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SCOTUS Gives Texas a Free Pass on Law That Could Chill the Right to Criticize Government, Make It Illegal for a Parent to Repeatedly Text Child

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Published on: March 7, 2023

WASHINGTON, D.C. —The U.S. Supreme Court has given Texas a free pass on its electronic harassment law, which is so vague and overreaching as to make it illegal for a parent to repeatedly text a teen child about neglected chores. Individuals found guilty of violating the Texas statute can be punished by up to 180 days in jail and a $2,000 fine for a first offense.

In refusing to hear the case of Barton and Sanders v. Texas, the Supreme Court declined to confront the government’s ongoing attempts to criminalize protected speech. Rutherford Institute attorneys have repeatedly warned that laws criminalizing speech construed as annoying, embarrassing, or offensive could have a severe chilling effect on non-threatening speech which is protected under the First Amendment, including political speech criticizing government officials and elected representatives.

“The government must not be given the power to criminalize speech it deems distasteful or annoying,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Nowhere in the First Amendment does it permit the government to limit speech in order to avoid causing offense or hurting someone’s feelings, protect government officials from criticism, discourage bullying, penalize hateful ideas, combat prejudice and intolerance, and the like.”

Under Texas’s electronic harassment statute—Texas Penal Code section 42.07(a)(7)—a person is guilty of a criminal offense simply for sending multiple electronic communications with an intent and in a manner likely to “harass, annoy, alarm, abuse, torment, embarrass, or offend another.” A violation of the statute is punishable by up to 180 days in jail and a $2,000 fine for a first offense, and one year in jail and a $4,000 fine for a subsequent offense. The Rutherford Institute had previously challenged this statute when it came to the defense of a man who was charged for emailing a sheriff’s office to criticize their alleged inattention to his requests for help.

In Barton and Sanders v. Texas, Charles Barton and Nathan Sanders were each charged in separate cases with violating Texas’s electronic harassment statute. Barton was charged with nine violations for sending texts and emails to his ex-wife. Both defendants challenged the statute as being unconstitutional. The trial courts denied the challenge, but the intermediate court of appeals for Barton’s case in the Second District of Texas unanimously found the statute to be unconstitutionally vague and overbroad, and noted Barton’s argument that a parent’s repeated text messages to their teenage child to mow the lawn could constitute a violation. However, the Court of Appeals in the Seventh District of Texas came to the opposite conclusion and affirmed the trial court’s decision in Sanders’s case. Subsequently, the Court of Criminal Appeals of Texas held that the statute is constitutional in a 5-4 decision. Noting that “the statute encompasses a vast amount of speech that is protected by the First Amendment,” a dissenting judge wrote: “At the risk of being prosecuted myself for violating § 42.07(a)(7) of the Texas Penal Code, let me say here that the people of Texas should be alarmed by this holding.” The Rutherford Institute’s amicus brief in Barton and Sanders v. Texas urged the Supreme Court to hear the appeal and prohibit the government from criminalizing non-threatening speech.

Case History

December 9, 2022 • Criminalizing Free Speech: Texas Harassment Law Could Make It Illegal for a Parent to Repeatedly Text Teen Child About Neglected Chores

The amicus brief in Barton and Sanders v. Texas

Article posted with permission from John Whitehead

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