1. “Justice Rodriguez’s dissent contains the same criticisms of the challenged statute that were addressed in 1983 by the U.S. Fifth Circuit Court of Appeals in Kramer v. Price. Kramer v. Price struck down the previous version of Penal Code § 42.07. The defects described in Justice Rodriguez’s dissent and in Kramer v. Price have not been resolved.”
2. “The Fourth Court of Appeals’ decision, and the text of the challenged statute depart from accepted social norms and common understandings of the meaning of the word “harassment.’ The Fourth Court’s majority opinion, and the challenged statute, risk the criminalization of conduct that would not generally be considered ‘criminal’ by people of ordinary intelligence. Further, because of this disconnect between common sense and the text of the statute, the challenged statute chills emotional speech, hyperbolic speech, metaphor, sharply critical speech and sexual overtures; TRAP § 66.3 (f).”
3. “Texas Courts’ attempts to construe § 42.07 have led to baffling decisions that show no discernible logic or pattern that can be followed. The resulting authorities constitute a case by case evaluation of whether the subject speech makes reference to an ‘ultimate sex act.’ As a result of this lack of clear guidance, the statute is overly broad and chills too much speech.”
4. “The Court of Appeals should settle this important question because the statute unconstitutionally delegates prosecutorial decision-making and because the potential chilling effect is broad, TRAP § 66.3(b).”
Nuncio was charged with harassment, see Tex. Penal Code § 42.07(a)(1), for communicating with the complainant about her breasts and sexual history and stating that “she could not be a virgin and work for him.” He filed a pretrial application for a writ of habeas corpus, alleging that the statute is unconstitutionally overboard and vague. The text of Tex. Penal Code § 42.07(a)(1) provides that a person commits the offense of harassment if “with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person . . . initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene[.]” “Obscene” is defined as “a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function.” Tex. Penal Code § 42.07(b)(3). The trial court denied relief.
Nuncio appealed. He claimed the statute is overbroad because it infringes on protected speech and is vague because it fails to give adequate notice and enables arbitrary enforcement. The court rejected Nuncio’s overbreadth argument. The law, it held, does not prohibit “a substantial amount of protected speech, but merely prohibits communication of unprotected obscenities intended to harm the person to whom they are directed.” It opined that a violator “is not engaging in a legitimate communication of ideas, opinions, or information, but has only the intent to inflict emotional distress for its own sake.”
Next, the court held that it is not vague. A person of ordinary intelligence would recognize that it prohibits the making of “obscene comments, requests, or suggestions in an effort to emotionally harm the person to whom the comments, requests, or suggestions are made.” Nor is it susceptible to arbitrary enforcement. It only permits enforcement when obscene comments or remarks are directed by the perpetrator to a particular victim with intent to harm.
Dissenting in part, Justice Rodriguez disagreed with the majority’s vagueness holding. She reasoned that “a solicitous social communication between two people in a bar could include obscene comments or requests intended to embarrass or harass the other, or heated arguments between significant others could include obscene comments intended to annoy, torment, or embarrass the other.” She also criticized subsection (a)(1) for failing to specify “who is the victim of the intended harassment by obscenity.” In her view, it “could be extended to a situation in which the defendant makes an obscene comment to one person but his intent is to harass a different person, i.e., ‘another.’”
Nuncio reurges his overbreadth and vagueness claims. Relying on Justice Rodriguez’s dissent, he contends that the statute fails to identify whose sensibilities must be offended. Thus, it suffers the same problems recognized in Kramer v. Price when the predecessor statute was reviewed. 712 F.2d 174 (5th Cir. 1983). Subsection (a) does not clarify who has to find the communication offensive. In particular, there is no “standard or guidance to employ regarding the use of unconventional forms of language such as obscene metaphors or hyperbole or gossip or rumormongering.” There is also a disconnect between the common understanding of “harassment” and the prohibited conduct. Adding to the problem, he alleges, is the statute’s lack of limiting contextual requirements like “(1) repetition (2) pursuit (3) continuation of purpose and/or (4) persistence after notice.” Finally, pointing to subsection (b)(3), he argues that courts, including the Court of Criminal Appeals, have struggled to define (b)(3)’s “ultimate sex act.” As a result, the case-by-case hair-splitting does not constitute “‘fair notice’ for people of ordinary intelligence.”