Amicus Curiae Brief — Charles Barton, Petitioner v. Texas

No. 22-430

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------CHARLES BARTON AND NATHAN SANDERS,

Petitioners,

v.

STATE OF TEXAS,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The Court Of Criminal Appeals Of Texas

---------------------------------♦--------------------------------BRIEF OF FIRST AMENDMENT SCHOLARS

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

---------------------------------♦--------------------------------TOBIN RAJU

Counsel of Record

LISA S. HOPPENJANS

FIRST AMENDMENT CLINIC

WASHINGTON UNIVERSITY SCHOOL OF LAW

One Brookings Drive

MSC 1120-250-102

St. Louis, MO 63130

(314) 935-6040

tobinraju@wustl.edu

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

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

iii

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

4

I. Section 42.07(a)(7) Targets Communications

That Have Been Recognized by This Court

as Implicating the First Amendment ..........

4

A. Writings, images, and sounds are

traditional forms of communication

implicating the First Amendment .......

6

B. Electronic communications implicate

the First Amendment ............................

9

C. By targeting electronic communications,

§ 42.07(a)(7) restricts speech covered by

the First Amendment ............................ 12

II.

Determining That Speech is Harassing,

Annoying, Alarming, Embarrassing, or

Offensive Will Often Require Courts to

Inquire into the Content of the Speech and

Implicates the First Amendment ................ 14

A. Analyzing charges brought under

§ 42.07(a)(7) will often require

examining the content of the speech ..... 15

B. The content-based nature of § 42.07(a)(7)

reflects that it is a regulation of speech

subject to First Amendment scrutiny ..... 18

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TABLE OF CONTENTS—Continued

Page

III.

Even Disfavored Speech and Speech Made

with Disfavored Intents Implicate the First

Amendment .................................................. 19

IV.

The Government Cannot Dodge the First

Amendment by Relabeling Speech as

Conduct ........................................................ 22

A. Speech cannot be relabeled as conduct

to escape First Amendment scrutiny .... 22

B. The Texas court’s attempt to label

repetitive communications as conduct

fails to save § 42.07(a)(7) ....................... 23

C. By finding § 42.07(a)(7) targets conduct,

the Texas court subjects valuable speech

to prosecution ........................................ 24

CONCLUSION .......................................................

25

iii

TABLE OF AUTHORITIES

Page

CASES

Ashcroft v. Free Speech Coal.,

535 U.S. 234 (2002)............................................... 20

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) ........6

Bartnicki v. Vopper, 532 U.S. 514 (2001) ......................8

Bolles v. People, 541 P.2d 80 (Colo. 1975) ...................14

Brandenburg v. Ohio, 395 U.S. 444 (1969) ...................7

Brown v. Ent. Merchants Ass’n,

564 U.S. 786 (2011) ............................................. 9, 10

Buckley v. Valeo, 424 U.S. 1 (1976) ...............................8

Carey v. Population Servs., Int’l,

431 U.S. 678 (1977) .................................................20

Cohen v. California, 403 U.S. 15 (1971) ................. 7, 20

Ex parte Barton, No. PD-1123-19, 2022 WL

1021061 (Tex. Crim. App. Apr. 6, 2022) .............. 3, 21

Ex parte Sanders, No. PD-0469-19, 2022 WL

1021055 (Tex. Crim. App. Apr. 6, 2022) ........ 3, 21, 23

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) ......................................... 18, 19, 23

Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (1952) ............................................... 7, 9

Kuzbary v. State, No. 14-17-00146-CR, 2018 WL

3118579 (Tex. App. June 26, 2018) .........................17

Lebo v. State, 474 S.W.3d 402 (Tex. App. 2015) ..... 17, 18

iv

TABLE OF AUTHORITIES—Continued

Page

Mahanoy Area Sch. Dist. v. Levy ex rel. B.L.,

141 S. Ct. 2038 (2021) .............................................11

Matal v. Tam, 137 S. Ct. 1744 (2017) .........................20

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

(2017) ................................................................. 10, 11

People v. Klick, 362 N.E.2d 329 (Ill. 1977) .................14

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

505 U.S. 377 (1992) .................................................21

Reno v. American Civil Liberties Union,

521 U.S. 844 (1997) .................................................10

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) ........8

Simon & Schuster, Inc. v. Members of New York

State Crime Victims Bd., 502 U.S. 105 (1991) ........18

Snyder v. Phelps, 562 U.S. 443 (2011) ........................13

Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ...........8

State v. Brobst, 857 A.2d 1253 (N.H. 2004) ................14

State v. Johnson, 191 P.3d 665 (Or. 2008) ..................14

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969) ...................................................6

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994) ...................................................9

Turner v. Lieutenant Driver,

848 F.3d 678 (5th Cir. 2017) ....................................23

United States v. O’Brien, 391 U.S. 367 (1968) ............23

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TABLE OF AUTHORITIES—Continued

Page

United States v. Playboy Ent. Grp., Inc.,

529 U.S. 803 (2000) .................................................10

United States v. Stevens, 559 U.S. 460 (2010) ............21

Virginia State Bd. of Pharmacy v.

Virginia Citizens Consumer Council, Inc.,

425 U.S. 748 (1976) ...................................................8

Winters v. New York, 333 U.S. 507 (1948) .....................7

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I .....................................................6

STATUTES

Texas Penal Code § 42.07(a)(7) .......................... passim

Texas Penal Code § 42.07(b)(1) ....................................2

RULES

S. Ct. Rule 37.2(a) .........................................................1

S. Ct. Rule 37.6 .............................................................1

OTHER AUTHORITIES

Aaron H. Caplan, Free Speech and Civil Harassment Orders, 64 Hastings L.J. 781 (2013) ........ 16, 22

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TABLE OF AUTHORITIES—Continued

Page

Alan E. Brownstein, Hate Speech and Harassment: The Constitutionality of Campus Codes

That Prohibit Racial Insults, 3 Wm. & Mary

Bill Rts. J. 179 (1994) ............................ 15, 16, 22, 24

Ashutosh Bhagwat, When Speech Is Not

“Speech,” 78 Ohio St. L.J. 839 (2017) ........................6

Clay Calvert, Fringes of Free Expression: Testing

the Meaning of “Speech” Amid Shifting Cultural Mores & Changing Technologies, 22 S.

Cal. Interdisc. L.J. 545 (2013) ...................................6

Daniel Harawa, Social Media Thoughtcrimes,

35 Pace L. Rev. 366 (2014) ......................................11

Eric M. Freedman, A Lot More Comes into Focus

When You Remove the Lens Cap: Why Proliferating New Communications Technologies

Make It Particularly Urgent for the Supreme

Court to Abandon Its Inside-Out Approach to

Freedom of Speech and Bring Obscenity,

Fighting Words and Group Libel within the

First Amendment, 81 Iowa L. Rev. 883 (1996) ........16

Frank D. LoMonte & Paola Fiku, Thinking Outside the Dox: The First Amendment and the

Right to Disclose Information, 91 UMKC L.

Rev. 1 (2022) ............................................................10

Ira P. Robbins, What Is the Meaning of “Like”?:

The First Amendment Implications of SocialMedia Expression, 7 Fed. Cts. L. Rev. 127

(2013) .......................................................................12

vii

TABLE OF AUTHORITIES—Continued

Page

Joseph Blocher, Public Discourse, Expert

Knowledge, and the Press, 87 Wash. L. Rev.

409 (2012) ................................................................11

Jorge R. Roig, Decoding First Amendment Coverage of Computer Source Code in the Age of

Youtube, Facebook, and the Arab Spring, 68

N.Y.U. Ann. Surv. Am. L. 319 (2012) ..................... 6, 7

Lee Goldman, Student Speech and the First

Amendment: A Comprehensive Approach, 63

Fla. L. Rev. 395 (2011) .............................................11

Lee Tien, Publishing Software As A Speech Act,

15 Berkeley Tech. L.J. 629 (2000) .............................5

Michal Buchhandler-Raphael, Overcriminalizing Speech, 36 Cardozo L. Rev. 1667 (2015) ...........24

Robert Post, Encryption Source Code and the

First Amendment, 15 Berkeley Tech. L.J. 713

(2000) .........................................................................5

1

INTEREST OF AMICI CURIAE

Amici curiae are scholars whose teaching and research focus on First Amendment law and theory.

Amici respectfully offer their expertise regarding the

First Amendment coverage extended to electronic communications as well as to speech with disfavored intents. Each amicus is identified below:1

Enrique Armijo

Professor of Law

Elon University School of Law

Clay Calvert

Professor of Law and Brechner Eminent

Scholar in Mass Communication

Director of Marion B. Brechner

First Amendment Project

University of Florida

Alan K. Chen

Thompson G. Marsh Law Alumni Professor

University of Denver Sturm College of Law

1

In accordance with Rule 37.6, no counsel for a party authored this brief in whole or in part, nor did counsel for any party

make any contribution to authoring this brief. Pursuant to Rule

37.2(a), counsel for amici represent that all parties have provided

written consent to the filing of this brief, and counsel of record for

the parties received timely notice of this brief ’s filing. The views

presented in this brief are those of the First Amendment scholars

who are signatories to this brief and do not represent any university’s institutional views.

2

Eric M. Freedman

Siggi B. Wilzig Distinguished Professor of

Constitutional Rights

Maurice A. Deane School of Law at

Hofstra University

Heidi Kitrosser

William W. Gurley Professor of Law

Northwestern—Pritzker School of Law

Joseph Thai

Glenn R. Watson Centennial Chair in Law

Presidential Professor

University of Oklahoma College of Law

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

Texas Penal Code § 42.07(a)(7) proscribes the

sending of “repeated electronic communications in a

manner reasonably likely to harass, annoy, alarm,

abuse, torment, embarrass, or offend another,” when a

person intends to “harass, annoy, alarm, abuse, torment, or embarrass another.” “Electronic communication” is defined as any “transfer of signs, signals,

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

nature transmitted in whole or in part by a wire, radio,

electromagnetic, photoelectric, or photo-optical system,” which includes communications made through

“use of electronic mail, instant message . . . cellular or

other type of telephone, a computer . . . text message,

[or through] a social media platform.” Texas Penal

Code § 42.07(b)(1).

3

The Texas Court of Criminal Appeals acknowledged that § 42.07(a)(7) regulates “traditional categories of communication” such as “a writing, an image,

and a sound,” yet nevertheless determined that

§ 42.07(a)(7) is a regulation of non-speech conduct and

does not implicate the First Amendment. Ex parte

Sanders, No. PD-0469-19, 2022 WL 1021055, at *13–

14 (Tex. Crim. App. Apr. 6, 2022) (to be reported at ___

S.W.3d ___) (hereinafter citations are to Petitioners’

appendix); see also Ex parte Barton, No. PD-1123-19,

2022 WL 1021061, at *2, 6 (Tex. Crim. App. Apr. 6,

2022) (to be reported at ___ S.W.3d ___) (hereinafter

citations are to Petitioners’ appendix). The Texas

Court of Criminal Appeals went so far as to find that

§ 42.07(a)(7) raises no First Amendment question,

even if one has “an intent to engage in the legitimate

communication of ideas,” because this “does not negate

the existence of the prohibited intent to harass, annoy,

alarm, abuse, torment, or embarrass another.” Pet.

App. 11a. Thus, one can still violate § 42.07(a)(7) by intending to engage in the legitimate communication of

ideas so long as that person also intends to embarrass

or annoy the recipient of their communication.

Use of the written or spoken word implicates the

First Amendment. This principle extends to electronic

media, and this Court has treated regulations of a

broad and diverse spectrum of electronic media as regulations of speech. The First Amendment is also necessarily implicated when a court must examine the

content of a communication to determine whether the

communication is harassing, annoying, alarming,

4

embarrassing, or offensive, which § 42.07(a)(7) demands. Even communications made with a disfavored

intent implicate the First Amendment—the government cannot escape the First Amendment by creatively relabeling speech as conduct.

The Texas Court of Criminal Appeals attempts to

circumvent the First Amendment by improperly recategorizing speech as conduct. By refusing to

acknowledge the clear implications that the statute

has on speech, and by declining to engage in any form

of First Amendment analysis, the Texas court’s decisions may chill some Texans from speaking at all for

fear that they will face criminal prosecution for their

legitimate and protected communications. This Court

should grant certiorari to consider the critical free

speech rights threatened by the Texas Court of Criminal Appeals’ rulings.

---------------------------------♦---------------------------------

ARGUMENT

I.

Section 42.07(a)(7) Targets Communications

That Have Been Recognized by This Court

as Implicating the First Amendment.

Section 42.07(a)(7) criminalizes an expansive

range of traditional categories of communication and

more novel forms of electronic communication—both

of which have long been recognized to be entitled to

5

First Amendment coverage.2 Speech made electronically is entitled to as much First Amendment coverage

as are traditional forms of speech made offline. In finding that the statute does not call for any First Amendment analysis, the Texas Court of Criminal Appeals

exposes a great deal of protected speech to criminal

sanction.

2

Amici write to explain that § 42.07(a)(7) is regulation of

speech—it regulates activities covered by the First Amendment

and necessitates some First Amendment analysis. Amici do not

address the level of scrutiny § 42.07(a)(7) must satisfy or whether

§ 42.07(a)(7) only regulates speech that is ultimately protected

under the First Amendment. The distinction between First

Amendment coverage and First Amendment protection is that the

former requires a determination of whether a First Amendment

analysis should ensue at all, and the latter results from a finding

that the speech at issue has been unconstitutionally regulated.

“To conclude that the First Amendment ‘covers’ conduct . . . is to

assert that the constitutionality of the conduct’s regulation must

be determined by reference to First Amendment doctrine and

analysis.” Robert Post, Encryption Source Code and the First

Amendment, 15 Berkeley Tech. L.J. 713, 714 (2000). “To conclude

that the conduct is ‘protected’ by the First Amendment, on the

other hand, is to assert that the regulation of the conduct is unconstitutional.” Id.; see also Lee Tien, Publishing Software As A

Speech Act, 15 Berkeley Tech. L.J. 629, 632–33 (2000) (“In most

First Amendment cases, someone’s right to speak is obviously at

stake. . . . But in [other cases], the government claims that

‘speech’ isn’t at issue, and the question is whether the First

Amendment even ‘is brought into play.’ The former cases present

questions of protection; the latter, of coverage.”).

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A. Writings, images, and sounds are

traditional forms of communication

implicating the First Amendment.

The First Amendment guarantees that no law

shall abridge the freedom of speech. U.S. Const. amend.

I. In determining the scope of what the First Amendment covers, “[t]he Supreme Court, has recognized

that speech clearly encompasses words (both spoken

and written), pictures, paintings, drawings, and engravings.” Clay Calvert, Fringes of Free Expression:

Testing the Meaning of “Speech” Amid Shifting Cultural Mores & Changing Technologies, 22 S. Cal. Interdisc. L.J. 545, 548 (2013). It is widely accepted that this

Court’s existing doctrine recognizes “any use of language, either oral or written, necessarily constitutes

‘speech’ for First Amendment purposes.” Ashutosh

Bhagwat, When Speech Is Not “Speech,” 78 Ohio St. L.J.

839, 851 (2017); see also Jorge R. Roig, Decoding First

Amendment Coverage of Computer Source Code in the

Age of Youtube, Facebook, and the Arab Spring, 68

N.Y.U. Ann. Surv. Am. L. 319, 331–32 (2012) (“According to the traditional interpretation of this Supreme

Court doctrine, the oral or written word is ‘pure speech’

and is automatically entitled to First Amendment coverage.”).

This Court has repeatedly held that pure speech—

which certainly includes the written or spoken word—

is “entitled to comprehensive protection under the

First Amendment.” Tinker v. Des Moines Indep. Cmty.

Sch. Dist., 393 U.S. 503, 505–06 (1969); accord Barnes

v. Glen Theatre, Inc., 501 U.S. 560, 576 (1991) (Scalia,

7

J., concurring) (“The First Amendment explicitly protects ‘the freedom of speech [and] of the press’—oral

and written speech. . . . When any law restricts speech,

even for a purpose that has nothing to do with the suppression of communication . . . we insist that it meet

the high, First-Amendment standard of justification.”)

(citations omitted). Not only is the written and spoken

word more explicitly protected by the text of the First

Amendment than other forms of expression, this type

of speech is surrounded by “a specific set of social conventions that make the sounds and symbols that we

use in speaking and writing especially expressive.”

Roig, 68 N.Y.U. Ann. Surv. Am. L. at 333 (emphasis

added).

This Court has extensive precedent demonstrating that a broad scope of traditional categories of communication implicate the First Amendment. See, e.g.,

Cohen v. California, 403 U.S. 15, 18–19, 26 (1971) (reversing breach of peace conviction for individual who

wore jacket with profane words as a regulation of

speech because the “only ‘conduct’ which the State

sought to punish is the fact of communication”); Brandenburg v. Ohio, 395 U.S. 444, 449 (1969) (finding

speech that advocates violence, but not directed to producing imminent lawless action, is protected by the

First Amendment). First Amendment coverage also

extends to artistic media. See Joseph Burstyn, Inc. v.

Wilson, 343 U.S. 495, 502 (1952) (“We conclude that expression by means of motion pictures is included

within the free speech and free press guaranty of the

First and Fourteenth Amendments.”); see also Winters

8

v. New York, 333 U.S. 507, 510 (1948) (finding a true

crime comic magazine “as much entitled to the protecwtion of free speech as the best of literature”). This

Court has also held that commercial speech that communicates a message to a consumer is within the scope

of speech covered by the First Amendment. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976) (finding

advertisements for the prices of prescription drug

prices is speech); Rubin v. Coors Brewing Co., 514 U.S.

476, 481 (1995) (finding information on beer labels is

speech).

Even activities that transcend what is typically

conceived of as traditional or pure speech have received First Amendment coverage. For example, restrictions on financial expenditures by candidates in

support of their candidacy have been held to be a violation of the freedom of speech. See Buckley v. Valeo,

424 U.S. 1, 16–17 (1976) (finding that the expenditure

of money often involves speech alone and therefore

cannot be categorized as nonspeech conduct). In Sorrell v. IMS Health Inc., this Court reaffirmed “that the

creation and dissemination of information are speech

within the meaning of the First Amendment.” 564 U.S.

552, 570 (2011) (“Facts, after all, are the beginning

point for much of the speech that is most essential to

advance human knowledge and to conduct human affairs.”). And in Bartnicki v. Vopper, this Court held that

the First Amendment extends to the disclosure of communications illegally intercepted by another. 532 U.S.

514, 535 (2001) (noting the federal wiretapping

9

statute’s “naked prohibition against disclosures is

fairly characterized as a regulation of pure speech”). If

these activities are entitled to First Amendment coverage, it follows that the traditional categories of communication § 42.07(a)(7) criminalizes are also entitled

to First Amendment coverage.

B. Electronic communications implicate the

First Amendment.

The Texas Penal Code’s definition of “electronic

communications” threatens to criminalize a large

swath of protected online speech. The broad criminalization is in conflict with precedent recognizing

that a diverse array of electronic communications are

entitled to First Amendment coverage. See Turner

Broad. Sys., Inc. v. FCC, 512 U.S. 622, 629 (1994) (finding that programming selection by cable networks constituted speech); see also Burstyn, 343 U.S. at 502

(concluding that “expression by means of motion pictures is included within the free speech and free press

guaranty of the First and Fourteenth Amendments”).

These cases acknowledge that expression via electronic media does “not require the alteration of settled

principles of our First Amendment jurisprudence.”

Turner, 512 U.S. at 639; see also Burstyn, 343 U.S. at

502 (recognizing that the “basic principles of freedom

of speech . . . do not vary” depending on the medium).

As electronic media diversifies in form and function, this Court consistently recognizes the First

Amendment applies to the rapidly evolving electronic

10

media landscape. In Brown v. Ent. Merchants Ass’n,

this Court established that “video games communicate

ideas” and therefore deserved the same protection as

the “books, plays, and movies that preceded them.” 564

U.S. 786, 790 (2011). Additionally, Reno v. American

Civil Liberties Union acknowledged the robust free

speech protections applicable to speech on the Internet, recognizing that “[t]he interest in encouraging

freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.” 521 U.S. 844, 885 (1997); see also Frank D.

LoMonte & Paola Fiku, Thinking Outside the Dox: The

First Amendment and the Right to Disclose Information, 91 UMKC L. Rev. 1, 35 (2022) (“[T]he Supreme

Court in Reno repudiated any notion of a stepped-down

First Amendment analysis for digital speech.”). Even

when assessing controversial forms of electronic media, this Court has recognized that the “history of the

law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.” United States v. Playboy Ent.

Grp., Inc., 529 U.S. 803, 826 (2000) (finding that sexually explicit cable television channels enjoyed First

Amendment protection).

As access to and the quality of technology has

drastically increased, this Court has recognized that

“one of the most important places to exchange views is

cyberspace, particularly social media.” Packingham v.

North Carolina, 137 S. Ct. 1730, 1732 (2017). Social

media has evolved from its humble beginnings of individuals sharing mundane day-to-day activities to its

11

role in helping facilitate democratic revolutions in the

Middle East. See Joseph Blocher, Public Discourse,

Expert Knowledge, and the Press, 87 Wash. L. Rev. 409,

429 (2012). Further, social media has become more

than just a “necessary part of modern interaction” and

“[i]n many ways . . . has become part of human identity.” Daniel Harawa, Social Media Thoughtcrimes, 35

Pace L. Rev. 366, 375 (2014). When online speech is curtailed or regulated, the government “undermines the

First Amendment value in self-expression said to be

necessary to the autonomous self.” Lee Goldman, Student Speech and the First Amendment: A Comprehensive Approach, 63 Fla. L. Rev. 395, 414 (2011).

Since social media is a vehicle for self-expression,

the writing of a Facebook post or Tweet falls within the

“communicative thoughts or words” that are inherently “pure speech” protected by the First Amendment.

Harawa, 35 Pace. L. Rev. at 378. As social media garners more influence in modern culture, this Court has

recognized protections for social media postings, even

postings using profane or vulgar language that

might offend. See Mahanoy Area Sch. Dist. v. Levy ex

rel. B.L., 141 S. Ct. 2038, 2042–44 (2021) (recognizing

that a teenager’s social media posts were protected by

the First Amendment). In Mahanoy, this Court recognized that a public school student’s private social media posts were “the kind of pure speech to which, were

she an adult, the First Amendment would provide

strong protection.” Id. at 2047. In a broader stroke, the

Court has recognized a First Amendment right against

government denial of access to social media. See

12

Packingham, 137 S. Ct. at 1737 (emphasizing that “to

foreclose access to social media altogether is to prevent

the user from engaging in the legitimate exercise of

First Amendment rights”).

Beyond written and spoken words posted on social

media platforms, certain actions on social media platforms can also constitute “speech” under the First

Amendment. See Ira P. Robbins, What Is the Meaning

of “Like”?: The First Amendment Implications of Social-Media Expression, 7 Fed. Cts. L. Rev. 127, 144

(2013). An action, such as “liking” a Facebook post, for

example, constitutes speech under the First Amendment in the same manner as a written post. Id. As political discourse continues to be prevalent on social

media, an individual “liking” a political candidate’s

page or message “is the twenty-first century equivalent of a campaign yard sign, and under [this Court’s]

First Amendment jurisprudence, should be considered

protected speech.” Id. at 127.

C. By targeting electronic communications,

§ 42.07(a)(7) restricts speech covered by

the First Amendment.

Section 42.07(a)(7) proscribes repeated communication likely to “harass, annoy, alarm, abuse, torment,

embarrass, or offend another” as harassment. Section

42.07(a)(7) reaches a wide swath of plainly legitimate

traditional and electronic speech. A range of hypotheticals demonstrates the seemingly endless list of communications § 42.07(a)(7) might cover by proscribing

13

any harassing, annoying, alarming, embarrassing, or

offensive communications. Anyone who has answered

emails for an elected official can attest that constituents often seek to effect change through repeated

emailing, which undoubtedly seeks to harass or annoy

the elected official into action through repeated electronic communication. Alarming speech also plays an

important role in much political fundraising—as electronic communications between political parties and

constituents often speak in breathless tones of impending crises, intending to “alarm” the voter into considering a donation. A journalist seeking comment from an

individual on a sensitive matter previously thought secret could embarrass that individual. Political speech

is often known to cross into crasser, more abrasive territory, which some individuals might deem to be offensive. See Snyder v. Phelps, 562 U.S. 443, 458 (2011)

(recognizing offensive speech on matters of public concern “cannot be restricted simply because it is upsetting or arouses contempt”).

It is particularly concerning that § 42.07(a)(7) can

reach speech meant to annoy or alarm a political actor

into listening and responding to the speaker’s stance.

Consider a Twitter user incessantly messaging his

state senator’s Twitter account in an attempt to sway

his policy stance on abortion or repeatedly retweeting

or sharing a politician’s controversial social media

posts with the intent to alarm followers, a Facebook

user repeatedly posting on a friend’s “wall” to disagree

with their stance on gun rights, or a public-school parent emailing the school board repeatedly to disagree

14

with a district-wide decision they have made. Each of

these communications could be a violation of

§ 42.07(a)(7) if the speaker has an intent to harass, annoy, alarm, or embarrass the recipient in order to get

their attention.

Multiple state high courts have identified such

sweeping restrictions as a problem in other harassment statutes that proscribe a wide swath of communication that some may find unpleasant. See Bolles v.

People, 541 P.2d 80, 83 (Colo. 1975) (noting the political

and social value of speech provoking “alarm”); State v.

Johnson, 191 P.3d 665, 668–69 (Or. 2008) (noting the

long political history and importance of insults and

abusive words); People v. Klick, 362 N.E.2d 329, 331–

32 (Ill. 1977) (arguing that annoying speech often has

legitimate purposes); State v. Brobst, 857 A.2d 1253,

1255–56 (N.H. 2004) (finding that a “prohibition of all

telephone calls placed with the intent to alarm encompasses too large an area of protected speech”). Proscribing such a large scope of speech as harassment, as

§ 42.07(a)(7) does, will sweep in much plainly legitimate speech and leave it unprotected.

II.

Determining That Speech is Harassing,

Annoying, Alarming, Embarrassing, or Offensive Will Often Require Courts to Inquire into the Content of the Speech and

Implicates the First Amendment.

Determining that an electronic communication is

harassing, annoying, alarming, embarrassing, or

15

offensive to the recipient will often involve assessing

speech in a way that implicates the First Amendment.

In order to determine if a communication is proscribed

under § 42.07(a)(7), a court will often need to examine

the content of speech to determine if it was made with

the proscribed intent and decide if that content would

reasonably harass, annoy, alarm, embarrass, or offend

the listener, which has the inevitable effect of discriminating against the speech based on its content.

A. Analyzing charges brought under

§ 42.07(a)(7)

will

often

require

examining the content of the speech.

Section 42.07(a)(7) prohibits a range of electronic

communications that “harass, annoy, alarm, abuse, torment, embarrass, or offend another.” Texas Penal Code

§ 42.07(a)(7). Determining that a communication is

harassing, annoying, alarming, embarrassing, or offensive is often not going to be reliant on the noncommunicative conduct of the speaker, but instead

“the content and language of the conversation between

the speaker and listener.” Alan E. Brownstein, Hate

Speech and Harassment: The Constitutionality of Campus Codes That Prohibit Racial Insults (hereinafter

“Hate Speech”), 3 Wm. & Mary Bill Rts. J. 179, 194–95

(1994). Prosecutions under § 42.07(a)(7) will thus require courts to distinguish between acceptable and unacceptable speech content. Even assuming that the

mere act of sending an email or tweeting is noncommunicative, often it is not the act of sending a text or

tweeting but the “language used, the message

16

conveyed, and the anticipated impact of the speech”

(however unpleasant the anticipated impact of the

speech may be) that determines whether or not that

communication is harassing, annoying, alarming, embarrassing, or offensive. Hate Speech, 3 Wm. & Mary

Bill Rts. J. at 195–96. This determination will commonly hinge on the content of the speech itself. See Aaron H. Caplan, Free Speech and Civil Harassment

Orders, 64 Hastings L.J. 781, 849 (2013) (recognizing

“Internet communications are expression, so regulating them implicates the First Amendment”).

Indeed, finding that an electronic communication

embarrasses or offends necessarily requires looking at

the content of the communication because to embarrass or offend requires expression. The mere act of

sending an electronic communication does not embarrass, it is the private fact shared or the compromising

photo contained within the communication that causes

the embarrassment. It is not sending an email that offends, it is the vulgarity and hostility contained within

the email that offends. Any non-expressive element associated with electronic communication will likely not

be the target of the statute because the act of communicating does not have the proscribed effect. See

Eric M. Freedman, A Lot More Comes into Focus When

You Remove the Lens Cap: Why Proliferating New Communications Technologies Make It Particularly Urgent

for the Supreme Court to Abandon Its Inside-Out Approach to Freedom of Speech and Bring Obscenity,

Fighting Words and Group Libel within the First

Amendment, 81 Iowa L. Rev. 883, 913 (1996) (“If the

17

only plausible reason that the government would want

to regulate the activity is to suppress an idea, as in the

case of flag-burning, then the behavior necessarily is

overwhelmingly communicative, and is, for First

Amendment purposes, pure speech.”).

The actual application of § 42.07(a)(7) by courts

and prosecutors bears this out. In Lebo v. State, the defendant was convicted of violating § 42.07(a)(7) for repeatedly emailing a detective about a criminal case in

which the defendant was involved. 474 S.W.3d 402

(Tex. App. 2015). The defendant sent the detective approximately 40 emails over a period of four months

complaining about how the detective was handling the

prior case and accusing the detective of “destroying evidence and being a felon, corrupt, and incompetent.” Id.

at 404. In Kuzbary v. State, the defendant was charged

with violating § 42.07(a)(7) for sending several emails

a day to his daughter over the course of a few months,

the contents of which were “generally derogatory and

bitter.” No. 14-17-00146-CR, 2018 WL 3118579, at *2

(Tex. App. June 26, 2018). Both of these cases demonstrate acts of contact that on their face would not seem

to violate § 42.07(a)(7)—an individual involved in a

criminal case reaching out to the detective on that

case, and a father emailing his daughter. What made

these contacts harassing, annoying, alarming, embarrassing, or offensive under § 42.07(a)(7) was the speech

content of those emails. While the court in Kuzbary

looked to both the content and amount of the emails to

determine whether they were harassing, less than one

email was sent a day on average. Kuzbary, 2018 WL

18

3118579, at *4. There are many situations where this

frequency of emails is unlikely to be considered harassing, annoying, or embarrassing (as anyone who has

ever worked in a modern office, or attended college can

likely attest), so a court must necessarily focus on the

content of the speech, as opposed to an acceptable frequency. In Lebo, the number of contacts was not dispositive—the court also focused on the fact that the

contact contained speech content that may, for example, have been harassing, annoying, or alarming. 474

S.W.3d at 404. While the speech in both of these cases

is unpleasant, it is clear the speech is what was proscribed and that the speech itself is what made the contact harassing, alarming, or annoying, not merely the

act of contact.

B. The content-based nature of § 42.07(a)(7)

reflects that it is a regulation of speech

subject to First Amendment scrutiny.

This Court has found that a law is content based

when “the conduct triggering coverage . . . consists of

communicating a message.” Holder v. Humanitarian

Law Project, 561 U.S. 1, 28 (2010). A content-based distinction must be analyzed under the relevant First

Amendment test. Id. Content discrimination is considered a central concern under the First Amendment because “the government’s ability to impose contentbased burdens on speech raises the specter that the

government may effectively drive certain ideas or

viewpoints from the marketplace.” Simon & Schuster,

Inc. v. Members of New York State Crime Victims Bd.,

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502 U.S. 105, 116 (1991). Section 42.07(a)(7) is a law

where the “conduct triggering coverage” is often going

to be based on the message conveyed, rather than any

non-expressive element of electronic communication,

because the statute’s proscription on speech reasonably likely to harass, annoy, alarm, embarrass, or offend

lends itself to a content-based application. See Holder,

561 U.S. at 28. Accordingly, in order to ensure that certain speech is not discriminated against based on the

government’s desire to drive its message from the marketplace, a law like § 42.07(a)(7) must be subjected to

First Amendment scrutiny.

III. Even Disfavored Speech and Speech Made

with Disfavored Intents Implicate the First

Amendment.

The Texas Court of Criminal Appeals attempted to

justify its decision to deny First Amendment coverage

to communications under § 42.07(a)(7) because “persons whose conduct violates [the statute] will not have

an intent to engage in the legitimate communication of

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

intent to inflict emotional distress for its own sake.”

Pet. App. 8a. Further, the Texas court concluded that

even a communication made with an intent to engage

in the legitimate communication of ideas will face

criminal liability if the communication also intends to

harass, annoy, alarm, or embarrass the recipient. Id. at

12a. In relying on this rationale, the Texas court implies that the nature of the speech at issue is of such

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low value that it does not even implicate the First

Amendment.

This “low-value” speech rationale is inappropriate

in light of well-established precedent. When the speech

at issue does not fall within a proscribable category of

speech, this Court has regularly accorded First

Amendment coverage to offensive speech. See Carey v.

Population Servs., Int’l, 431 U.S. 678, 701 (1977) (“[W]e

have consistently held that the fact that protected

speech may be offensive to some does not justify its

suppression.”); Cohen, 403 U.S. at 20, 26 (finding prosecution for breach of peace unconstitutional and not a

valid exercise of state’s police power where speaker’s

message was merely offensive); Matal v. Tam, 137

S. Ct. 1744, 1763 (2017) (“We have said time and again

that ‘the public expression of ideas may not be prohibited merely because the ideas are themselves offensive

to some of their hearers.’ ”) (citation omitted); see also

Ashcroft v. Free Speech Coal., 535 U.S. 234, 239–41

(2002) (striking down a federal statute that would prohibit possessing or distributing sexually explicit images “which may be created by using adults who look

like minors or by using computer imaging”).

It is contrary to this Court’s well-established jurisprudence to treat speech made with the intent to harass, annoy, alarm, or embarrass and reasonably likely

to harass, annoy, alarm, embarrass, or offend as distinct categories of unprotected speech. For disfavored

speech to be proscribable, it must rise to the level of

obscenity, incitement, or another discretely defined

category of proscribable speech. See Matal, 137 S. Ct.

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at 1765 (Kennedy, J., concurring) (“Aside from [fraud,

defamation, or incitement] and a few other narrow exceptions, it is a fundamental principle of the First

Amendment that the government may not punish or

suppress speech based on disapproval of the ideas or

perspectives the speech conveys.”).

Neither the Texas legislature nor the Texas judiciary has the authority to create new proscribable categories of speech (i.e., “speech that intends to annoy”

or “speech that reasonably offends”). This Court explained in United States v. Stevens that this Court’s

precedent “cannot be taken as establishing a freewheeling authority to declare new categories of speech

outside the scope of the First Amendment.” 559 U.S.

460, 472 (2010). Although this Court noted that proscribable categories of speech beyond those that have

been clearly established might exist, they must be

identified by this Court. Id. at 468–69, 472 (noting that

the only current proscribable categories of speech “long

familiar to the bar” include “obscenity, defamation,

fraud, incitement, and speech integral to criminal conduct”) (cleaned up). Regulations on these categories of

speech are permissible as long as they are not “vehicles

for content discrimination” within the proscribable category of speech. R.A.V. v. City of St. Paul, Minn., 505

U.S. 377, 383–84 (1992) (recognizing “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”). The effect of the Texas Court of Criminal

22

Appeals’ decisions in Barton and Sanders is to treat

harassing, annoying, alarming, embarrassing, or offensive speech and speech made with the intent to harass,

annoy, alarm, or embarrass as proscribable categories

of speech.

IV. The Government Cannot Dodge the First

Amendment by Relabeling Speech as

Conduct.

A. Speech cannot be relabeled as conduct

to escape First Amendment scrutiny.

Despite the clear application of § 42.07(a)(7) to

speech, the Texas Court of Criminal Appeals found

that the statute is a permissible regulation of noncommunicative conduct that “may include spoken words.”

Pet. App. 8a. The Texas court found that the categories

of electronic communication proscribed under

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

at all. Pet. App. 8a. A finding that § 42.07(a)(7) regulates only non-expressive aspects of communication

means that “virtually any speech restriction could

avoid First Amendment review through careful drafting.” See Hate Speech, 3 Wm. & Mary Bill Rts. J. at 195

n.63. For example, “[a] law prohibiting one person from

‘approaching another person with the intent to harass

that person’ could be upheld as a constitutional regulation of conduct despite the fact that it was routinely

applied to expressive activity.” Id.

Creatively relabeling verbal or written communications (i.e., traditional or pure speech) as conduct

23

to avoid First Amendment scrutiny conflicts with

established First Amendment principles. See Caplan,

64 Hastings L.J. at 809–10 (“Some courts have tried to

avoid the unavoidable free speech questions through

creative labeling. . . . Relabeling . . . speech as conduct

does not make it so.”); see also Turner v. Lieutenant

Driver, 848 F.3d 678, 689 (5th Cir. 2017) (“Although

writing and painting can be reduced to their constituent acts, and thus described as conduct, we have not

attempted to disconnect the end product from the act

of creation.”) (citation omitted). This is true even in

cases before this Court where the governmental regulation ultimately survived. See Holder, 561 U.S. at

27–28. In Holder, the government argued that the

material-support statute at issue, which prohibited

providing resources to a foreign terrorist organization,

regulated conduct, not speech. Id. (citing United States

v. O’Brien, 391 U.S. 367, 377 (1968) (articulating the

test for whether expressive conduct warrants First

Amendment protection)). This Court rejected that contention and held that the material-support statute

“regulates speech on the basis of its content,” and thus

must be subject to strict scrutiny and not O’Brien’s less

demanding intermediate scrutiny. Much like the material-support statute at issue in Holder, § 42.07(a)(7)

directly regulates speech.

B. The Texas court’s attempt to label repetitive communications as conduct fails to

save § 42.07(a)(7).

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In holding that § 42.07(a)(7) did not implicate the

First Amendment at all, the Texas court in Sanders

found that repetitive electronic communication “is

pure conduct that must be explained by separate

speech” and that this “pure conduct” would not implicate the First Amendment. Pet. App. 55a. The mere fact

that communication is repetitive does not justify its

prohibition. See Hate Speech, 3 Wm. & Mary Bill Rts.

J. at 203 (“[R]epeated expressive activity is not some

magic talisman that nullifies the force of the First

Amendment.”). Indeed, repetition is often an aspect of

the message, signaling intensity of emotion or commitment to the idea being expressed. See id. at 202. Many

important acts of speech can involve repetition, such

as the chanting of a slogan at a protest. Simply because

a message is repeated does not mean that the message

no longer has communicative value and does not mean

that the communicative content is suddenly outside

the bounds of the First Amendment.

C. By finding § 42.07(a)(7) targets conduct,

the Texas court subjects valuable speech

to prosecution.

Allowing legislatures to circumvent the First

Amendment by proscribing speech made with a disfavored intent, even if the speech is also made with the

intent to engage in the legitimate communication of

ideas, allows governments to open the door to criminal

sanctions for a wide array of speech with only a little

bit of work. This approach “precludes First Amendment scrutiny [of ] specific speech acts that do carry

25

communicative messages and, thus, might warrant

free speech protection.” Michal Buchhandler-Raphael,

Overcriminalizing Speech, 36 Cardozo L. Rev. 1667,

1717 (2015). The plain text of § 42.07(a)(7) demonstrates its expansive scope, which includes a wide

range of communications generally viewed as legitimate. If § 42.07(a)(7) does not implicate the First

Amendment at all, and regulations of speech go without meaningful judicial review, expressive communications are vulnerable to government censorship. A law

prohibiting communication with government officials

with the intent to “harass” or “annoy” would receive no

First Amendment review. A law prohibiting the publication of information with the intent to “embarrass” a

public figure would receive no First Amendment review. A law prohibiting television reporters from

speaking with the intent to “alarm” their audiences

would receive no First Amendment review. A law that

targets speech reasonably likely to “offend” the majority of the public would receive no First Amendment review. Finding that the First Amendment is not

implicated by such laws would do significant damage

to free speech principles.

---------------------------------♦---------------------------------

CONCLUSION

Section 42.07(a)(7) seeks to prohibit speech of

which Texas does not approve. Despite the fact that

speech of a harassing, annoying, alarming, embarrassing, or offending nature may not be desirable to some,

it is still speech. Speech—even speech that does not

26

ultimately receive First Amendment protection—must

be analyzed as such. The Texas Court of Criminal Appeals erroneously upholds this prohibition on speech

by arguing that violators of the statute do not have “an

intent to engage in the legitimate communication of

ideas, opinions, or information. . . .” Pet. App. 8a. This

rationale goes too far in defining what types of communications belong in public discourse and, in doing so,

mischaracterizes protected speech as conduct.

Respectfully submitted,

TOBIN RAJU

Counsel of Record

LISA S. HOPPENJANS

FIRST AMENDMENT CLINIC

WASHINGTON UNIVERSITY

SCHOOL OF LAW

One Brookings Drive

MSC 1120-250-102

St. Louis, MO 63130

(314) 935-6040

tobinraju@wustl.edu