Texas Harrassment Law Struck Down

It doesn't happen very often in Texas, but the 2nd Court of Appeals in Fort Worth struck down Texas Penal Code Section 42.07 governing Harassment by electronic communication in deciding Karenev v. State. The defendant in that case had been convicted for sending several emails to his soon-to-be-ex-wife which the jury felt were in violation of Section 42.07(a)(7). 42.07 reads:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he: ...
(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

The Fort Worth Court held that the statute was impermissible vague and offended the First Amendment, striking it down. This is because, as the Court of Criminal Appeals has told us, "vague laws offend the Federal Constitution by allowing arbitrary and discriminatory enforcement, by failing to provide fair warning, and by inhibiting the exercise of First Amendment freedoms." In other words, it's hard for a person to know what kind of conduct that a vague statute would prohibit (and ti gives law enforcement an unclear idea of what behavior they need to curtail), and therefore such a statute can not be enforced.

Much like a prior stalking law stuck down in 2006, the statute used terms from which it was difficult to discern what constituted prohibited conduct. The law did a poor job of defining what exactly "annoy, alarm, abuse, torment, embarrass, or offend" meant and who decided whether or not such conduct. Even if the statute more clearly defined the context of those terms and applied a reasonable person standard, 42.07 "employs, in the disjunctive, a series of vague terms that are themselves susceptible to uncertainties of meaning."

It's this kind of sloppy drafting that leads to laws being overturned. I would hope that someone in the legislature, especially given that many of them hold law degrees, could have seen this one coming. Instead, the legislature went ahead and passed a law that used almost the exact same language as the old Stalking law!!!! Let's stop whining so much about "activist judges" and worry a little bit more about "lazy legislators", OK?

(As a side note, this kind of stereotyping that hurts us all; not everyone from Bulgaria is an email harasser or a Quidditch-playing wizard-in-training.)