The crime of Harassment in the State of Texas originates from a broadly constructed statute that prohibits various types of electronic communication intended or designed to annoy, harass, alarm, abuse, torment or embarrass the recipient. Among other activities, the statute specifically prohibits communications that are obscene, threaten physical injury or is “repeated” with the specific intent to annoy, etc. (Penal Code §42.07)
Electronic communications covered under the statute include text messages, emails and other messaging applications. The statute does not prohibit face-to-face verbal confrontation; no matter how annoying, though threats could be made that would implicate other penal sections.
Generally speaking, the First Amendment to the United States Constitution will prohibit the State of Texas from unduly constricting a person’s right to say how he feels about another person. The statute cannot restrict or limit the ability of two people to argue, even if it is done predominantly by text message.
The crux of the statute is to prohibit communication that is not designed for mere communication but is instead intended to annoy, harass, alarm, etc. For instance, Harassment can be charged if the person leaves a message that is obscene. The First Amendment does not protect obscenity. Harassment can be charged if someone threatens bodily injury by electronic communication. The First Amendment does not protect “fighting words”.
In my experience, the gray area of the law comes into play when two people have a dispute through electronic communication and only one of them decides to continue the conversation. The sender of “repeated” SMS messages or emails might not be sending these messages with the “intent” to annoy, but if the recipient decides she is annoyed, police may be called out to investigate. (Ex-spouses with children always seen to be the most easily annoyed.)
Two questions have to be answered in investigating and prosecuting these cases: 1) What did the sender intend by his messages?, and 2) What constitutes “repeated”? Naturally, both questions are easily answered if 200 identical messages were sent in one hour, but what about 10 different messages in an hour? What about 50 emails in 24 hours?
I have observed that there are two types of police officers who investigate these gray area cases. The first type tries to diffuse the situation prior to calling the DA. This officer will get hold of the sender of the messages and warn him or her that any future messaging will result in charges. If the sender continues messaging after this warning, intent is imputed and prosecution usually follows.
The second type of police officer merely looks at the messages on the phone, verifies that more than one message was sent and includes in his report that the complainant was “annoyed”. In other words, he does no investigation and sends the case on to the DA for filing. Sadly, these cases often get filed and are either dismissed or wind up in trial.
I have tried several of these cases and one of them only involved four total messages. My client sent these messages to his mother. The prosecution seemed to be enamored with the party’s back-story, whose relationship had clearly soured through the years. However, the back-story is only relevant if the intent of the repeated messaging was to annoy, etc. By any standard, I’m not sure how the prosecution thought that four messages in one 24 hour period could show an intention to annoy, no matter what was said. The jury agreed and acquitted my client.
I think that police and prosecutors are both confused by the element of the offense that requires that the repeated communications be sent “in a manner reasonably likely” to annoy, harass, alarm, abuse, torment or embarrass. They focus on the complainant’s specific annoyance without determining what a reasonable person would objectively consider annoying.
It should also be remembered that a party could send one very annoying and alarming text to another person, replete with nasty words and insults about his mother and still not violate the law of Harassment. The First Amendment still allows us to be angry idiots.