A civil and religious rights organization has issued a warning to the public about a new precedent for “harassment,” a precedent under which a parent repeatedly texting a child over undone chores could end up in jail.
The warning comes from the Rutherford Institute and results from the decision by the U.S. Supreme Court not to address a Texas law regarding electronic harassment.
“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. “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.”
The Texas law has been described as “so vague and overreaching as to make it illegal for a parent to repeatedly text a teen child about neglected chores.”
Under the law, an offender can be punished by up to 180 days in jail and a $2,000 fine for a first offense.
The Supreme Court refused to hear arguments in the case Barton and Sanders v. Texas, meaning that it gave a pass to Texas’ plans to “criminalize protected speech.”
Rutherford said its lawyers “have repeatedly warned that laws criminalizing speech construed as annoying, embarrassing, or offensive could have a severe chilling effect on no-threatening speech which is protected under the First Amendment, including political speech criticizing government officials and elected representatives.”
The state’s new law, Penal Code section 42.07(a)(7), provides that “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.’”
Rutherford lawyers said they earlier had challenged the law in defending a man who was charged for emailing a sheriff’s office to criticize its alleged inattention to his requests for help.
The organization reported, “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.”
The institute noted, however, that 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.’”
Rutherford’s lawyer had urged the Supreme Court to review the case.
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