Judge Keller Refuses To Turn A Blind Eye To The First Amendment

A friend, who also happens to wear the hat of a local elected official, was troubled. He asked my thoughts, as he went through some old local laws to determine which had overstayed their welcome. One law, he explained, was clearly unconstitutional, but his colleagues strongly resisted dealing with it. It was an old law. It had been around a long time, and it had proven a useful law. It has never been tested in court.*

“But it’s unconstitutional,” he emphasized. A lot was taken for granted over the years,. Laws that served people well given social norms of the time, were so deeply embedded in our understanding of what was acceptable that subsequent changes in technology, norms and sensitivity toward the chilling of free speech had no impact.

The Texas Court of Criminal Appeals faced such a challenge to its harassment law, Penal Code § 42.07. Everybody knows harassment is wrong and a crime. How could it not be? 

A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another…

When you think about it, most of us do this regularly. Half of twitter is dedicated to annoying people who deserve to be annoyed, and embarrassing those who need to be embarrassed. It may be that jerk who is just so totally wrong about politics, or that guy who uses “female” when he should be using “womxn.” Don’t they need to be taught a lesson?

The CCA tried to thread the needle in its first attempt to salvage its harassment law from challenge in Scott v. State. Seizing upon some excess verbiage the Supreme Court throws into a decision to create the sense of a distinction so that the Court appears less hypocritical, the CCA relied on dicta from Cohen v. California, the “fuck the draft!” case, to salvage its law. It was a banal effort, and Presiding Judge Sharon Keller called the court on it in her dissent.

Our decisions in Long v. State[1] and May v. State,[2] and the Fifth Circuit’s decision in Kramer v. Price,[3] set the backdrop for the claim we now face.[4] These decisions invalidated statutes that contained the terms “annoy” and “alarm” as implicating First Amendment freedoms and being unduly vague.[5] In its opinion today, the Court’s only attempt to distinguish these cases is to say that they involved different versions of the harassment statute than the one that is currently before us.

And then came Scott Ogle, who didn’t annoy some poor woman like Samuel Scott, but two cops. Much like the hidden fiasco behind revenge porn laws, where everyone empathizes with the victim intended to be protected by ignoring the unintended victim, the harm was hardly of the sort tears are shed over.

The specific communication Mr. Ogle is accused of making to Lt. Skrocki is “but have been your typical arrogant, condescending, belligerent self who chooses to look the other way.”

The specific communication Mr. Ogle is accused of making to Officer (or “Deputy”) Paris include calling him a “little bitch” and a “little state weasel” and telling him, “You have a Constitution to uphold, son, you’re pissing on it.”

But the CCA found itself a jam of its own creation when Mark Bennett and Lane Haygood pressed the issue by seeking review. The CCA dodged the bullet of being forced to confront its twisted Scott decision by denying review. Once again, Presiding Judge Sharon Keller refused to cooperate.

Now we have a case in which the electronic-communications harassment statute has been invoked to punish communications made to police officers. If this Court believed that the prosecuting authorities would never use this statute to punish criticism of agents of the government, it ought to now recognize that such a belief was overly optimistic. Given the breadth of the electronic-communications harassment statute, and the potential to use it to suppress criticism of the government,** we should grant review to address whether the statute is facially unconstitutional in violation of the First Amendment. Because the Court does not, I respectfully dissent.

That “thing” that the old, trusted law was never meant to do, would never happen, happened. Wiggle all you want. Cry for the intended victims who are well-served by the law. Seize upon the unfortunate language that seemed harmless enough at the time, and was included only to smooth over some troubling inconsistencies in prior decisions, because fuzzy words are a blunt tool that often lack the precision necessary to explain why one things is worthy of criminalization, while others that fit the elements just as well, are not.

As with revenge porn, the question isn’t whether the wrong to which the crime is focused isn’t a real problem, a serious problem. It is. As is harassment, as we imagine it in our heads the malicious sort that no one doubts is awful. But cops? Elected officials? Darth Cheeto? We can’t annoy, alarm, embarrass them any more than Samuel Scott could annoy Yvette Scott.

I have previously dissented to the refusal to grant discretionary review of a First Amendment facial challenge to the electronic-communications harassment statute. I pointed out that the breadth of the statute, applying to all electronic communications, could accurately be characterized as “breathtaking.” All that is required are two electronic communications that are intended and reasonably likely to annoy, alarm, or harass a particular person. In a prior case, involving a narrower but somewhat similar telephone harassment statute, I warned that, because the statute was not limited to phone calls made to someone’s home or personal phone, the statute could encompass a “call made to a public official at his government office.”

The problem isn’t that § 42.07 isn’t facially unconstitutional. No sound reading of the law could produce any other outcome. The problem is that the CCA shrugged it off in Scott, perhaps in the hope that nobody would rub its nose in its flagrant contradictions and rejection of clear federal precedent. So instead of facing up to its duty, it saved face by denying review rather than trying to spin its conflicting holdings hard enough to overcome its refusal to face up to the certain reality that its good ol’ Texas harassment statute couldn’t pass constitutional muster.

To their credit, Bennett and Haygood weren’t going to let the CCA off the hook for fudging the law and turning a blind eye to an unconstitutional law. To her credit, Judge Keller wasn’t going to let that blind eye go unnoticed.

*Many such laws are infractions or misdemeanors, carrying penalties that make a serious challenge untenable. The cost and effort to fight an unconstitutional law is significant; easier to pay the $50 fine and move on.

**Judge Keller’s note of the law being used to suppress “core” political speech is an unfortunate hat tip to those who can’t distinguish the breadth of free speech to purposes they feel are more worthy than others. The First Amendment doesn’t distinguish between political speech and “your father smelt of elderberries,” but the former is simpler to grasp for its “value,” and so the fallacy is repeated for ease of making a point to the unwary.

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