“Phone harassment law not unconstitutional, court says”

Phone harassment law not unconstitutional, court says

Posted: 06 Oct 2010 06:20 PM PDT

AMERICAN-STATESMAN STAFF

The state law punishing telephone harassment with up to six months in jail does not violate free speech rights and should not be struck down, the Court of Criminal Appeals ruled Wednesday.

Ruling 7-1, the state's highest criminal court reversed a lower court that had found that the law was too vaguely worded when it banned repeated phone calls intended to "harass, annoy, alarm, abuse, torment or embarrass."

The law "is directed only at persons who, with the specific intent to inflict emotional distress, repeatedly use the telephone to invade another person's personal privacy and do so in a manner reasonably likely to inflict emotional distress," said the opinion, written by Judge Charles Holcomb.

People typically targeted by the harassment law do not intend "to engage in the legitimate communication of ideas, opinions or information; they will have only the intent to inflict emotional distress for its own sake," Holcomb wrote.

Presiding Judge Sharon Keller dissented, warning that the First Amendment does not allow conduct to be outlawed merely because it is annoying. Yet the Texas harassment law criminalizes phone calls when the intent is to annoy or inflict similar "low-intensity emotional states" such as alarm and embarrassment, she wrote.

Keller would not scrap the entire law, however, noting that the First Amendment does not protect phone calls meant to harass, abuse or torment the listener.

Keller warned that the harassment law does not define what constitutes repeated harassment. "Is conduct 'repeated' if it occurs twice? If the two occurrences are a year apart?" she asked.

"The mischief this statute can create is enormous," Keller wrote. "If First Amendment freedoms are at stake, we cannot allow the ambiguity in a statute to chill protected expression."

The court ruled on the case of Samuel Scott, charged by Bexar County prosecutors with harassing his ex-wife by making repeated telephone calls in December 2005 and again three months later by leaving drunken, abusive late-night voice mail messages.

Scott pleaded no contest to harassment after the trial court denied his motion to quash the charges because, he said, they violated the First Amendment. Scott was sentenced to two days in jail and a $50 fine for the Class B misdemeanor, punishable by up to 180 days in jail and a $2,000 fine.

The 4th Court of Appeals in San Antonio threw out the charges and acquitted Scott in 2009, ruling that the law was so vague it violated Scott's free speech rights.

But the Court of Criminal Appeals reinstated the conviction Wednesday, saying government may limit speech that invades a person's "substantial privacy interests," including repeated phone calls designed to inflict harm.

"This opinion sides with the victims — that's what we're very pleased with," said Cliff Herberg, Bexar County's first assistant district attorney.

Judge Lawrence Meyers did not participate in the decision in Scott v. Texas, PD-1069-09.

clindell@statesman.com; 912-2569

This entry passed through the Full-Text RSS service — if this is your content and you're reading it on someone else's site, please read our FAQ page at fivefilters.org/content-only/faq.php
Five Filters featured article: Beyond Hiroshima - The Non-Reporting of Falluja's Cancer Catastrophe.