Texas Harassment Conviction for Sending 34 Messages Over 15 Weeks to Ex-Therapist Violates First Amendment
In yesterday’s decision by the Texas Court of Criminal Appeals (written by Judge Mary Lou Keel) in Owens v. State, Owens had been found guilty of criminal harassment and sentenced “to 180 days in jail and a $500 fine”; the law outlaws “send[ing] repeated electronic communications in a manner reasonably likely to [and intended to] harass, annoy, alarm, abuse, torment, embarrass, or offend another.” His conduct consisted of “sending about three dozen electronic messages to his former therapist [at her professional accounts] during a 15-week period,” mostly via email but some via text and Facebook.
The court held this unconstitutionally punished Owens for his speech:
Sending messages is an act, but the messages themselves are speech, and the prosecution in this case was based on Appellant’s speech, not his action. It was the content of the messages, not the manner of their sending, that drove the prosecution. Bira called the police on receipt of the first message—not after the receipt of repeated messages. She was disturbed by the content of the first and subsequent messages, not merely the manner in which they were sent. She admitted that both the “repeated forced contact” and the content of the communications were harassing.
Appellant would not have been prosecuted if his messages had expressed a different tone or message; he would have avoided prosecution if he had said “good morning” instead of accusing Bira of raping him. Bira and the judge both said so; if Appellant’s first email had been worded differently, if he had reached out politely asking to speak with her, she would have obliged, and he would not have been prosecuted and punished. Instead, she contacted SAPD because of the content of the first message. She “felt abused from that very first email. Highly harassed.”
As the trial judge pointed out when assessing Appellant’s punishment, “Of course it’s punishment for speech … if you’re saying good morning in an e-mail, it’s not the same thing as calling someone a name like a whore in an e-mail.” The manner of the communications was immaterial; it was their content that drove the prosecution.
We acknowledge Bira’s right to be free from unwelcome ideas invading her substantial privacy rights in an essentially intolerable manner…. But here section 42.07(a)(7) was used to regulate Appellant’s speech, not his conduct. Appellant’s First Amendment right to communicate must be delicately balanced with Bira’s privacy rights, and the scale is tipped in Appellant’s favor in this case for three reasons.
First, there was no invasion into the home. The messages were not sent to Bira’s home or her personal accounts, they were sent to her professional email and office phone that she used for communicating with patients and to her professional social media account that was public.
Second, Bira was not a captive audience in this situation; she was not powerless to avoid the messages. She could have deleted the messages without reading them or blocked Appellant’s email address, phone number, and social media accounts, but she chose not to.
Third, the government’s ability to regulate speech depends on more than a simple invasion of privacy; it requires an invasion of substantial privacy rights in an essentially intolerable manner. Thirty-four messages sent in a span of more than three months to publicly accessible, commercial accounts controlled by a willing listener is no such invasion.
Because Appellant was prosecuted for the content of his messages, the statute’s application is presumptively unconstitutional and may be justified only if the government proves its application was narrowly tailored to serve compelling state interests. The State makes no such showing
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
