Is a portion of David’s Law unconstitutional?

There is one obscure provision in David’s Law—SB 179—that may draw a challenge under the First Amendment.  The State of Washington has a similar provision, and it’s being challenged in court right now.

David’s Law increases the potential criminal penalties for online harassment.  Section 42.07 of our Penal Code makes it a criminal offense for a person to send “repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass or offend another.” To prove that this statute has been violated, the prosecutor would have to show that such repeated e-communications have occurred, and also that they were done “with intent to harass, annoy, alarm, abuse, torment or embarrass.”

I’m sure that all of us see e-communications every day that are “reasonably likely” to “annoy” or “offend” someone.  So that’s a pretty broad standard, and you can expect someone to argue that it is so overly broad and vague that it improperly infringes on free speech rights.

We can expect someone to raise this argument, but they are unlikely to succeed.  David’s Law made only a slight change to Penal Code 42.07—it enhanced the penalty for violating it via “repeated” e-communications.  The underlying statute has already survived a constitutional challenge.  The case arose when Sean Lebo was convicted of harassing a Bexar County detective.  The court found that Mr. Lebo had sent almost 40 emails to the detective accusing him of corruption, threatening to sue him, calling him names and threatening his family. This conduct continued even after the detective asked that it cease.  Mr. Lebo was convicted of online harassment. On appeal, he challenged the constitutionality of the statute.

It didn’t work. The court concluded that the statute effectively prohibited conduct, not the communication of ideas. Key Quote:

That is to say, in the usual case, persons whose conduct violates [the statute] will not have an intent to engage in the legitimate communication of ideas, opinions, or information: they will have only the intent to inflict emotional distress for its own sake.  Lebo v. State, 474 S.W.3d 402 at 407 (Tex. App.—San Antonio 2015), quoting from Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010).


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