Law firm warns Texas’ new ‘anti-harassment’ law is vast overreach

This story was originally published by the WND News Center.

Speech is becoming more and more of a battleground across America, despite the First Amendment’s specific protections.

Social media has been, for years, suppressing accurate reporting about the Biden family’s international business schemes. The government has joined in with Big Tech to hide accurate information about COVID and its treatments.

And LGBT ideology is being promoted without any significant mention of its negative impacts.

The result is that some jurisdictions have tried to put into law some sort of parameters for what can and cannot be said.

According to the legal team at the Rutherford Institute, Texas’ attempt to restrict “harassment” has gone far off its mark and actually could do much damage.

Rutherford filed a friend of the court brief in the case Barton and Sanders v. Texas, seeking a review by the U.S. Supreme Court, which sounds the alarm over the state’s attempt to criminalize “what should be protected speech.”

The new statute is so vague and overreaching, Rutherford explained, “as to make it illegal for a parent to repeatedly text a teen child about neglected chores.”

The penalties for a violation are up to 180 days in jail and a $2,000 fine – for a first offense.

Rutherford said it is warning “that laws criminalizing speech construed as annoying, embarrassing, or offensive could have a severe chilling effect on non-threatening speech that is protected under the First Amendment, including political speech which criticizes government officials and elected representatives.”

“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 and author of Battlefield America: The War on the American People. “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 law, an electronic harassment statute, determines that a person is guilty of a crime “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 explained the background of the fight: “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 be a violation.”

But, Rutherford reported, 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. Upon further appeal of each case, the Court of Criminal Appeals of Texas held that the statute is constitutional in a 5-4 decision.

The brief elaborates: “The constitutional right to free speech is an essential aspect of liberty. The petition squarely presents an issue of considerable practical and constitutional importance, and one that has divided courts across the nation: whether statutes criminalizing speech that is merely intended and reasonably likely to annoy, alarm, or embarrass another person, but not threatening violence or an unlawful act, violate the First Amendment. Amicus contends there is no question that such statutes impermissibly abridge First Amendment rights, and the decision below if left uncorrected – as well as decisions from other courts that have upheld similar statutes – will further engender confusion and unnecessarily risk criminal liability for numerous citizens. In turn, speakers will be forced to decide whether to speak and risk prosecution or refrain from engaging in constitutionally protected behavior. Accordingly, this case presents an excellent opportunity for the court to reaffirm the First Amendment protections afforded to speech that is annoying, alarming, or embarrassing. Absent this court’s review, the continued ambiguity over whether and when the government may criminally prosecute people for the content of their speech will result in a serious threat to citizens’ liberty.”

Rutherford points out that the First Amendment specifically prohibits jailing people for the “content” of their speech.

The Supreme Court itself has said, in the past, “An intent-based test would chill core political speech by opening the door to a trial on every ad within the terms of [the law] … An intent-based standard ‘blankets with uncertainty whatever may be said,'” the brief explains.

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