FIRE to the Supreme Court: The First Amendment applies in Texas, too

A Texas court ruled that the First Amendment doesn’t apply in Texas. We’re asking the Supreme Court to remind Texas that it hasn’t seceded from the union just yet.

FIRE recently filed an amicus brief with the U.S. Supreme Court in support of the petition for the Court to hear a First Amendment challenge filed by Charles Barton, Nathan Sanders, and their counsel at the Yale Law School Media Freedom and Information Access Clinic. Barton and Sanders were convicted under a Texas law that criminalizes sending repeated electronic communications “in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another” with intent to do the same. As FIRE’s brief explains, this profoundly overbroad law violates the First Amendment and threatens to chill online speech for 30 million Texans, particularly over matters of public concern.

As FIRE’s work shows, police and prosecutors in Texas and around the country have increasingly used similar laws to criminally charge or harass ordinary citizens for online speech protected by the First Amendment.

FIRE’s brief first dispels the Texas Court of Criminal Appeals’ mistaken notion that the First Amendment doesn’t apply because the law purportedly applies only to conduct, not speech. Quite the contrary — the criminal statute plainly criminalizes online speech:

[The law’s] definition encompasses messages sent or posted via widely used Internet platforms like Gmail, WhatsApp, Twitter, and Facebook. The statute therefore indisputably regulates “the spoken or written word” and thus is subject to the requirements of the First Amendment. 

Because the law criminalizes certain repeated online speech, not conduct, the Texas court should have applied the First Amendment to determine whether the criminal statute passes either intermediate or strict scrutiny. Had it done so, the court likely would have found that the law is so overbroad that it violates the First Amendment. 

Several Texas Court of Criminal Appeals judges dissented for exactly that reason, and would have struck down the law because its “language encompasses a truly enormous amount of speech.” For example, an aggressive prosecutor could use the law to criminally charge an activist group for encouraging its Twitter followers to repeatedly post the same critical message in the comments section of a politician’s post, or to arrest a concerned parent for sending more than one critical message to the official email account of her local school board. 

These examples are not theoretical. 

As FIRE’s work shows, police and prosecutors in Texas and around the country have increasingly used similar laws to criminally charge or harass ordinary citizens for online speech protected by the First Amendment. In Laredo, Texas, for example, citizen journalist Priscilla Villarreal, known for her unfiltered local reporting on Facebook, was arrested under a different section of the Texas Penal Code for asking a police officer to confirm information she had already received from other sources. And in Louisiana, police officers entered a man’s home with their guns drawn, arrested him, and threw him in jail for violating the state anti-terrorism law. His crime? Making a joke on Facebook that compared the COVID-19 pandemic to a zombie apocalypse.

The First Amendment protects speech on the internet, even in Texas. FIRE urges the Supreme Court to grant certiorari in this case, which it will consider for the first time at its February 17, 2023 conference, to protect ordinary Texans from this extraordinary threat to free speech online. 

You can read more about the case here. 

Many thanks to attorneys John F. Bash, Nicholas Caluda, Seth Todd, and Emily Couture at the law firm Quinn Emanuel for their work drafting this brief pro bono on FIRE’s behalf.