New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012
“Texas Penal Code section 42.07(a)(7) is a content-based restriction that restricts a real and substantial amount of speech as protected by the First Amendment; speech which invades privacy interests of the listener has never been held by the United States Supreme Court to be a category of unprotected speech.”
Sanders was charged with harassment by sending repeated electronic communications with the intent to harass, annoy, alarm, etc. He alleged in his pretrial writ that the statute is facially overbroad. The trial court denied the application.
The court of appeals affirmed. It followed Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010), which held that a similar subsection of the statute at issue does not implicate protected speech because it is directed at persons who have no intent to communicate, only to harm, and invade another’s privacy in a manner reasonably likely to inflict emotional distress. Without an impact on protected speech, the overbreadth doctrine is inapplicable.
Sanders argues that Scott must be overruled. He says that Scott improperly created a new category of unprotected speech not recognized by the Supreme Court—“invasion of substantial privacy interests in an essentially intolerable manner.” He also says that Scott was narrowed by Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014), which held that evidence of a facially legitimate reason for a phone call does not negate the intent to harass for sufficiency purposes.