Opposition Brief — Slade Alan Moore, Petitioner v. Texas
Supreme Court briefJan 9, 2023
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No. 22-434
In the Supreme Court of the United States
SLADE ALAN MOORE,
PETITIONER,
v.
STATE OF TEXAS.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS OF TEXAS
BRIEF IN OPPOSITION
SEAN B. GALLOWAY
Andrews County Attorney
KEN PAXTON
Attorney General of Texas
121 NW Avenue A
Andrews, Texas 79714
sgalloway@co.andrews.tx.us
(432) 524-1405
BRENT WEBSTER
First Assistant Attorney
General
JUDD E. STONE II
Solicitor General
Counsel of Record
LANORA C. PETTIT
Principal Deputy Solicitor
General
JOSEPH N. MAZZARA
Assistant Attorney General
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Judd.Stone@oag.texas.gov
(512) 936-1700
QU E S TIO NS PR E S E NTE D
Suicide is one of the two most common causes of
death among young Americans—an epidemic exacerbated by the growing prevalence of cyberbullying and
other forms of electronic harassment. 1 Like many States,
Texas has tried to protect its citizens from such disgraceful and potentially dangerous conduct by making it a
crime to repeatedly send electronic communications to an
individual in a manner intended to “harass, annoy, alarm,
abuse, torment, or embarrass” him and that is reasonably
likely to do so. Tex. Penal Code § 42.07(a)(7). And like the
courts of many States, Texas’s highest criminal court has
upheld that statute against a First Amendment challenge
because it penalizes the conduct of repeatedly sending
electronic signals—not the content or message of those
signals. The questions presented are:
1. Whether this Court has jurisdiction to consider the
denial of a pre-trial writ of habeas corpus by a state
court—particularly when the defendant can be
convicted on at least one theory that does not turn
on the constitutional question presented.
2. Whether a law prohibiting the intentional sending
of repeated, unwanted electronic signals with the
specific intent to cause one of a list of enumerated
harms to another person facially violates the Constitution.
See, e.g., Sharon Reynolds, Cyberbullying linked with suicidal
thoughts and attempts in young adults, NAT’L INSTS. OF HEALTH
(July 12), 2022, https://tinyurl.com/2a4bhu6x.
1
(I)
II
TA BLE O F C O NTE N TS
Page
Questions Presented ......................................................... I
Table of Authorities ........................................................ IV
Introduction....................................................................... 1
Jurisdiction ........................................................................ 2
Statement .......................................................................... 2
I. Legal Background ................................................. 2
II. Factual Background .............................................. 6
III. Procedural Background ........................................ 7
Argument........................................................................... 8
I. The Court Cannot—or at Least Should
Not—Delve into This Interlocutory Decision
Arising from a State Court ................................... 8
A. This Court lacks jurisdiction to resolve
the question presented .................................... 8
B. This case is a poor vehicle to adjudicate
the facial validity of an electronic
communications harassment law .................. 12
II. Section 42.07(a)(7) is Constitutional .................. 14
A. Moore faces a steep burden because he
has challenged section 42.07(a)(7) on its
face .................................................................. 15
B. On its face, section 42.07(a)(7) regulates
conduct, not speech........................................ 15
C. Even if section 42.07(a)(7) regulates some
amount of speech, it is constitutional ........... 19
1. Section 42.07(a)(7) is content neutral ..... 19
2. Privacy interests allow States to pass
content-neutral restrictions such as
section 42.07 ............................................. 21
III
3. Section 42.07(a)(7) would pass strict
scrutiny ..................................................... 23
III. Petitioner’s Contrary Arguments Do Not
Merit Review at the Present Time..................... 24
A. Any split of authority does not merit
this Court’s attention .................................... 24
1. Most courts have held that statutes
criminalizing harassing communications
target conduct, not speech ...................... 24
2. Moore’s contrary authorities either fail
to conduct the relevant analysis or are
distinguishable ......................................... 29
B. This case does not present an issue of
exceptional importance just because the
First Amendment is involved ....................... 31
Conclusion ....................................................................... 33
IV
TA BLE O F AU T HO R I TIE S
Page(s)
Cases:
Am. for Prosperity Found. v. Bonta,
141 S. Ct. 2373 (2021) ..................................................... 1
Arceneaux v. Louisiana,
376 U.S. 336 (1964) (per curiam)................................... 9
Baker v. State,
494 P.2d 68 (Ariz. Ct. App. 1972) ................................ 28
Barr v. Am. Ass’n of Pol. Consultants, Inc.,
140 S. Ct. 2335 (2020) ................................................... 17
Ex Parte Barton,
PD 1123-19, 2022 WL 1021061
(Tex. Crim. App. Apr. 6, 2022) ................ 6, 8, 17, 23, 26
Bd. of Trs. of State Univ. of N.Y. v. Fox,
492 U.S. 469 (1989) .................................................. 12-14
Bolles v. People,
541 P.2d 80 (Colo. 1975) (en banc) .............................. 31
Broadrick v. Oklahoma,
413 U.S. 601 (1973) ........................................... 11, 13, 15
Brockett v. Spokane Arcades, Inc.,
472 U.S. 491 (1985) ....................................................... 11
Cantwell v. Connecticut,
310 U.S. 296 (1940) .................................................. 15-16
Chaplinsky v. New Hampshire,
315 U.S. 568 (1942) ....................................................... 17
City of Montgomery v. Zgouvas,
953 So. 2d 434 (Ala. Crim. App. 2006) .................. 28, 31
Cohen v. California,
403 U.S. 15 (1971) .......................................5-6, 16, 21-23
V
Page(s)
Cases (ctd.):
Commonwealth v. Johnson,
21 N.E.3d 937 (Mass. 2014) .................................... 25-26
Constantino v. State,
255 S.E.2d 710 (Ga. 1979) ............................................ 26
Cox Broad. Corp. v. Cohn,
420 U.S. 469 (1975) .............................................. 9-11, 17
Cox v. Louisiana,
379 U.S. 559 (1965) ................................................. 10, 25
Donley v. City of Mountain Brook,
429 So.2d 603 (Ala. Crim. App. 1982) ......................... 28
Doran v. Salem Inn, Inc.,
422 U.S. 922 (1975) ....................................................... 32
Fort Wayne Books, Inc. v. Indiana,
489 U.S. 46 (1989) ........................................................... 9
Giboney v. Empire Storage & Ice Co.,
336 U.S. 490 (1949) ................................................. 17, 25
Gilbreath v. State,
650 So.2d 10 (Fla. 1995) ............................................... 26
Glickman v. Wileman Bros. & Elliott, Inc.,
521 U. S. 457 (1997) ...................................................... 17
Goodyear Atomic Corp. v. Miller,
486 U.S. 174 (1988) ....................................................... 11
Gormley v. Dir., Conn. State Dep’t of Prob.,
632 F.2d 938 (2d Cir. 1980), cert. denied,
449 U.S. 1023 (1980) ............................................... 20, 28
Ex parte Hinojos,
No. 08-17-00077-CR, 2018 WL 6629678
(Tex. App.-El Paso Dec. 19, 2018, pet. ref'd)
(not designated for publication) .................................... 8
VI
Page(s)
Cases (ctd.):
Jefferson v. City of Tarrant,
522 U.S. 75 (1997) ...................................................... 9-10
Johnson v. California,
541 U.S. 428 (2004) (per curiam)................................... 8
Kinney v. State,
404 N.E.2d 49 (Ind. Ct. App. 1980)............................. 28
Lehi City v. Rickabaugh,
487 P.3d 453 (Utah Ct. App. 2021),
cert. denied, 496 P.3d 714 (Utah 2021) ....................... 26
Lehman v. State,
792 S.W.2d 82 (Tex. Crim. App. 1990) (en banc) ....... 11
Local No. 438 Constr. & Gen. Laborers’ Union v.
Curry,
371 U.S. 542 (1963) ....................................................... 11
Market Street R. Co. v. Railroad Comm'n of Cal.,
324 U.S. 548 (1945) ......................................................... 9
McKillop v. State,
857 P.2d 358 (Alaska Ct. App. 1993)........................... 28
Members of City Council v. Taxpayers for Vincent,
466 U.S. 789 (1984) ....................................................... 15
Mercantile Nat’l Bank v. Langdeau,
371 U.S. 555 (1963) ....................................................... 11
Miller v. California,
413 U.S. 15 (1973) ......................................................... 17
N.D. State Bd. of Pharm. v.
Snyder’s Drug Stores, Inc.,
414 U.S. 156 (1973) ......................................................... 9
Nike, Inc. v. Kasky,
539 U.S. 654 (2003) ....................................................... 12
VII
Page(s)
Cases (ctd.):
Packingham v. North Carolina,
137 S. Ct. 1730 (2017) ............................................. 13, 15
People v. Astalis,
172 Cal. Rptr. 3d 568
(Cal. App. Dep’t Super. Ct. 2014) ......................... 22, 27
People v. Golb,
15 N.E.3d 805 (N.Y. 2014) ...................................... 31-32
People v. Klick,
362 N.E.2d 329 (Ill. 1977) ............................................ 29
People v. Smith,
392 N.Y.S.2d 968 (N.Y. App. Div. 1977)
(per curiam) .................................................................. 28
People v. Taravella,
350 N.W.2d 780 (Mich. Ct. App. 1984) ....................... 28
People v. Weeks,
591 P.2d 91 (Colo. 1979) (en banc) .............................. 26
R.A.V.. v. City of St. Paul,
505 U.S. 377 (1992) ....................................................... 14
Reed v. Town of Gilbert,
576 U.S. 155 (2015) ........................................... 16, 19, 23
Regan v. Time, Inc.,
468 U.S. 641 (1984) ................................................. 12, 14
Reno v. ACLU,
521 U.S. 844 (1997) ....................................................... 12
Romer v. Evans,
517 U.S. 620 (1996) ................................................. 14, 17
Rowan v. U.S. Post Off. Dep't,
397 U.S. 728 (1970) .....................................5-6, 18, 21-23
Sable Commc'ns of Cal., Inc. v. F.C.C.,
492 U.S. 115 (1989) ....................................................... 18
VIII
Page(s)
Cases (ctd.):
Ex Parte Sanders,
No. PD 0469-19, 2022 WL 1021055
(Tex. Crim. App. Apr. 6, 2022) ............................ 6, 8, 26
Scott v. State,
322 S.W.3d 662 (Tex. Crim. App. 2010),
cert. denied, 563 U.S. 936 (2011) .................... 5-6, 17, 29
Ex parte Smith,
178 S.W.3d 797 (Tex. Crim. App. 2005)
(per curiam) .................................................................... 7
Southland Corp. v. Keating,
465 U.S. 1 (1984) ........................................................... 11
State v. Alexander,
888 P.2d 175 (Wash. Ct. App. 1995) ............................ 28
State v. Anonymous (1978-4),
389 A.2d 1270 (Conn. Super. Ct. 1978) ....................... 28
State v. Brobst,
857 A.2d 1253 (N.H. 2004) ........................................... 30
State v. Brown,
266 S.E.2d 64 (S.C. 1980) ............................................. 22
State v. Brown,
85 P.3d 109 (Ariz. Ct. App. 2004) ........................... 28-29
State v. Camp,
295 S.E.2d 766 (N.C. Ct. App. 1982) .......................... 28
State v. Collins,
648 S.W.3d 711 (Mo. 2022) (en banc), as
modified on denial of reh’g (Aug. 30, 2022)............... 30
State v. Crelly,
313 N.W.2d 455 (S.D. 1981) ......................................... 26
State v. Dugan,
303 P.3d 755 (Mont. 2013) ............................................ 26
IX
Page(s)
Cases (ctd.):
State v. Elder,
382 So.2d 687 (Fla. 1980) ............................................. 26
State v. Fin. Am. Corp.,
440 A.2d 28 (N.J. Super. Ct. App. Div. 1981) ............ 28
State v. Gattis,
730 P.2d 497 (N.M. Ct. App. 1986) ....................... 22, 24
State v. Gubitosi,
958 A.2d 962 (N.H. 2008) ........................................ 26-27
State v. Hollins,
620 S.W.3d 400 (Tex. 2020) (per curiam) ................... 18
State v. Jaeger,
249 N.W.2d 688 (Iowa 1977) ........................................ 26
State v. Kipf,
450 N.W.2d 397 (Neb. 1990) ........................................ 22
State v. Kronenberg,
No. 101403, 2015 WL 1255845
(Ohio Ct. App. Mar. 19, 2015) ................................. 27-28
State v. Meunier,
354 So. 2d 535 (La. 1978) ............................................. 26
State v. Mollenkopf,
456 N.E.2d 1269 (Ohio Ct. App. 1982) ........................ 28
State v. Moyle,
705 P.2d 740 (Or. 1985) (en banc) ............................... 26
State v. Richards,
896 P.2d 357 (Idaho Ct. App. 1995) ....................... 27-28
State v. Thompson,
701 P.2d 694 (Kan. 1985) .............................................. 26
State v. Thorne,
333 S.E.2d 817 (W. Va. 1985) ........................... 22, 24-25
X
Page(s)
Cases (ctd.):
State v. Vaughn,
366 S.W.3d 513 (Mo. 2012) (en banc) .......................... 30
Steffel v. Thompson,
415 U.S. 452 (1974) ....................................................... 32
Ex parte Thomas,
906 S.W.2d 22 (Tex. Crim. App. 1995) (en banc) ....... 13
Thorne v. Bailey,
846 F.2d 241 (4th Cir. 1988),
cert. denied, 488 U.S. 984 (1988) ........................... 20, 28
Time, Inc. v. Hill,
385 U.S. 374 (1967) ....................................................... 17
United States v. Ackell,
907 F.3d 67 (1st Cir. 2018) ........................................... 30
United States v. Conlan,
786 F.3d 380 (5th Cir. 2015) ........................................ 28
United States v. Fleury,
20 F.4th 1353 (11th Cir. 2021) ..................................... 30
United States v. Lampley,
573 F.2d 783 (3d Cir. 1978) .............................. 20, 23, 28
United States v. Petrovic,
701 F.3d 849 (8th Cir. 2012) ........................................ 28
United States v. Sayer,
748 F.3d 425 (1st Cir. 2014) ......................................... 28
United States v. Sryniawski,
48 F.4th 583 (8th Cir. 2022) ......................................... 30
United States v. Waggy,
936 F.3d 1014 (9th Cir. 2019),
cert. denied, 141 S. Ct. 138 (2020) ............................... 28
United States v. Yung,
37 F.4th 70 (3d Cir. 2022) ............................................ 30
XI
Page(s)
Cases (ctd.):
von Lusch v. State,
387 A.2d 306 (Md. Ct. Spec. App. 1978) ..................... 28
Ward v. Rock Against Racism,
491 U.S. 781 (1989) ....................................................... 21
In re Welfare of A.J.B.,
929 N.W. 2d 840 (Minn. 2019) ..................................... 30
Wilson v. State,
448 S.W.3d 418 (Tex. Crim. App. 2014).................. 5, 20
Yates v. Commonwealth,
753 S.W.2d 874 (Ky. Ct. App. 1988) ............................ 22
Younger v. Harris,
401 U.S. 37 (1971) ..................................................... 9, 10
Zinermon v. Burch,
494 U.S. 113 (1990) ....................................................... 17
Constitutional Provisions, Statutes, and Rules:
U.S. Const. amend. I ................ I, 1, 2, 6-7, 11-12, 14-15, 17,
19, 21, 24-25, 27, 31-32
28 U.S.C.:
§ 1257 ............................................................................. 10
§ 1257(a) ....................................................................... 8-9
Act of May 27, 2017, § 18, 2017 Tex. Gen.
Laws at 1407 ................................................................... 4
Act of May 27, 2017, 85th Leg., R.S., ch.
522, 2017 Tex. Gen. Laws 1400 ..................................... 4
Ala. Code § 13A-11-8(b)(1)................................................... 2
Ariz. Rev. Stat. § 13-2921(A)(1) .......................................... 2
Cal. Penal Code § 653m(b) .................................................. 2
Idaho Code § 18-6710(1) ...................................................... 2
Mass. Gen. Laws ch. 265, § 43A(a) ................................... 25
XII
Page(s)
Constitutional Provisions, Statutes, and Rules (ctd.):
Md. Code, Crim. Law § 3-804(a)(2) .................................... 2
N.C. Gen. Stat. § 14-196(a)(3) ............................................. 2
N.M. Stat. § 30-20-12(A) ...................................................... 2
Ohio Rev. Code § 2917.21 .................................................... 2
Tex. Civ. Prac. & Rem. Code ch. 129A............................... 4
Tex. Gov’t Code § 311.032(c) ............................................. 11
Tex. Penal Code:
§ 6.03(a) ...................................................................... 3, 17
§ 12.22 .............................................................................. 3
§ 42.07 .................................................................... 2, 4, 21
§ 42.07(a) .......................................................................... 3
§ 42.07(a)(1) ..................................................................... 2
§ 42.07(a)(2) ................................................................. 2, 7
§ 42.07(a)(3) ..................................................................... 2
§ 42.07(a)(4) .................................................. 4-5, 7, 11, 13
§ 42.07(a)(7) ..................... I, 3-4, 7-8, 11-12, 14-19, 21-23
§ 42.07(b)(1) ..................................................................... 3
§ 42.07(b)(1)(A) ............................................................... 4
§ 42.07(c) ................................................................ 2, 7, 11
§ 42.07(c)(2) ..................................................................... 4
Sup. Ct. R.:
10(a) ............................................................................... 24
14.1(g)(i)......................................................................... 10
Other Authorities:
Andrea Meryl Kirshenbaum, Hostile
Environment Sexual Harassment Law and
the First Amendment: Can the Two Coexist
Peacefully?, 12 TEX. J. WOMEN & L. 67 (2002) ........... 1
XIII
Page(s)
Other Authorities (ctd.):
Legislation, David’s Legacy Foundation,
https://www.davidslegacy.org/program
s/legislation/ .................................................................... 4
Megan Moreno, Electronic Harassment:
Concept Map and Definition, NAT’L INST.
OF JUST. (May 2016) ................................................. 1, 13
Respondent’s Response to Petition for Certiorari,
Netchoice, LLC v. Paxton,
No. 22-555 (U.S. Dec. 20, 2022) ................................... 32
Sharon Reynolds, Cyberbullying linked with
suicidal thoughts and attempts in young adults,
NAT’L INSTS. OF HEALTH (July 12), 2022,
https://tinyurl.com/2a4bhu6x ........................................ I
Stephen M. Shapiro, et al., SUPREME COURT
PRACTICE (11th ed. 2019) ......................................... 9-10
INT RO D U C TIO N
Courts and commentators have long recognized that
balancing the interests of a speaker to communicate and
of a listener to be free from harassment presents unique
First Amendment challenges. 2 The federal government
and the States have adopted laws to prevent various
types of harassment, which can often be read to encompass verbal activity. Nevertheless, courts regularly uphold those laws against First Amendment challenges as
permissible restrictions on conduct so long as they do not
target particular ideologies or create classes of speakers.
Although Texas has had to adapt its anti-harassment
statute to the nebulous ways in which harassment is now
often perpetrated online, it fits within this tradition. 3
The Court likely cannot—and certainly need not—
reach challenges to Texas’s law in the posture of a state
court’s denial of a pre-trial writ of habeas corpus. Moore
has been accused not convicted of harassing his ex-partner through repeated electronic messages. Although the
Court has permitted certain pre-enforcement challenges
to laws allegedly implicating the First Amendment, it
has done so to mitigate a potential chill of vital constitutional rights through self-censorship. That concern is not
implicated here: whether Moore’s messages were protected communications or criminal harassment, they are
in the past. Under these circumstances, the Court likely
Cf., e.g., Am. for Prosperity Found. v. Bonta, 141 S. Ct. 2373,
2389 (2021); Andrea Meryl Kirshenbaum, Hostile Environment
Sexual Harassment Law and the First Amendment: Can the Two
Coexist Peacefully?, 12 TEX. J. WOMEN & L. 67, 82 & nn.90-91
(2002).
2
For a discussion of difficulties in defining, let alone combatting
electronic harassment, see Megan Moreno, Electronic Harassment:
Concept Map and Definition, NAT’L INST. OF JUST. (May 2016).
3
(1)
2
must and certainly should wait until there is a factual
record to review and a conviction to overturn.
Review is also unwarranted because Texas’s law falls
within constitutional bounds—as numerous lower courts
have held in reviewing similar laws. It targets specific
forms of anti-social and potentially dangerous conduct by
prohibiting the repeated transmission of electronic signals—some of which can communicate First-Amendment protected ideas, some of which indisputably do not.
To avoid sweeping into its ambit innocent or protected
conduct, the law also imposes a specific-intent requirement. This law and others like it thus balance the interests of those legitimately trying to communicate with the
privacy interests of individuals just trying to do their
jobs and live their lives.
JU R ISD IC T IO N
The Court lacks jurisdiction. Infra Part I.A.
ST ATE ME N T
I. Legal Background
A. Like most (if not all) States, 4 Texas has a criminal
harassment statute: section 42.07 of the Texas Penal
Code prohibits conduct ranging from making obscene
proposals, Tex. Penal Code § 42.07(a)(1), to threatening
an individual with bodily injury, id. § 42.07(a)(2), to conveying a false report that someone has died, id.
§ 42.07(a)(3). The first violation of section 42.07 is a Class
B misdemeanor, id. § 42.07(c), punishable by fine of up to
For just a few representative samples, see Ala. Code § 13A-118(b)(1); Ariz. Rev. Stat. § 13-2921(A)(1); Cal. Penal Code § 653m(b);
Idaho Code § 18-6710(1); Md. Code, Crim. Law § 3-804(a)(2); N.M.
Stat. § 30-20-12(A); N.C. Gen. Stat. § 14-196(a)(3); Ohio Rev. Code
§ 2917.21.
4
3
$2000, and confinement in jail for up to 180 days, id.
§ 12.22.
Subsection (a)(7) prohibits individuals with the requisite specific intent from “send[ing] repeated electronic
communications in a manner reasonably likely to harass,
annoy, alarm, abuse, torment, embarrass, or offend another.” Id. § 42.07(a)(7). Although use of the term “communication” appears to imply that it covers speech, it is
narrowly defined to consist of 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.” Id. § 42.07(b)(1). This 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 Internet-based communication tool, or facsimile machine; and
(B) a communication made to a pager.
Id.
For criminal liability to attach under any part of section 42.07, including subsection (a)(7), an individual must
have specifically intended to “harass, annoy, alarm,
abuse, torment, or embarrass another.” Tex. Penal Code
§ 42.07(a). Under Texas law, “[a] person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious
objective or desire to engage in the conduct or cause the
result.” Id. § 6.03(a).
B. In 2017, the Texas Legislature expanded section 42.07(a)(7) in new anti-bullying legislation, known as
David’s Law. Named after a 16-year-old boy who took his
4
own life after an unending barrage of threatening and
humiliating texts and social media posts, David’s law
passed with overwhelming bipartisan support. Act of
May 27, 2017, 85th Leg., R.S., ch. 522, 2017 Tex. Gen.
Laws 1400, 1400-08; see also Legislation, David’s Legacy
Foundation,
https://www.davidslegacy.org/programs/legislation/.
David’s Law expanded the definition of “electronic
communication” to include such things as social media
messages. Tex. Penal Code § 42.07(b)(1)(A). The Legislature also made violating section 42.07(a)(7) a Class A
misdemeanor when the offense is committed against a
child under 18 with the intent that the child commit suicide or engage in conduct causing serious bodily injury
to the child; or if the individual has previously violated a
temporary restraining order or injunction issued to stop
that individual from cyberbullying a child. Id.
§ 42.07(c)(2); Tex. Civ. Prac. & Rem. Code ch. 129A.
David’s Law became effective on September 1, 2017.
Act of May 27, 2017, supra, § 18, 2017 Tex. Gen. Laws at
1407. And initial indications are that it worked: electronic
bullying and suicide attempts resulting therefrom
dropped more than 20% in Texas schools during the first
two years after the law’s enactment. Legislation, supra
(citing data collected by the CDC).
C. Texas courts have seen several challenges to section 42.07 in recent years. The first one relevant to the
current case addresses not section 42.07(a)(7), but section 42.07(a)(4), which prohibits “caus[ing] the telephone
of another to ring repeatedly or mak[ing] repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment,
embarrass, or offend another.” That provision was challenged as overbroad and an infringement upon speech in
5
Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010),
cert. denied, 563 U.S. 936 (2011).
In Scott, the Texas Court of Criminal Appeals
(CCA)—the State’s highest court for criminal matters—
looked to this Court’s statement in Cohen v. California
that “government may properly act in many situations to
prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned
from the public dialogue.” 403 U.S. 15, 21 (1971) (citing
Rowan v. U.S. Post Off. Dep’t, 397 U.S. 728 (1970)); see
Scott, 322 S.W.3d at 668-69. From this premise, the CCA
first examined whether section 42.07(a)(4) was aimed at
protected “communicative conduct.” Scott, 322 S.W.3d at
669-70. The court concluded that it was not and based
their conclusion on four factors:
• the actor must have the specific intent to harass,
annoy, alarm, abuse, torment, or embarrass the
recipient,
• there must be repeated communicative conduct, 5
• the actor must partake in the communicative conduct in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend
an average person, and
• the actor is not required to use spoken words.
Id.
Given that statutory text, the court concluded that
“the conduct to which the statutory subsection is susceptible of application will be, in the usual case, essentially
noncommunicative, even if the conduct includes spoken
words.” Id. at 670. After all, due to the specific-intent requirement about which Moore complains (e.g., at 16-19),
To be “repeated,” the statute requires more than one call. Wilson v. State, 448 S.W.3d 418, 424 (Tex. Crim. App. 2014).
5
6
violators “will not have an intent to engage in the legitimate communication of ideas, opinions, or information,”
but “only the intent to inflict emotional distress for its
own sake.” Scott, 322 S.W.3d at 670.
Since Scott, a number of cases have presented the
question of how Scott—and more importantly Cohen and
Rowan—apply to David’s Law. In the two lead cases, the
CCA held that, like the telephone-harassment law before
it, David’s Law did not “implicate the freedom of speech
protections of the First Amendment of the United States
Constitution because it prohibits non-speech conduct.”
Ex Parte Barton, PD 1123-19, 2022 WL 1021061 at *1
(Tex. Crim. App. Apr. 6, 2022); see also Ex Parte Sanders, No. PD 0469-19, 2022 WL 1021055, at *1 (Tex. Crim.
App. Apr. 6, 2022). Because of this holding, the CCA evaluated the rule under the rational-basis test and determined that because the statute protects individuals’
“substantial privacy interests” from the invasion of those
interests “in an essentially intolerable manner” by others, the statute was rationally related to the legitimate
end of protecting “the peace, health, happiness, and general welfare” of society and people in the State. Barton,
2022 WL 1021061 at *7. This case is a follow-on from Barton and Sanders.
II. Factual Background
Because this case remains in its infancy, little is in the
record about what Moore said to his ex-partner. According to the charging documents, on or about April 19,
2019, Moore sent repeated electronic communications
and telephone calls to his ex-partner, Kimberly
McCurdy, “in a manner reasonabl[y] likely to harass,
7
annoy, alarm, abuse, torment, embarrass, or offend . . . .”
CR.4-5. 6
In May, the State charged Moore under Texas Penal
Code section 42.07(c) in Andrews County, Texas, for harassment, using both the manner and means prohibited
under section 42.07(a)(4) and (a)(7). CR.5. Specifically,
Moore was charged with repeatedly causing McCurdy’s
telephone to ring and sending electronic communications
to McCurdy in a manner intending and reasonably likely
to harass, alarm, annoy, abuse, torment, embarrass, or
offend her. App. 12-13a. In June 2019, charges were
added that Moore threatened McCurdy in violation of
section 42.07(a)(2). App. 8a-11a.
Moore has not placed into the record the content of
the alleged “repeated electronic communications.” And
the time for the State to do so has not yet come.
III. Procedural Background
This petition comes before the Court based on the denial of a pretrial writ of habeas corpus. App. 3a. 7 Moore
argues that section 42.07(a)(7) is facially overbroad under the First Amendment. 8 CR.15. He asserts that the
First Amendment applies because “[a] court cannot determine whether or not a defendant intended to harass,
without looking at the content of the electronic communications.” CR.18. He further contends that the statute
“CR. XX” refers to the Clerk’s Record filed in Texas v. Moore,
No. 19-0135, County Court of Andrews County, Texas.
6
Moore also moved to quash the information, CR.14, which is
an alternative means to challenge an information pre-trial. Ex parte
Smith, 178 S.W.3d 797, 801 (Tex. Crim. App. 2005) (per curiam). But
it is not appealable. Id.
7
Moore also argued that it was unconstitutionally vague, but he
has abandoned that argument in his petition.
8
8
is subject to and cannot withstand strict scrutiny because
“[p]reventing hurt feelings is not a compelling government interest.” CR.22.
Andrews County Court summarily denied Moore the
extraordinary relief he sought. App. 3a. The Eighth
Court of Appeals affirmed in an unpublished opinion.
App. 4a (citing Ex parte Hinojos, No. 08-17-00077-CR,
2018 WL 6629678 (Tex. App.—El Paso Dec. 19, 2018, pet.
ref’d) (not designated for publication)). The CCA denied
discretionary review in the light of its decisions in Barton and Sanders. App. 1a.
ARGU ME N T
I. The Court Cannot—or at Least Should Not—
Delve into This Interlocutory Decision Arising
from a State Court.
The Court lacks jurisdiction over the petition because
this case arises from a Texas state court and there is no
“[f]inal judgment[] or decree[] rendered by the highest
court of a State.” 28 U.S.C. § 1257(a). Moore bears the
burden to show that this Court has jurisdiction. Johnson
v. California, 541 U.S. 428, 431 (2004) (per curiam).
Moore cannot demonstrate that “essential prerequisite”
to this Court’s review based on the denial of a pre-trial
writ of habeas corpus. Id. Even if he could, the preliminary posture of this case makes it a poor vehicle to resolve either whether section 42.07(a)(7) is facially unconstitutional or whether it can be constitutionally applied
to Moore.
A. This Court lacks jurisdiction to resolve the
question presented.
This petition falls outside the Court’s jurisdiction
over appeals from state-court judgments, which is limited to final judgments. 28 U.S.C. § 1257(a). As this case
9
presents none of the narrow circumstances this Court
has identified under which an interlocutory order may be
deemed final, Cox Broad. Corp. v. Cohn, 420 U.S. 469,
476-85 (1975), the Court lacks jurisdiction.
1. This Court’s “certiorari jurisdiction over cases in
the federal courts of appeals” has been described as
“both discretionary and unlimited in scope.” Stephen M.
Shapiro, et al., SUPREME COURT PRACTICE ch. 2-2 (11th
ed. 2019). By contrast, as it applies to state courts, section 1257(a) “establishes a firm final judgment rule,”
which is “not one of those technicalities to be easily
scorned,” but “an important factor in the smooth working of our federal system.” Jefferson v. City of Tarrant,
522 U.S. 75, 81 (1997). “To be reviewable by this Court, a
state-court judgment must be . . . ‘final as an effective determination of the litigation and not merely interlocutory
or intermediate steps therein.’” Id. (quoting Market
Street R. Co. v. Railroad Comm'n of Cal., 324 U.S. 548,
551 (1945)); see also N.D. State Bd. of Pharm. v. Snyder’s
Drug Stores, Inc., 414 U.S. 156, 159 (1973).
The denial of pre-trial habeas corpus is, if anything,
the prototypical interlocutory order. In the context of a
criminal prosecution, “[t]he general rule is that finality
. . . is defined by a judgment of conviction and the imposition of a sentence.” Fort Wayne Books, Inc. v. Indiana,
489 U.S. 46, 54 (1989); see also Arceneaux v. Louisiana,
376 U.S. 336, 338 (1964) (per curiam). Moore has not yet
been tried, and he may never be convicted or sentenced.
Due to the “sensitivity to the legitimate interests” of a
State in enforcing its criminal law, the Court has developed an entire doctrine to prevent federal courts from
interfering in ongoing criminal prosecutions. Younger v.
Harris, 401 U.S. 37, 44 (1971). Although that doctrine
does not directly apply here, it is founded on “ideals and
10
dreams of ‘Our Federalism’” that do, id., and that prevent the Court from stepping into an ongoing criminal
prosecution before there is a “final word of a final court,”
Jefferson, 522 U.S. at 81.
2. This Court deems an interlocutory state-court order to be final for purposes of section 1257 under only
limited circumstances. Shapiro, supra, at ch. 3.5. And
Moore has made no attempt to explain why the CCA’s
“avowedly interlocutory” ruling satisfies the final judgment rule. Jefferson, 522 U.S. at 81. Moore should thus
be deemed to forfeit any such argument, and this Court
should dismiss the petition on that ground alone as such
a showing is required in a petition for certiorari. Sup. Ct.
R. 14.1(g)(i).
In any event, none of the Cox exceptions apply to this
case. Indeed, only the fourth category identified in Cox
seems even potentially relevant. 420 U.S. at 476-85. Specifically, under that category, a judgment may be considered “final” if “the federal issue has been finally decided,” leaving only state-law issues to be resolved. Id. at
482. To fit within that category, this Court’s review must
be “preclusive of any further litigation on the relevant
cause of action rather than merely controlling the nature
and character of, or determining the admissibility of evidence in, the state-proceedings still to come.” Id. at 48283. If such circumstances are present, and a refusal to
immediately review the state-court decision would “seriously erode federal policy,” the Court may deem an order
final as to the federal issue. Id. at 483.
It unclear whether this category of Cox can apply in
a criminal case as there is no “relevant cause of action,”
id.—a term typically used in civil contexts. But assuming
it can, it would not apply here because—unlike in Cox
and subsequent applications of this rule, id. at 485-86—a
11
ruling here would not even end the current litigation, let
alone preclude future litigation. 9 Moore was charged
with harassment under section 42.07(c), by means of conduct prohibited by both section 42.07(a)(4) and (a)(7).
App. 8a. This means Moore is in jeopardy of one conviction—and one punishment—for one count of harassment
under section 42.07(c), whether either or both of “manner” and “means” is proven at trial. Compare App. 8a,
with, e.g., Lehman v. State, 792 S.W.2d 82, 84 (Tex. Crim.
App. 1990) (en banc). But Moore challenges the validity
of only section 42.07(a)(7). See Pet. i.
Because Moore has challenged only one of the two
means by which he could be convicted, any remedy would
“merely control[] the nature and character of . . . the
state proceedings still to come”—not be “preclusive of
any further litigation on the relevant cause of action.”
See Cox, 420 U.S. at 482-83. It is an “elementary principle that the same statute may be in part constitutional
and in part unconstitutional, and that if the parts are
wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will
be rejected.” Brockett v. Spokane Arcades, Inc., 472 U.S.
491, 502 (1985). Texas law presumes that statutory provisions are severable. Tex. Gov’t Code § 311.032(c). This
principle applies even when a statute is determined to be
overbroad under the First Amendment. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).
Although Moore is not entitled to any relief, see infra
Part II, he could at most obtain a partial invalidation of
See, e.g., Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 17980 (1988); Southland Corp. v. Keating, 465 U.S. 1, 6-8 (1984); Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 558 (1963); Local No.
438 Constr. & Gen. Laborers’ Union v. Curry, 371 U.S. 542, 550
(1963).
9
12
the statute and a remand for further proceedings under
the remaining unchallenged portion of the statute. See
Reno v. ACLU, 521 U.S. 844, 882-83 (1997) (severing “or
indecent” from the prohibition on “obscene or indecent”).
Therefore the state-court decision is not final, Nike, Inc.
v. Kasky, 539 U.S. 654, 658-60 (2003) (Stevens, J., concurring), and the petition must be dismissed.
B. This case is a poor vehicle to adjudicate the
facial
validity
of
an
electronic
communications harassment law.
Even if this Court could consider the question presented, the case’s posture makes it a poor vehicle to address section 42.07(a)(7)’s constitutionality. Assuming
that Moore is correct (at 17) that section 42.07(a)(7) is
subject to strict scrutiny—and he is not, infra pp. 23—
the procedural history of this case means that the State
has never had the opportunity to build the type of record
necessary to determine the statute’s validity. Bd. of Trs.
of State Univ. of N.Y. v. Fox, 492 U.S. 469, 484-85 (1989).
As this Court previously noted, it is “not the usual judicial practice” nor is it “generally desirable” to “proceed
to an overbreadth issue unnecessarily” in such a posture.
Id. It should be particularly leery of doing so based on
nothing more than a charging instrument when Moore
may yet be acquitted without ever reaching the constitutional question presented.
1. “It is important to remember that the overbreadth doctrine operates as an exception to the normal
rules of standing,” not a substantive expansion of the
coverage of the First Amendment. Regan v. Time, Inc.,
468 U.S. 641, 651 n.8 (1984). An overbreadth challenge is
“ordinarily more difficult to resolve” than an as-applied
challenge because it requires the “consideration of many
more applications than those immediately before the
13
court.” Fox, 492 U.S. at 485 (citing Broadrick, 413 U.S.
at 615). That problem is only exacerbated in the context
of electronic harassment because courts “cannot appreciate yet [the internet’s] full dimensions and vast potential” and “must be conscious that what they say today
might be obsolete tomorrow.” Packingham v. North
Carolina, 137 S. Ct. 1730, 1736 (2017); see also id. at 1744
(Alito, J., concurring) (agreeing that the Court should be
“cautious in applying [its] free speech precedents to the
internet”).
This case exemplifies the concerns inherent in a facial
challenge of this sort. It has arrived at the Court with no
record about what was in Moore’s messages, little information about the use of the electronic communications,
and no opportunity for any factual development. There
is no factual record regarding the extent of the problem
of electronic harassment and whether there are feasible
options to more narrowly tailor David’s Law in a world
of constant communication. See Moreno, supra (highlighting difficulties in regulating in this area).
2. Perhaps even more fundamentally, Moore could
be found not guilty of harassment altogether, or only
guilty of harassment under the manner and means laid
out in section 42.07(a)(4). The Texas Rules of Appellate
Procedure placed on Moore the burden to provide any
evidence needed to show their entitlement to a writ of
habeas corpus with their applications. Ex parte Thomas,
906 S.W.2d 22, 24 (Tex. Crim. App. 1995) (en banc). Yet
the record is silent on the context or circumstances surrounding Moore’s electronic communications—leaving a
presumption of innocence and no data from which to assess whether the State will be able to convince a jury of
Moore’s guilt.
14
By contrast, we do know that Moore was accused of
threatening his ex-partner. App. 9a. It is black-letter law
that the First Amendment does not protect true threats.
R.A.V.. v. City of St. Paul, 505 U.S. 377, 387-88 (1992). It
is thus impossible for the CCA or this Court to determine
whether Moore’s conduct was or was not protected by
the First Amendment. That does not change because
Moore raised an overbreadth challenge. Regan, 468 U.S.
at 651. And “for reasons relating both to the proper functioning of courts and to their efficiency,” the constitutionality of section 42.07(a)(7), as applied to Moore,
should be decided prior to any overbreadth challenge.
Fox, 492 U.S. at 485.
For these reasons, the Court should refrain from
making new law regarding the intersection of the First
Amendment and the internet and cell phones even if the
Court were to determine it had jurisdiction (which it
should not).
II. Section 42.07(a)(7) is Constitutional.
Review is also unwarranted regardless of whether
section 42.07(a)(7) constitutionally applies to Moore
(which is not at issue here), as it does not facially violate
the First Amendment. Petitioners always face a heavy
burden to establish a facial challenge—even on an overbreadth theory. Moore cannot meet that burden because
section 42.07(a)(7) on its face regulates the repeated
transmission of electronic data—even if that data may
include (at times) verbal content. Therefore, it is subject
to rational-basis review. See Romer v. Evans, 517 U.S.
620 (1996). And even if section 42.07(a)(7) is construed to
regulate some forms of speech, it would meet the relevant test because the State may protect the privacy and
safety of its citizens against electronic harassment.
15
A. Moore faces a steep burden because he has
challenged section 42.07(a)(7) on its face.
As the Court has recognized, the overbreadth doctrine is “less rigid” when dealing with “conduct in the
shadow of the First Amendment.” Broadrick, 413 U.S. at
614-15. The use of a facial overbreadth claim thus “attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct and that conduct—even if expressive—
falls within the scope of otherwise valid criminal laws
that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally
unprotected conduct.” Id. at 615.
Texas’s statute and others like it apply to harassing
conduct, not speech. See supra pp. 3-4; App. 11a-17a.
Consequently, any overbreadth must be “real” and “substantial” when judged in relation to the statute’s “plainly
legitimate sweep.” Broadrick, 413 U.S. at 615. Moore’s
speculation about what could happen under Texas’s law
is insufficient to meet that burden. See Members of City
Council v. Taxpayers for Vincent, 466 U.S. 789, 800
(1984). Thus, even if Texas’s law regulates constitutionally protected speech on the margins, Moore cannot meet
his burden unless he is able to show that it does so on its
face.
B. On its face, section 42.07(a)(7) regulates
conduct, not speech.
In hopes of meeting this burden, Moore asks this
Court to skip the essential question: does the statute
criminalize speech or conduct? That is wrong. As this
Court has recently reaffirmed, “[s]pecific criminal acts
are not protected speech even if speech is the means for
their commission.” Packingham, 137 S. Ct. at 1737 (emphasis added). And, as this Court indicated in Cantwell
16
v. Connecticut, harassing conduct may permissibly be
criminalized: “[r]esort to epithets or personal abuse is
not in any proper sense communication of information or
opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that
instrument.” 310 U.S. 296, 309-10 (1940).
1. Section 42.07(a)(7) constitutionally criminalizes
conduct, not speech, as evidenced by (1) the specific-intent requirement, (2) the requirement of repeated acts,
and (3) the reasonable-person standard. Tex. Penal Code
§ 42.07(a)(7). Typically, a law regulates speech and its
content “if a law applies to particular speech because of
the topic discussed or the idea or message expressed.”
Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). On its
face, section 42.07(a)(7) regulates the manner in which
one sends a signal via an electronic device—not the composition of the signal. The law applies to repeated transmissions regardless of whether they are emails, texts,
messages, etc., or whether they express affection, attempt to persuade someone to commit suicide, contain
nude pictures, or are entirely empty.
To the extent any communicative conduct might be
included, such limitations are justified to prevent intolerable intrusions into significant privacy interests. As
long recognized by this Court, “[t]he ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other
words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” Cohen, 403 U.S. at 21. Put another way,
section 42.07(a)(7) does not criminalize electronic communications based on any particular content or content
in general, but instead criminalizes the repeated dispatch of communications that is conducted with a certain
17
intent and likely to have a certain effect on a reasonable
recipient.
Though Moore repeatedly disparages it (e.g., at 1619) the specific-intent requirement serves to limit the impact of section 42.07(a)(7) on protected activity. Under
Texas law, “intent” requires proof that it is the individual’s “conscious objective or desire to engage in the conduct or cause the result.” Tex. Penal Code § 6.03(a). And
the CCA has determined that this intent requirement
means that the individual must have the goal of “inflict[ing] emotional distress for its own sake.” Ex parte
Barton, 2022 WL 1021061, at *4 (quoting Scott, 322
S.W.3d at 670). Although “speech” in a colloquial sense,
verbal utterances made with such an intent—and that
are reasonably likely to achieve that intent, as is also required by Texas law, Tex. Penal Code § 42.07(a)(7)—fall
outside the protections afforded by the First Amendment. See, e.g., Barr v. Am. Ass’n of Pol. Consultants,
Inc., 140 S. Ct. 2335 (2020); Cox, 420 U.S. at 488; Miller
v. California, 413 U.S. 15 (1973); Time, Inc. v. Hill, 385
U.S. 374, 383 n.7 (1967); Giboney v. Empire Storage &
Ice Co., 336 U.S. 490 (1949); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
2. Because section 42.07(a)(7) falls outside the First
Amendment, and neither implicates any other fundamental right nor targets a suspect class, the appropriate
standard of review is whether it bears “a rational relation
to some legitimate end.” Romer, 517 U.S. at 631; see also
Glickman v. Wileman Bros. & Elliott, Inc., 521 U. S. 457,
469-70, 477 (1997). And because Moore has not even addressed the law under this standard, he has forfeited any
such arguments, cf. Zinermon v. Burch, 494 U.S. 113,
126 (1990), and has further reinforced that this case is a
18
poor vehicle to review these sorts of laws. Any argument
Moore may have raised, however, would fail.
This Court has recognized that States have a legitimate interest in protecting the psychological well-being
of minors, Sable Commc'ns of Cal., Inc. v. F.C.C., 492
U.S. 115, 126 (1989), as well as protecting adults from
harassment in places where they have an expectation of
privacy, see, e.g., Rowan, 397 U.S. at 729-30. Section
42.07(a)(7) rationally relates to these legitimate state
purposes by prohibiting conduct that has been shown to
lead minors to suicide or serious self-harm, and by preserving the considerable privacy interests of adults from
being inundated with unwanted electronic mailings to
their private inboxes.
Moore tries to avoid this conclusion by distorting section 42.07(a)(7) in two ways. Neither has merit.
First, he suggests (at 34) that because religious organizations using the internet to spread their messages
may use speech some find “insulting and even outrageous,” the statute prohibits protected speech. To the extent Moore implies (at 34) that David’s Law prohibits
posting such religious content on the internet, it ignores
that section 42.07(a)(7) prohibits “send[ing] repeated
electronic communications in a manner reasonably likely
to” have a detrimental impact on “another.” Texas law
routinely distinguishes between sending direct communications and posting things on the internet. Cf. State v.
Hollins, 620 S.W.3d 400, 407 (Tex. 2020) (per curiam). To
the extent that Moore suggests that religious groups will
directly (and repeatedly) send harassing communications
via electronic means, he notably does not point to any actual case in which Texas or any State with a similar law
has attempted to apply it in such a manner. In the unlikely
19
event that were to occur, it would be better addressed in
an as-applied challenge—not a facial one. Supra p. 14.
Second, Moore’s conflates (at 34-35) the possible effect of the communication with the intent behind the
communication. For example, Moore suggests (at 34)
that someone who expresses an opinion about one of this
Court’s decisions that annoys the recipient might be liable under the statute, thus allegedly showing that section
42.07(a)(7) runs afoul of the First Amendment and deserves heightened scrutiny. But in the mine run of cases,
the intent of such messages is to express opinion—not to
annoy the ideological interlocutor for the sake of annoying him. Moore’s other hypotheticals (e.g., at 9, 21) are
similar: all seek to communicate an idea or persuade the
listener—albeit in a potentially annoying way—not to
cause annoyance or emotional distress for its own sake.
These efforts to misconstrue the statute do not transform a permissible regulation of conduct into a facial violation of the First Amendment that requires heightened
scrutiny. Therefore, rational-basis review applies and is
easily satisfied by section 42.07(a)(7), which is reasonably related to guarding children against suicide and
adults against harassing conduct.
C. Even if section 42.07(a)(7) regulates some
amount of speech, it is constitutional.
1. Section 42.07(a)(7) is content neutral.
Even if the Court were to conclude that Texas’s statute limits speech rather than conduct, it is still constitutional because it is content-neutral and reasonable.
Moore asserts sans authority that section 42.07(a)(7)
criminalizes speech based on whether its content is
“alarming, embarrassing, or offensive.” Pet. 32. But the
face of section 42.07(a)(7) makes no such distinctions. See
Reed, 576 U.S. at 165-66.
20
The content of the communication may be relevant to
the intent and effect, but it does not determine whether
the electronic communication is prohibited. As the Second Circuit has explained regarding a similar statute,
“[a] recital on the telephone of the most sublime prayer
with the intention and effect of harassing the listener
would fall within its ban as readily as the most scurrilous
epithet.” Gormley v. Dir., Conn. State Dep't of Prob., 632
F.2d 938, 942 (2d Cir. 1980), cert. denied, 449 U.S. 1023
(1980).
But David’s Law does not regulate based on content.
For example, “I love watching you sleep” is an expression of affection between newlyweds, but alarming (and
potentially criminally harassing) if sent from an abusive
ex-partner—even if both are repeatedly transmitted via
text. Or take the facts of Wilson, where a defendant argued that he could not be guilty because the content of
his telephone calls was benign. 448 S.W.3d at 425. The
CCA rejected that argument because “[b]enign content
does not always prove benign intent.” Id. Instead, the
content of the communication is simply evidence to support whether it was sent with unlawful intent and
whether it would be reasonably likely to cause emotional
distress. See id. at 422 & n.12.
Where, as here, an anti-harassment statute’s “narrow
intent requirement precludes the proscription of mere
communication,” the lower courts agree that “the nature
of the conversation can have no bearing on the constitutionality of the section.” United States v. Lampley, 573
F.2d 783, 787 (3d Cir. 1978); accord Thorne v. Bailey, 846
F.2d 241, 244 (4th Cir. 1988), cert. denied, 488 U.S. 984
(1988); infra Part II.A.
21
2. Privacy interests allow States to pass
content-neutral restrictions such as
section 42.07.
Because (to the extent it regulates speech) section
42.07(a)(7) is content-neutral, it is subject to the same requirements as other time, place, and manner restrictions—namely, that it be narrowly tailored to serve
a legitimate government interest. Ward v. Rock Against
Racism, 491 U.S. 781, 798 (1989). Section 42.07(a)(7) easily satisfies that test under this Court’s existing precedent, which balances the speaker’s right to communicate
with the recipient’s right to be left alone and the State’s
ability to protect essential privacy interests. This principle originates in two of this Court’s cases.
First, in Rowan, this Court rejected a First Amendment challenge to a federal law allowing individuals to
bar mail from senders they found objectionable. 397 U.S.
at 729-30. Balancing the right of an individual “to be let
alone” with the right of others to communicate, the Court
held that “a sufficient measure of individual autonomy
must survive to permit every householder to exercise
control over unwanted mail,” and that “a mailer’s right
to communicate must stop at the mailbox of an unreceptive addressee.” Id. at 736-37. The Court concluded that
“no one has a right to press even ‘good’ ideas on an unwilling recipient.” Id. at 738.
Second, this Court reaffirmed the importance of
those privacy concerns in Cohen, which observed that
“[t]he ability of government, consonant with the Constitution, to shut off discourse solely to protect others from
hearing it is, in other words, dependent upon a showing
that substantial privacy interests are being invaded in an
essentially intolerable manner.” 403 U.S. at 21.
22
Because those privacy interests remain unchanged
no matter the form of communication, many lower courts
have applied Rowan and Cohen to electronic harassment
statutes. For example, citing Cohen, courts in States
from South Carolina to California, and West Virginia to
New Mexico have concluded that the use of the telephone
involves “substantial privacy interests” and that the
State has a “legitimate interest in prohibiting obscene,
threatening or harassing telephone calls.” State v.
Brown, 266 S.E.2d 64, 65 (S.C. 1980); People v. Astalis,
172 Cal. Rptr. 3d 568, 573-74 (Cal. App. Dep’t Super. Ct.
2014); see also State v. Thorne, 333 S.E.2d 817, 819 (W.
Va. 1985); State v. Gattis, 730 P.2d 497, 501-02 & n.1
(N.M. Ct. App. 1986).
Similarly, quoting Rowan as well as Cohen, courts in
Kentucky and Nebraska have upheld harassment statutes similar to section 42.07(a)(7) that prohibited telephonic and written communications made with the “intent to harass, annoy or alarm,” holding that “[t]his form
of communication intrudes upon a justifiable privacy interest of the recipient and therefore, this right to communicate must be considered in light of a person’s right
‘to be left alone.’” Yates v. Commonwealth, 753 S.W.2d
874, 875 (Ky. Ct. App. 1988); see also State v. Kipf, 450
N.W.2d 397, 407-09 (Neb. 1990).
Moore never cites Rowan, let alone explains why
these courts were wrong to conclude that the same rule
that applies to physical mailboxes should not apply to
electronic mailboxes. For good reason: from the sender’s
perspective, there is no constitutionally significant difference in the ability to communicate one’s message.
From the recipient’s perspective, there are far greater
privacy concerns about access to one’s phone or watch,
which serves as a portable computer to be taken
23
anywhere and everywhere. As the State’s interest in protecting that right is at least as great, the CCA was correct to extend Rowan to uphold Texas’s content-neutral
anti-harassment rules first in the telephone context (in
Scott) and then the email context (in Barton and Saunders).
3. Section 42.07(a)(7)
scrutiny.
would
pass
strict
Even if the Court concludes that the law is contentbased, and thus subject to strict scrutiny, David’s Law
would still pass muster because it is narrowly tailored to
serve a compelling government interest. Reed, , 576 U.S.
at 163. In analyzing how Rowan should apply to modern,
intrusive means of communication, courts have recognized that the government has not just a legitimate but a
“compelling interest in the protection of innocent individuals from fear, abuse or annoyance at the hands of
persons who employ the telephone, not to communicate,
but for other unjustifiable motives.” Lampley, 573 F.2d
at 787; cf. Cohen, 403 U.S. at 21. As discussed above, David’s Law—which expanded section 42.07(a)(7) to what it
includes today—the nation saw a growing epidemic of
childhood suicide caused (at least in part) by electronic
harassment. See supra 3-4. It is hard to imagine a more
compelling state interest. And the law’s specific-intent
requirement ensures that it serves that interest without
sweeping into its ambit innocent, or otherwise protected
speech. Supra 3-5.
24
III. Petitioner’s Contrary Arguments Do Not Merit
Review at the Present Time.
A. Any split of authority does not merit this
Court’s attention.
Seeking to fashion a reason this Court should grant
review, Moore insists (at 23, 35) that the CCA’s decision
is either an outlier or representative of mass confusion
regarding the constitutionality of electronic harassment
laws. It is neither. Most States have some form of criminal harassment statute. See supra n. 2. And, for decades,
numerous state and federal courts have upheld harassment laws like Texas’s—and typically for the same reasons explained by the CCA. See Gattis, 730 P.2d at 501 &
n.1. The few contrary cases to which Moore cites either
(1) reach a different conclusion based on the unique features of the law at issue, or (2) ignore the conduct/speech
analysis entirely. Consequently, there is no split on “the
same important matter,” and no need for this Court’s review. Sup. Ct. R. 10(a).
1. Most courts have held that statutes
criminalizing harassing communications
target conduct, not speech.
Contrary to petitioner’s repeated suggestion (e.g., at
26, 32), multiple state courts have rejected First Amendment challenges to harassment laws, typically for the
same reasons outlined by the CCA. Examining just a few
examples—some of which were already referenced
above—demonstrates both why the CCA’s ruling was
correct and why any split of authority the petitioner
manages to find is unworthy of this Court’s attention.
a. Start with state high courts. In Thorne, the West
Virginia Supreme Court of Appeals examined a ban on
repeated telephone calls made “with intent to harass or
25
abuse another.” 333 S.E.2d at 819 n.4. Quoting (among
other things) Cox v. Louisiana, 379 U.S. 559, 563 (1965),
the court concluded that “[p]rohibiting harassment is not
prohibiting speech, because harassment is not protected
speech.” Thorne, 333 S.E.2d at 819. The court in Thorne
reasoned that it had “never been deemed an abridgment
of freedom of speech or press to make a course of conduct
illegal merely because the conduct was in part initiated,
evidenced, or carried out by means of language, either
spoken, written, or printed.” Id. And, like the CCA, the
West Virginia court noted that the challenged law’s specific-intent requirement narrows the applicability of such
statutes to acts intended to cause emotional distress, and
“[p]hone calls made with the intent to communicate are
not prohibited.” Id.
In Commonwealth v. Johnson, the Supreme Judicial
Court of Massachusetts came to a similar conclusion. 21
N.E.3d 937, 946 (Mass. 2014). That court examined a
statute that penalized “willfully and maliciously” engaging in a “knowing pattern of conduct or series of acts”
that “seriously alarms” a person and “would cause a reasonable person to suffer substantial emotional distress.”
21 N.E.3d 937, 944-45 (Mass. 2014); see Mass. Gen. Laws
ch. 265, § 43A(a). The unlawful conduct was defined to include the use of a telecommunication device or electronic
communication device. Id. Citing Giboney, 336 U.S. at
498, Johnson explained that this Court has said “that
speech or writing used as an integral part of conduct in
violation of a valid criminal statute is not protected by
the First Amendment.” 21 N.E.3d at 946. Harassment
laws were valid, the court explained, because they limit
conduct not communication. Id. at 946-47. And, again, the
court noted the significance of the “scienter requirement,” which undermined any argument that an
26
individual could be liable “if his actions were accidental.”
Johnson, Id. at 945. The court concluded that “[a]s the
statute requires both malicious intent on behalf of the
perpetrator and substantial harm to the victim, ‘it is difficult to imagine what constitutionally-protected speech
would fall under these statutory prohibitions.’” Id.
Other high courts agree. The Florida Supreme Court
has upheld Florida’s ban on telephone calls made with
the intent to “annoy, abuse, threaten or harass” against
an overbreadth challenge, holding that it was “not directed at the communication of opinions or ideas, but at
conduct.” State v. Elder, 382 So.2d 687, 690 (Fla. 1980);
see also Gilbreath v. State, 650 So.2d 10, 12 (Fla. 1995).
The Supreme Court of Montana stated that the specificintent requirement “removes the danger of criminalizing
protected speech.” State v. Dugan, 303 P.3d 755, 769
(Mont. 2013). And the Supreme Court of New Hampshire
upheld a law prohibiting “repeated communications at
extremely inconvenient hours or in offensively coarse
language with a purpose to annoy or alarm another,” in
part because of the specific-intent requirement. State v.
Gubitosi, 958 A.2d 962, 967-68 (N.H. 2008). 10 Gubitosi—
like Barton and Sanders—also noted that the requirement of repeated communications limits any potential infringement upon a legitimate effort to communicate. Id.
For other state courts upholding harassment laws (albeit not
always specifically targeted at electronic harassment), see Lehi City
v. Rickabaugh, 487 P.3d 453 (Utah Ct. App. 2021), cert. denied, 496
P.3d 714 (Utah 2021); State v. Moyle, 705 P.2d 740 (Or. 1985) (en
banc); State v. Crelly, 313 N.W.2d 455 (S.D. 1981); People v. Weeks,
591 P.2d 91 (Colo. 1979) (en banc); Constantino v. State, 255 S.E.2d
710 (Ga. 1979); State v. Jaeger, 249 N.W.2d 688 (Iowa 1977); State v.
Thompson, 701 P.2d 694 (Kan. 1985); State v. Meunier, 354 So. 2d
535 (La. 1978).
10
27
b. Intermediate state appellate courts have also concluded that harassment statutes aimed at telephone or
electronic communications—many of which use language
similar to Texas’s law—do not implicate the First
Amendment because they prohibit conduct, not speech.
These courts’ reasoning also often highlights how the
specific-intent requirement answers many of Moore’s
concerns about the hypothetical breadth of Texas’s law.
Pet. 31. For example, an intermediate court in Idaho explained that:
[b]y requiring that the sole intent of the call be to
annoy, terrify, threaten, intimidate, harass or offend, the statute places outside of its ambit calls
which, though they may insult or offend the recipient, carry a legitimate purpose such as conveying
a complaint about a business practice or government policy or attempting to persuade the hearer
to a particular social, religious or political point of
view.
Richards, 896 P.2d at 362.
An appellate court in California likewise concluded
that a specific-intent requirement narrows the law and
excludes those who act under mistake of fact or accident.
Astalis, 172 Cal. Rptr. 3d at 573. And, like both the CCA
and Gubitosi, the California court noted the significance
of the requirement of repetition, stating that “[p]rudence
may justify a hands-off policy for single calls made with
the intent to harass, but as harassing calls are repeated
the state interest in intervening to protect the recipient
becomes more compelling.” Id. 11
For other examples of intermediate state courts upholding
harassment statutes, see State v. Kronenberg, No. 101403, 2015 WL
11
28
c. Finally, several federal circuit courts have also
ruled—in decisions this Court has declined to review—
that harassment statutes regulate conduct, not speech.
The Second Circuit upheld Connecticut’s harassment
statute prohibiting telephone calls made “with intent to
harass, annoy or alarm” and “in a manner likely to cause
annoyance or alarm” on the ground that it “[c]learly . . .
regulates conduct, not mere speech.” Gormley, 632 F.2d
at 941-42. The Fourth Circuit, likewise, upheld the West
Virginia statute discussed above, reasoning that
“[b]ecause the telephone is normally used for communication does not preclude its use in a harassing course of
conduct.” Thorne, 846 F.2d at 243. Others have followed
suit. 12
1255845, at *2-3 (Ohio Ct. App. Mar. 19, 2015); City of Montgomery
v. Zgouvas, 953 So. 2d 434, 443 (Ala. Crim. App. 2006); State v.
Brown, 85 P.3d 109, 113 (Ariz. Ct. App. 2004); State v. Alexander,
888 P.2d 175, 182-83 (Wash. Ct. App. 1995); State v. Richards, 896
P.2d 357, 362 (Idaho Ct. App. 1995); McKillop v. State, 857 P.2d 358,
364 (Alaska Ct. App. 1993); People v. Taravella, 350 N.W.2d 780, 784
(Mich. Ct. App. 1984); Donley v. City of Mountain Brook, 429 So.2d
603, 610 (Ala. Crim. App. 1982); State v. Mollenkopf, 456 N.E.2d
1269, 1270 (Ohio Ct. App. 1982); State v. Camp, 295 S.E.2d 766, 768
(N.C. Ct. App. 1982); State v. Fin. Am. Corp., 440 A.2d 28, 31 (N.J.
Super. Ct. App. Div. 1981); Kinney v. State, 404 N.E.2d 49, 50-51
(Ind. Ct. App. 1980); von Lusch v. State, 387 A.2d 306, 310 (Md. Ct.
Spec. App. 1978); Baker v. State, 494 P.2d 68, 69-70 (Ariz. Ct. App.
1972); State v. Anonymous (1978-4), 389 A.2d 1270, 1273 (Conn. Super. Ct. 1978); People v. Smith, 392 N.Y.S.2d 968, 970 (N.Y. App.
Div. 1977) (per curiam).
United States v. Waggy, 936 F.3d 1014, 1017-20 (9th Cir. 2019)
(collecting cases), cert. denied, 141 S. Ct. 138 (2020); see also United
States v. Sayer, 748 F.3d 425, 435 (1st Cir. 2014); United States v.
Conlan, 786 F.3d 380, 386 (5th Cir. 2015); United States v. Petrovic,
701 F.3d 849, 860 (8th Cir. 2012); Lampley, 573 F.2d at 787.
12
29
2. Moore’s contrary authorities either fail to
conduct the relevant analysis or are
distinguishable.
In contrast to the weight of authority cited above,
Moore has identified only a small handful of state cases
over the past 50 years that even suggest a constitutional
problem with electronic harassment laws. Those cases,
however, do not create an issue requiring the Court’s attention here because they either involve statutes that are
materially distinct from David’s Law or they entirely fail
to address this Court’s distinction between speech and
conduct.
a. To the extent that Moore’s putatively contrary
authority even addresses the conduct-speech distinction
at the heart of this case, they do so regarding statutes
that are materially distinguishable from David’s Law.
The Illinois Supreme Court in People v. Klick, for example, addressed a statute criminalizing a single phone
call made with an intent to annoy. 362 N.E.2d 329, 330
(Ill. 1977). Even under the rule stated above, such a law
would likely be deemed aimed at speech that is merely
unpleasant: it had a minimal intent requirement and no
requirement of repeated calls. It also fails to employ a
reasonable-person standard, such that an individual cannot be found guilty unless his communications would
have caused emotional distress to the average person.
Courts in both Texas and elsewhere have found the presence of such an element relevant to limit any potential
infringement of anti-harassment laws on free speech.
See, e.g, Brown, 85 P.3d at 113; Scott, 322 S.W.3d at 669;
App. 5a.
At least two of the courts upon which Moore relies
have actually upheld laws that resemble David’s Law,
holding unconstitutional only those laws that lack the
30
limiting factors discussed above. Specifically, in In re
Welfare of A.J.B., the Minnesota Supreme Court severed
language that it thought made Minnesota’s mail-harassment statute overbroad and vague. 929 N.W. 2d 840, 863
(Minn. 2019). But the court left in place the rest of the
statute, which largely aligns with Texas’s, and which
“proscribes repeatedly mailing, delivering, or causing
the delivery”, “by any means, including electronically, of
letters, telegrams, or packages,” with “the intent to
abuse.” Id. In State v. Vaughn, 366 S.W.3d 513, 521-22
(Mo. 2012) (en banc), the Missouri Supreme Court held a
harassment statute that had no intent element to cabin
its scope to be overbroad, but the same court has since
upheld an updated version of the law, which more closely
aligns with Texas’s, see State v. Collins, 648 S.W.3d 711,
714 (Mo. 2022) (en banc), as modified on denial of reh’g
(Aug. 30, 2022).
Much of Moore’s remaining authority is even more off
point. State v. Brobst invalidated the relevant law under
the State Constitution, not the U.S. Constitution. 857
A.2d 1253, 1257 (N.H. 2004). And, like A.J.B., all but one
of the federal cases relied on by Moore (at 30) rejected an
overbreadth challenge to the federal government’s analogous law. See United States v. Yung, 37 F.4th 70 (3d Cir.
2022); United States v. Fleury, 20 F.4th 1353, 1362-63
(11th Cir. 2021); United States v. Ackell, 907 F.3d 67, 73
(1st Cir. 2018). The last one did not even involve an overbreadth challenge, it reversed a conviction based on an
as applied challenge. United States v. Sryniawski, 48
F.4th 583, 587-89 (8th Cir. 2022). As discussed above (at
Part I), such a challenge is not before the Court and is
entirely premature.
b. Finally, many of Moore’s supposedly contrary
authorities do not directly confront the speech-conduct
31
distinction that is the basis of the CCA’s ruling. Indeed,
an Alabama appellate court expressly refused to follow
the Colorado Supreme Court in Bolles v. People, 541
P.2d 80, 82-83 (Colo. 1975) (en banc), because it did not
account for this question—or for the Colorado statute’s
specific-intent requirement. Zgouvas, 953 So.2d at 443
n.2. Because the Colorado court did not consider whether
the statute was aimed at conduct—only speech—it unsurprisingly held that a blanket restriction on speech is
not justifiable by privacy interests alone. Bolles, 541 P.2d
at 83-84.
The New York Court of Appeals’ decision in People v.
Golb contained almost no legal analysis whatsoever,
simply relying on prior cases that did not evaluate
whether the law, which prohibited communications made
with the “intent to harass, annoy, threaten or alarm,”
proscribed conduct or speech. 15 N.E.3d 805, 813-14
(N.Y. 2014). The court did not consider whether the law
could be justified as a regulation of conduct or as prohibiting an invasion of privacy. Id.
In short, these cases do not reflect a nationwide split
among state courts or federal circuits. Many of the cases
upheld the relevant law. And to the extent they found a
constitutional problem, the statutes differ from Texas’s
in significant ways, or the cases failed to undertake the
analysis required by this Court’s case law. There is no
irresolvable split that requires the Court’s intervention.
B. This case does not present an issue of
exceptional importance just because the First
Amendment is involved.
Stripped of his strained assertions of a circuit split,
Moore’s professed belief that this case is one of exceptional importance rests entirely on his insistence (at 3235) that failing to disturb this decades old law will have a
32
“wide and real” chilling effect on all electronic communications, because speakers “will choose simply to abstain
from protected speech,” Id. Texas is no stranger to the
dangers of electronic censorship; indeed, it is in active
litigation before this Court to defend a statute designed
to ensure equal access for all Texans to the digital public
square regardless of their viewpoint. See generally Respondent’s Response to Petition for Certiorari,
Netchoice, LLC v. Paxton, No. 22-555 (U.S. Dec. 20,
2022). But it is entirely speculative that the narrow provision challenged here might cause individuals to refrain
from First Amendment protected conduct.
Moreover, David’s Law did not chill Moore himself.
After all, this case did not arise through a request for a
declaratory judgment from a party fearing to engage in
political—or other core—speech due to David’s Law (or
any other provision of Texas’s Penal Code). See, e.g.,
Doran v. Salem Inn, Inc., 422 U.S. 922, 930-31 (1975);
Steffel v. Thompson, 415 U.S. 452, 458-60 (1974). It arose
from a pre-trial writ of habeas corpus by a man charged
with threatening his ex-girlfriend. Supra pp. 7. Moore
will have the opportunity to explain why he is either factually or legally innocent. If he fails to do so, and if the
Texas courts interpret David’s Law in a way that undermines the First Amendment, he can seek relief then.
Those contingencies have not materialized, and there is
no need for the Court to step in now.
33
C O NC LU SIO N
The petition for a writ of certiorari should be dismissed or denied.
Respectfully submitted.
SEAN B. GALLOWAY
Andrews County Attorney
KEN PAXTON
Attorney General of Texas
121 NW Avenue A
Andrews, Texas 79714
sgalloway@co.andrews.tx.us
(432) 524-1405
BRENT WEBSTER
First Assistant Attorney
General
JUDD E. STONE II
Solicitor General
Counsel of Record
LANORA C. PETTIT
Principal Deputy Solicitor
General
JOSEPH N. MAZZARA
Assistant Attorney General
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Judd.Stone@oag.texas.gov
(512) 936-1700
JANUARY 2023
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.