Texas court strikes down parts of telephone-harassment law

Tuesday, July 7, 2009

Parts of Texas’ telephone-harassment law is too vague, a state appeals court ruled recently in the case of a man charged under the law for repeatedly calling his ex-wife.

Prosecutors twice charged Samuel Scott under the state law for harassing his former wife in December 2005 and March 2006. They alleged that he repeatedly called her, once while intoxicated, and left abusive voice messages “in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass and offend” her.

The state law says in part that a person commits harassment “if, with intent to harass, annoy, alarm, abuse, torment or embarrass another, he: … Causes the telephone to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another” or “Sends repeated electronic communications” in similar manner.

For each harassment charge, a trial court sentenced Scott to two days in jail and fined him $50. On appeal, Scott contended that the state harassment law was too vague.

The Court of Appeals of Texas, 4th District, agreed with the defendant in Scott v. State in its June 24, 2009, opinion. The appeals court noted that much annoying and alarming speech could be protected by the First Amendment.

“What is ‘annoying,’ ‘embarrassing,’ or even ‘alarming’ may be protected speech,” the court said. “For example, political calls made repeatedly during election season could fall” under the law.

The prosecution contended that the harassment statute was valid because it only proscribes unlawful conduct, not protected speech. The appeals court disagreed, citing its earlier example of political phone calls.

Addressing the specific allegation of vagueness, the court determined that the law could be applied to protected speech, in that much annoying speech is entitled to First Amendment protection.

The court also noted that the law failed to explain or provide any guidance on the term “repeated communications.” It accepted the defense argument that the law was vague because it “does not indicate how many communications are prohibited or the period of time over which such communications are not to occur.” The court asked: “Does ‘repeated’ mean that if a person sends three annoying emails over a five-year period, the person is guilty of the offense of harassment?”

The remaining parts of the anti-harassment law are unaffected by the ruling. These provisions prohibit such things as obscene communications and using the telephone or electronic communication to threaten someone or to file a false report.

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