Barton v. Texas

Are online communications protected by the First Amendment? Of course they are. That’s something the Supreme Court of the United States made clear over 25 years ago. And like all other speech, the First Amendment protects online speech even if it’s offensive, annoying, or embarrassing to others. 

Despite this longstanding First Amendment protection, the State of Texas criminalizes a remarkable amount of protected speech; namely, repeated communications “intended to harass, annoy, alarm, abuse, torment, or embarrass another.” When some Texans challenged the law, a slim majority of the Texas Court of Criminal Appeals upheld the law, mistakenly concluding that it “does not implicate the First Amendment’s freedom of speech protections,” based on the notion that the law targets conduct, not speech.

On December 8, 2022, FIRE filed an amicus brief with the Supreme Court urging it to make clear that laws like Texas’s target speech, very much implicate the First Amendment. As FIRE explains, the Texas law is based on the content of online communications, placing it squarely at odds with the First Amendment. FIRE’s brief pinpoints how laws like the Texas one threaten to chill debate on public issues–after all, Americans often use repeated online communications to annoy, embarrass, or offend politicians and other public figures as an effective way to elevate their viewpoints. They shouldn’t face arrest just because they sent a public official more than one email on an important issue.

FIRE is extremely grateful to John Bash, Nicholas Caluda, Seth Todd, and Emily Couture at Quinn Emanuel Urquhart & Sullivan for their pro bono work on FIRE’s amicus brief.

On February 21, 2023, the U.S. Supreme Court denied the petition for certiorari.