EX PARTE GROHN v. << (2022)

Petition for discretionary review refused.

In Ex parte Barton and Ex parte Sanders, the Court addressed the constitutionality of the 2001 and 2013 versions, respectively, of the electronic-communications statute.¹ In both cases, the Court decided that the statute at issue does not implicate the First Amendment because the conduct it prohibits is not speech.² Presumably, those cases are the basis for the Court's refusal of review in this case. But the present case involves the 2017 version of the statute, which contains new language regarding the meaning of “electronic communications” that makes the statute more obviously directed at speech.

Under the 2001 and 2013 versions of the statute, “electronic communications” was defined as:

[A] transfer of signs, signals, writing, images, sound, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectric, or photo-optical system. The term includes:

(A) a communication initiated by electronic mail, instant message, network call, or facsimile machine; and

(B) a communication made to a pager.3

In 2017, the legislature added to subsection (A) the italicized language below:

(A) a communication initiated by electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine.4

In Barton and Sanders, I set forth my view that derogatory posts about someone on a social media account or an internet site was criminalized even under the language of the 2001 and 2013 versions of the statute.⁵ In concurring opinions in those cases, Judge Yeary disagreed, believing that the statute at issue was limited to instances in which “harassing communications are directed and targeted specifically at an individual.”⁶ In support of his assessment, he quoted the definition of “electronic communications” found in the versions of the statute at issue in those cases.⁷ But with its additions, the 2017 statute clearly applies beyond communications that are targeted and directed specifically at an individual. Now, it seems indisputable that annoying posts about an individual on social media, a message board, a blog, or the online comment section of a newspaper can be an offense. Nothing in the statutory language of the 2017 provision suggests that the social media account, message board, blog, or other internet site must belong to the person who reasonably finds the communications annoying.

For instance, under the 2017 statute, if a person makes more than one derogatory comment about another person on Facebook, Twitter, or YouTube, that conduct can be prosecuted as a crime. That is true even if the derogatory posts or videos are on the commenter's own account. Similarly, repeated derogatory posts in the online comment section of the local newspaper could give rise to criminal liability. Criticisms of a politician on a blog or message board could also pave the way for a criminal prosecution.

To be clear, Barton and Sanders did not hold that the legislature could validly punish the sort of speech proscribed by the electronic-communications statute; it held that the statute did not proscribe speech at all. I found that idea problematic with respect to the earlier versions of the statute at issue in Barton and Sanders. With respect to the newer version, I find that idea to be simply untenable.

I respectfully dissent.

FOOTNOTES

1.   Ex parte Barton, ––– S.W.3d ––––, ––––, 2022 WL 1021061, *1 & n.1 (Tex. Crim. App. April 6, 2022) (2001 version); Ex parte Sanders, ––– S.W.3d ––––, ––––, 2022 WL 1021055, *1 & n.1 (Tex. Crim. App. April 6, 2022) (2013 version).

2.   See Barton, supra at ––––, 2022 WL 1021061, at *1, and Sanders, supra at ––––, 2022 WL 1021055, at *1.

3.   Tex. Penal Code § 42.07(b)(1) (2001 & 2013).

4.   Tex. Penal Code § 42.07(b)(1)(A) (2017).

5.   Barton, ––– S.W.3d at ––––, 2022 WL 1021061, at *9 (Keller, P.J., dissenting); Sanders, ––– S.W.3d at ––––, 2022 WL 1021055, at *15 (Keller, P.J., dissenting) (adopting reasons articulated in Barton).

6.   Barton, ––– S.W.3d at ––––, 2022 WL 1021061, at *8 (Yeary, J., concurring); Sanders, ––– S.W.3d at ––––, 2022 WL 1021055, at *14 (Yeary, J., concurring).

7.   Barton, supra at –––– n.2, 2022 WL 1021061, at *8 n.2; Sanders, supra at –––– n.2, 2022 WL 1021055, at *14 n.2.