a defendant is
convicted for making true threats or is considered
“just a harmless drunk guy at the beach.” Perez v.
Florida, 137 S. Ct. 853, 855 (2017) (Sotomayor, J.,
concurring) (quotation marks omitted).
Non-electronic communications may be
accompanied by helpful indicia of intent. For example,
body language is often used to corroborate or clarify
intent in true threats cases. See, e.g., United States v.
Bazuaye, 559 F. App’x 709, 714 (10th Cir. 2014)
(relying on both “words and physical gestures” to hold
21
that the defendant intended to make true threats);
Walker v. State, 327 S.W.3d 790, 797 (Tex. App. 2010)
(holding that the defendant’s “aggressive body
language” demonstrated his intent to make true
threats (quotation marks omitted)); Gillette v. State,
444 S.W.3d 713, 723 (Tex. App. 2014) (affirming the
defendant’s conviction based on “nonverbal
communication, such as body language and tone”).
Similarly, tone of voice is a helpful indicator of intent.
See, e.g., United States v. Fulmer, 108 F.3d 1486, 1492
(1st Cir. 1997) (finding that the defendant’s voicemail,
which captured his tone of voice, “[could] legitimately
lead a rational jury to find that this statement was a
threat”). Evidence of tone can distinguish a true
threat “from idle or careless talk, exaggeration, or
something said in a joking manner.” United States v.
Guevara, 408 F.3d 252, 258 (5th Cir. 2005) (quotation
marks omitted). Both body language and tone of voice
can
thus
distinguish
true
threats
from
communications made without the requisite intent.
In the context of electronic communications,
such evidence is often unavailable, making the intent
with which they are sent even harder to discern.
There may not be any evidence of an individual’s body
language or tone of voice. Even if there were witnesses
who observed or were aware of the speech, they may
not be able to testify to any relevant situational
context. While prosecutors or juries may try to infer
demeanor and tone from electronic communications,
limited evidence makes this difficult—and, in
criminal cases, carries serious risks of error.
These interpretive difficulties are heightened
by
certain
unique
features
of
electronic
communications, such as emojis and internet slang.
Emojis—which are pictorial symbols denoting various
22
facial expressions, objects, places, and activities—are
prevalent in electronic communications but may not
have clearly established meanings and can be difficult
to understand. Many emojis have an “inherent
ambiguity,” conveying a “disparate range of possible
emotional meanings.” 27 Likewise, some internet slang
words and acronyms may also be prone to
misunderstanding and misinterpretation. Take
“GFY,” for example, which could either mean “good for
you” or “go fuck yourself.” 28 In an email, text, or social
media exchange, it may not be clear which “GFY” is
being sent—a congratulatory “good for you,” or a
sudden reaction, perhaps out of envy or anger, that
could reasonably harass, annoy, or alarm someone.
Given the lack of clear meaning around commonly
used emojis and internet slang, intent becomes even
harder to discern over electronic communications.
In light of both the lack of circumstantial
evidence of intent and the additional ambiguities of
electronic communications, § 42.07(a)(7) presents an
extraordinary risk of arbitrary or discriminatory
enforcement, resulting in the chilling of protected and
valuable speech.
27 Eric Goldman, Emojis and the Law, 93 Wash. L. Rev. 1227,
1250 (2018) (discussing the complexities, ambiguities, and
potential misunderstandings surrounding emoji use). There is
also a generational divide in how emojis are interpreted. See, e.g.,
Peter Suciu, Generation Divide: Different Age Groups Use Emojis
Differently and That Isn’t Likely Going to Change, Forbes (Aug.
24, 2021), https://www.forbes.com/sites/petersuciu/2021/08/24/
generation-divide-different-age-groups-use-emojis-differentlyand-that-isnt-likely-going-to-change (describing “social media
friction between Millennials and Gen Z in terms of emoji use”).
Internet Slang, Rice Univ., https://www.ruf.rice.edu/
~kemmer/Words04/usage/slang_internet.html.
28
23
CONCLUSION
For the foregoing reasons, the Court should
grant certiorari.
Respectfully submitted,
Jacob M. Karr
Counsel of Record
Jason M. Schultz
TECHNOLOGY LAW AND
POLICY CLINIC
NEW YORK UNIVERSITY
SCHOOL OF LAW
245 Sullivan Street
New York, NY 10012
(212) 998-6042
jacob.karr@law.nyu.edu
December 8, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.