IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. PD-0075-24
KEVIN J. OWENS, Appellant
v.
THE STATE OF TEXAS
ON DISCRETIONARY REVIEW FROM THE SEVENTH COURT OF APPEALS BEXAR COUNTY
KEEL, J., delivered the opinion of the Court in which RICHARDSON, NEWELL, WALKER, and MCCLURE, JJ., joined. PARKER, J., filed a concurring and dissenting opinion in which SCHENCK, P.J., joined. YEARY, J., filed a dissenting opinion. FINLEY, J., dissented.
OPINION
Appellant makes an as-applied challenge to the electronic communications
harassment statute. He argues that he was prosecuted for the content of the messages he
sent, and his messages did not fall into a historically unprotected category of speech.
The State counters that he was not prosecuted for the content of his messages, and if he Owens—Page 2
was, it has a compelling interest in protecting people from abuse. We agree with
Appellant that he was prosecuted and punished for the content of his speech in violation
of the First Amendment. We reverse the judgments below and remand the case to the
trial court for dismissal of the charging instrument.
I. As-Applied Challenge
An as-applied challenge asserts that a statute has been unconstitutionally applied
to an individual. Bynum v. State, 767 S.W.2d 769, 774 (Tex. Crim. App. 1989). A
statute’s facial validity does not foreclose such a challenge. See Ex parte Ingram, 533
S.W.3d 887, 900 (Tex. Crim. App. 2017). Even a rule that does not address speech may
be used in a way that violates the First Amendment, and such uses can be remedied via an
as-applied challenge. Virginia v. Hicks, 539 U.S. 113, 124 (2003). The merits of such a
challenge depend on the evidence. State ex rel. Lykos v. Fine, 330 S.W.3d 904, 910
(Tex. Crim. App. 2011). The challenger must show that the statute was
unconstitutionally applied to him. Schlittler v. State, 488 S.W.3d 306, 313 (Tex. Crim.
App. 2016).
The First Amendment generally prohibits the government from prohibiting speech
or expressive conduct. R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992). It forbids
government retaliation against individuals for speaking. Hartman v. Moore, 547 U.S.
250, 256 (2006). The freedom to speak without risking arrest is “one of the principal
characteristics by which we distinguish a free nation.” Houston v. Hill, 482 U.S. 451,
463 (1987). The government cannot restrict expression because of its message, ideas, Owens—Page 3
subject matter or content. Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 790-91 (2011)
(quoting Ashcroft v. ACLU, 535 U.S. 564 (2002)). Content-based regulations are
generally invalid but are permissible for a few, limited, traditional categories of speech.
R.A.V., 505 U.S. at 382-83. Those categories include obscenity, defamation, fraud,
incitement, and speech integral to criminal conduct. United States v. Stevens, 559 U.S.
460, 468 (2010). Although additional categories of historically unprotected speech may
yet be identified, there is no “freewheeling authority to declare new categories of speech
outside the scope of the First Amendment.” Id. at 472.
II. Content-Based Laws
Content-based laws target speech based on its communicative content. Reed v.
Town of Gilbert, 576 U.S. 155, 163 (2015). Generally, laws that distinguish favored
speech from disfavored speech based on the ideas or views expressed are content based.
Turner Broad. Sys. v. FCC, 512 U.S. 622, 643 (1994) (Turner I). Even a facially neutral
statute may be content based if its manifest purpose is to regulate speech based on its
message. Id. at 645. If it is necessary to look at the content of the speech to decide if
the speaker violated the law, the regulation is content based. Ex parte Nuncio, 662
S.W.3d 903, 917 (Tex. Crim. App. 2022) (citing Ex parte Thompson, 442 S.W.3d 325,
345 (Tex. Crim. App. 2014), and Ex parte Lo, 424 S.W.3d 10, 15 n.12 (Tex. Crim. App.
2013)).
A content-neutral restriction on the time, place, and manner of speech in a public
forum is acceptable. McCullen v. Coakley, 573 U.S. 464, 477 (2014). But it would be Owens—Page 4
content based if authorities had to examine the content of the message to determine if a
violation occurred. Id. at 479. A law concerned with undesirable effects that arise from
“the direct impact of speech on its audience” or “[l]isteners’ reactions to speech” would
not be content neutral. Id. at 481 (citing Boos v. Barry, 485 U.S. 312, 321 (1988))
(stating that a clause regulating speech because of the potential emotive impact on its
listeners must be considered content-based). A law restricting speech because it offends
or discomfits the audience is not content neutral. Id. Put another way, “Listeners’
reaction to speech is not a content-neutral basis for regulation.” Forsyth County v.
Nationalist Movement, 505 U.S. 123, 134 (1992). If a person can avoid or mitigate the
effects of a regulation by altering his speech, the regulation is content based. See TikTok
Inc. v. Garland, 145 S.Ct. 57, 67 (2025) (“the fact that petitioners ‘cannot avoid or
mitigate’ the effects of the Act by altering their speech” confirms that the challenged
provisions do not impose a restriction or penalty based on content) (quoting Turner I, 512
U.S. at 644).
Offensiveness does not deprive communications of constitutional protection. Hill
v. Colorado, 530 U.S. 703, 715 (2000). “If there is a bedrock principle underlying the
First Amendment, it is that the government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or disagreeable.” Texas v.
Johnson, 491 U.S. 397, 414 (1989). The First Amendment’s protections belong even to
those whose motives others may find misinformed or offensive. 303 Creative LLC v.
Elenis, 600 U.S. 570, 595 (2023). It protects the right to criticize and to express Owens—Page 5
irritation or viewpoints that may upset others. Mahanoy Area Sch. Dist. v. B.L., 594
U.S. 180, 192-93 (2021). And it does so “regardless of whether the government
considers his speech sensible and well intentioned or deeply ‘misguided[]’ . . . and likely
to cause ‘anguish’ or incalculable grief[.]” 303 Creative, 600 U.S. at 586 (quoting
Hurley, 515 U.S. at 574, and Snyder v. Phelps, 562 U.S. 443, 456 (2011)). “Suffice it to
say that if protecting people from unwelcome communications . . . is a compelling state
interest, the First Amendment is a dead letter.” Hill, 530 U.S. at 748-49 (Scalia, J.,
dissenting).
Prosecution based on the content of a message is permitted only in very limited
circumstances. If a statute is content based, it must meet strict scrutiny; the statute is
presumptively unconstitutional and may be justified only if the government proves that it
is narrowly tailored to serve compelling state interests. TikTok, 145 S.Ct. at 67 (quoting
Reed, 576 U.S. at 163). Content-neutral statutes are subject to a less rigorous analysis
because they do not pose the same inherent risks to free expression. Turner Broad.
Systems, Inc. v. FCC, 520 U.S. 180, 213 (1997) (Turner II)). If a statute is content
neutral, then intermediate scrutiny applies, and the statute is upheld if it advances
important governmental interests unrelated to the suppression of free speech and does not
burden substantially more speech than necessary to further those interests. TikTok, 145
S.Ct. at 67 (quoting Turner II, 520 U.S. at 189).
A breach-of-the-peace prosecution violated the First Amendment because it was
based on the content of the defendant’s message as expressed by his jacket—“F--- the Owens—Page 6
draft.” Cohen v. California, 403 U.S. 15, 18 (1971) (“The only ‘conduct’ which the
State sought to punish is the fact of communication. Thus, we deal here with a
conviction resting solely upon ‘speech,’ . . .”). The State proffered no compelling reason
for making the display of the offensive word a criminal offense. Id. at 26. See also
Johnson v. State, 755 S.W.2d 92, 95, 97 (Tex. Crim. App. 1988) (holding statute
unconstitutional as applied because act of flag burning was clearly “speech”
contemplated by the First Amendment), aff’d, Johnson, 491 U.S. at 420. But a
prosecution for destroying a draft card did not violate the First Amendment. United
States v. O’Brien, 391 U.S. 367, 376 (1968). Even if O’Brien spoke symbolically by
burning his draft card, doing so was not necessarily constitutionally protected. Id.
“[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct,
a sufficiently important governmental interest in regulating the nonspeech element can
justify incidental limitations on First Amendment freedoms.” Id. The statute
criminalizing destruction of a draft card survived intermediate scrutiny because, among
other things, such destruction disrupted the government’s constitutional power to raise an
army. Id. at 377-380.
If a content-neutral statute is applied in a manner that regulates speech based on its
content, it must meet strict scrutiny to survive a First Amendment challenge. In Holder
v. Humanitarian Law Project, 561 U.S. 1, 25 (2010), the Supreme Court considered an
as-applied challenge to a statute forbidding material support to designated terrorist
organizations. The statute generally functioned as a regulation of conduct, but as applied Owens—Page 7
to the plaintiffs, it regulated their speech based on its content; they were prohibited from
speech that “imparts a ‘specific skill’ or communicates advice derived from ‘specialized
knowledge’ . . . .” Id. at 27-28. Because it regulated the content of the speech, a more
demanding standard of scrutiny was applied. Id. at 28. Still, it passed constitutional
muster because of the government’s interest in preventing terrorism. Id. at 36-37.
The government may prohibit the intrusion into the home of unwelcome views and
ideas that cannot be banned from public dialog. Cohen, 403 U.S. at 21 (citing Rowan v.
Post Off. Dept., 397 U.S. 728, 738 (1970)) (“That we are often ‘captives’ outside the
sanctuary of the home and subject to objectionable speech and other sound does not mean
we must be captives everywhere.”). The government’s ability to regulate speech
depends on a showing that the speech invades substantial privacy interests in an
essentially intolerable manner. Id. Selective restriction of offensive speech has been
upheld when there was a captive audience or an invasion of unwanted ideas into the
home. Erznoznik v. Jacksonville, 422 U.S. 205, 209 (1975). “The right to avoid
unwelcome speech has special force in the privacy of the home[.]” Hill, 530 U.S. at 717.
We “have repeatedly recognized the interests of unwilling listeners in situations where
‘the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid
exposure.’” Id. at 718 (citations omitted). The right of a person to be left alone must be
weighed against the right of others to communicate. Rowan, 397 U.S. at 736. Pitting
the First Amendment rights of speakers against the privacy rights of those who may be
unwilling listeners demands delicate balancing. Hill, 530 U.S. at 718 (citing Erznoznik, Owens—Page 8
422 U.S. at 208). “Nothing in the constitution compels us to listen to or view any
unwanted communication” in the privacy of our own homes; we are permitted to bar
solicitors, block senders of mail, or turn off a radio or television to prevent offensive
communications from entering the home. Rowan, 397 U.S. at 737.
III. The Harassment Statute
Texas Penal Code section 42.07(a)(7) has two parts; intent and repeated
communications sent in a certain manner. It reads as follows:
(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person: (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another;
Tex. Penal Code § 42.07(a)(7).
We have upheld its facial constitutionality on grounds that it regulates conduct and
not speech. Ex parte Barton, 662 S.W.3d 876, 884 (Tex. Crim. App. 2022), and Ex
parte Sanders, 663 S.W.3d 197, 216 (Tex. Crim. App. 2022), held that the statute
prohibits non-speech conduct. Its gravamen “is the sending of repeated electronic
communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment,
embarrass, or offend another[.]” Sanders, 663 S.W.3d at 215. No speech is required to
commit the crime. Id. “The statute is equally violated by the repeated sending of
communications containing expressive speech as it is by the repeated sending of
communications containing no speech at all.” Id. at 215-16. It could be violated by
repeatedly sending messages consisting of a single letter or indecipherable machine Owens—Page 9
language. Id. at 216. The statute “does not regulate expressive conduct. Instead, it
focuses upon conduct that is not inherently expressive. If there was an intent to be
expressive, the actor would have to provide separate speech accompanying and
explaining the conduct.” Id. at 216.
Because section 42.07(a)(7) regulates non-speech conduct, Barton applied a
rational-basis test to decide whether the statute served a legitimate governmental interest.
Barton, 662 S.W.3d at 884. The statute’s interest is to punish and deter those who
invade the substantial privacy interests of another in an essentially intolerable manner.
Id. at 885. We concluded that the statute was facially constitutional. Id.; Sanders, 663
S.W.3d at 216.
The question before us now is narrower: was the statute unconstitutional as it was
applied to Appellant?
IV. Background
Appellant was convicted of harassment for sending about three dozen electronic
messages to his former therapist during a 15-week period; most were email, some were
text, and one was on Facebook. All the messages were sent to her professional, not
personal, accounts. Some messages were outside the date range alleged in the charging
instrument, and some had content only in the subject line, but they were all admitted.
Appellant objected to their admission as constitutionally protected speech and sought a
defensive instruction based on the First Amendment, but the trial court overruled him on Owens—Page 10
both points. 1
In 2016, Dr. Lindsay Bira was a newly licensed psychologist, and Appellant
became one of her clients, meeting her weekly for therapy. He was soon dissatisfied
with the sessions, and Bira was uncomfortable with him. Bira tried to refer him to
another psychologist, but Appellant refused the referral, and after eleven sessions, he
stopped seeing Bira, cancelled his remaining sessions, and emailed Bira telling her to
never contact him again. She had no contact with him until about two years later.
On May 13, 2018, Appellant sent Bira an email that said “some very concerning,
upsetting things.” It said:
My life is just as hopeless as ever Maybe if I had the genes that would allow me to consider a modeling career then my life would be better, but I didn’t. You exploited, abused, and then abandoned me. I will never give you any more money, but if you wanted to talk to me then that would be possible. I’m sure you have better things to do though.
Bira testified, “This was sickening. It was highly concerning, especially what I already
knew about him. And I was scared.” She did not reply to the email but forwarded it to
the San Antonio Police Department (SAPD). They told her not to block Appellant’s
1 His requested instruction read as follows:
It is a defense to the crime of harassment if a person’s speech falls into one of the recognized categories of historically protected speech. As a general matter, the First Amendment means the government has no power to restrict expression, because of the message, its ideas, the subject matter, or its content and as a result, the United States Constitution demands that content-based restrictions on speech be presumed invalid and that the government bear the burden of showing their constitutionality. Therefore, if you find that the speech of Kevin Owens falls into a recognized category of historically protected speech, you must find Kevin Owens not guilty. Owens—Page 11
email address so officers could document the messages and see if they escalated.
In Appellant’s second email, sent June 14, 2018, he rambled on about various
aspects of Bira’s personal and professional life that he found on the internet and social
media. He commented about her family, childhood, friends, boyfriends, and career. He
researched a traumatic event she experienced in college. He indicated that he knew her
personal phone number and home address. He mentioned photos of her that he found on
social media; one from her “modeling days in a see-through top,” and others related to
her dating relationships. He referred to her as “eye candy” and said he would not be
surprised if she were a prostitute. Bira said the email was “horrific and concerning.”
She felt terrified that someone would make accusations about her, would want her to
suffer, and would want her to know that he knew personal information about her and her
friends and family. She did not respond to the email. Later that day, Appellant sent
another email that said, “You have nothing to say? I’m surprised, I thought you were a
powerful woman.” Bira testified that even though her personal Facebook and Instagram
accounts were private, police advised her to block anyone with Appellant’s name on
social media.
In the next email, sent July 1, 2018, Appellant purported to revoke his agreement
with Bira’s policies related to her practice, privacy, and consent for psychological
services. Bira testified that these were standard legal intake forms that Appellant had
signed when he began therapy, and there was nothing to revoke since treatment had
already ended. Owens—Page 12
An email sent July 3, 2018, included a comment about one of her previous
relationships along with a photo of Bira that had been posted on her boyfriend’s
Instagram page. She did not know how Appellant found out who she was dating, and
she found it “extremely concerning and terrifying.” Thirty minutes later, Appellant sent
another email calling Bira “a shitty therapist and an even worse psychologist” and said
she would “always be a terrible person.” He indicated that he was monitoring her social
media and her client website and surmised that she was more active on social media
when she could not fill her client schedule. Bira testified that her professional social
media was public, but she became uncomfortable, uneasy, and anxious about posting
anything to social media knowing that Appellant was monitoring her posts. Appellant
sent two more emails that day saying Bira had abused him, raped him, and exploited him.
Bira submitted these to SAPD as escalated contact and harassment and was again advised
not to respond.
On July 4, 2018, Appellant sent an email asking Bira for a refund of the money he
paid for the therapy sessions, saying that she did not help him, she tricked him, she
cheated him, and she owed him $1,785.
Five days later, Appellant sent an email with the subject line “You are
encouraging me to kill myself.” Bira testified that she knew Appellant was trying to get
her to respond, and she was not concerned on a clinical level, but she had to respond to
cover her bases and to make sure she was doing the right thing. She replied to
Appellant’s email from an office manager administrative account that was used for Owens—Page 13
dealing with patients who might pose a risk. The “office manager” response to
Appellant’s email advised him to call 911, go to the emergency room, or call a suicide
hotline; it said his contact had been reported to SAPD and future contact from him would
be forwarded to police and legal personnel. Appellant replied that he was not
considering suicide and asked for the office manager’s name. Appellant sent Bira
another email saying that she abused him, she wanted him to be a slave, and he was
“raped every day.” Another message was sent to the “office manager” email address
again asking for her full legal name.
Appellant began text messaging Bira on July 10, 2018, asking for his money back
and saying she was abusive, trying to get revenge, was a terrible person, and had lied to
him and cheated him.
On July 12, 2018, Appellant emailed Bira asking when she was going to return his
money. He said, “You lied to me and you didn’t do your job. I want my money back.
You owe me. You didn’t earn it and you never deserved it.” He also used an alias to
send a Facebook message calling Bira “a terrible therapist and a shitty person” and
saying, “I want the money you owe me, and then we will be done.”
Appellant sent eight emails from July 17th to 18th in which he requested a refund,
referred to himself as a victim, and claimed Bira had abused and raped him. He
referenced talking about Bira to one of her colleagues and quoted information that had
been posted on her professional Instagram page. He included a quote about life being
stolen by fear and said, “You are the one who told me to not be afraid. How’s that Owens—Page 14
working out for you?” He also referenced one of her favorite quotes that she often used
in public speaking, “People are disturbed not by a thing, but by their perception of a
thing.” Appellant said, “You’re just making yourself upset, so I’m not doing anything
wrong.”
From July 25, 2018, through August 25, 2018, Appellant sent seven emails
accusing Bira of being a con artist and of abusing him, tricking him, exploiting him,
sexually assaulting him, and touching him “in a sexual and inappropriate way during
therapy.” He said she violated confidentiality, and he requested his records and
referrals. He also asked Bira to find a girlfriend for him.
Bira testified that she forwarded all the messages to SAPD and that Appellant was
sent cease and desist letters from both SAPD and her attorney. She testified that the
messages made her feel scared, horrified, abused, harassed, and embarrassed, and she
was concerned for her safety. She said she had difficulty seeing patients during this time
frame because she was worried that Appellant was going to show up at her office and
harm her. She eventually stopped seeing patients in person, switched her practice to
video therapy sessions only, and moved out of state.
Defense counsel asked Bira if she felt harassed because Appellant sent her
messages or because of what the messages said. She replied, “It was repeated forced
contact from Kevin Owens, along with what he chose to say to me . . .The action of him
repeatedly e-mailing me even after two cease and desists, and me saying do not. That
act felt harassing, and also what he chose to say to me felt harassing.” She said that if Owens—Page 15
Appellant had sent her an email initially that said, “hey, I really want to chat with you.
It’s been a while, but I have something that I want to discuss that’s lingering with me”
she would have said, “absolutely, let’s set up a call.” Instead, Appellant “chose an
illegal harassing way to approach” her to discuss his concern, so she did not reply to him.
The defense asked Bira again whether it was the fact of getting the emails that harassed
her or their content that made her feel harassed, and she replied that it was both. Bira
testified that she “felt abused from that very first email. Highly harassed.”
The defense argued that there was no evidence of Appellant’s intent to harass,
annoy, alarm, abuse, torment, or embarrass Bira; he was upset, and he wanted a refund;
he had no control over Bira’s reaction to his messages, and Bira could have blocked or
ignored the emails. The State argued that Appellant’s words showed his intent and that
freedom of speech is not a defense to harassment.
The jury found Appellant guilty of two counts of harassment. At the punishment
hearing, the defense argued that Appellant was being punished for his speech. The trial
judge responded, “Of course it’s punishment for speech . . . If he was saying good
morning, it’s not - - there has to be some content in his speech that is the problem here . .
. if you’re saying good morning in an e-mail, it’s not the same thing as calling someone a
name like a whore in an e-mail. That’s not the same thing.” The judge sentenced
Appellant to 180 days in jail and a $500 fine.
V. Court of Appeals
On Appeal, Appellant argued that he was punished due to the content of his Owens—Page 16
messages because they caused Bira to feel harassed. Owens v. State, No. 07-23-00115-
CR, 2024 Tex. App. LEXIS 110, at *7 (Tex. App.—Amarillo Jan. 5, 2024) (not
designated for publication). The court of appeals disagreed. It said that while words
can be used to commit the offense, the conduct prohibited by the statute is distinct from
recognized categories of expressive conduct. Id. at *7-8 (citing Sanders, 663 S.W.3d at
213). Reasoning that the words used to harass Bira were integral to criminal conduct
and so outside the protections of the First Amendment, the court of appeals concluded
that Appellant failed to show that section 42.07(a)(7) operated unconstitutionally as
applied to his circumstances. Id. at *8.
The court of appeals overruled Appellant’s facial and as-applied challenges to the
constitutionality of section 42.07(a)(7).
VI. Analysis
Sending messages is an act, but the messages themselves are speech, and the
prosecution in this case was based on Appellant’s speech, not his action. It was the
content of the messages, not the manner of their sending, that drove the prosecution.
Bira called the police on receipt of the first message—not after the receipt of repeated
messages. She was disturbed by the content of the first and subsequent messages, not
merely the manner in which they were sent. She admitted that both the “repeated forced
contact” and the content of the communications were harassing. Appellant would not
have been prosecuted if his messages had expressed a different tone or message; he
would have avoided prosecution if he had said “good morning” instead of accusing Bira Owens—Page 17
of raping him. Bira and the judge both said so; if Appellant’s first email had been
worded differently, if he had reached out politely asking to speak with her, she would
have obliged, and he would not have been prosecuted and punished. Instead, she
contacted SAPD because of the content of the first message. She “felt abused from that
very first email. Highly harassed.” As the trial judge pointed out when assessing
Appellant’s punishment, “Of course it’s punishment for speech . . . if you’re saying good
morning in an e-mail, it’s not the same thing as calling someone a name like a whore in
an e-mail.” The manner of the communications was immaterial; it was their content that
drove the prosecution.
We acknowledge Bira’s right to be free from unwelcome ideas invading her
substantial privacy rights in an essentially intolerable manner. Barton upheld the facial
constitutionality of section 42.07(a)(7) because it protects from conduct that causes such
invasions of privacy. But here section 42.07(a)(7) was used to regulate Appellant’s
speech, not his conduct. Appellant’s First Amendment right to communicate must be
delicately balanced with Bira’s privacy rights, and the scale is tipped in Appellant’s favor
in this case for three reasons.
First, there was no invasion into the home. The messages were not sent to Bira’s
home or her personal accounts, they were sent to her professional email and office phone
that she used for communicating with patients and to her professional social media
account that was public. Second, Bira was not a captive audience in this situation; she
was not powerless to avoid the messages. She could have deleted the messages without Owens—Page 18
reading them or blocked Appellant’s email address, phone number, and social media
accounts, but she chose not to. Third, the government’s ability to regulate speech
depends on more than a simple invasion of privacy; it requires an invasion of substantial
privacy rights in an essentially intolerable manner. See Cohen, 403 U.S. at 21. Thirty-
four messages sent in a span of more than three months to publicly accessible,
commercial accounts controlled by a willing listener is no such invasion.
Because Appellant was prosecuted for the content of his messages, the statute’s
application is presumptively unconstitutional and may be justified only if the government
proves its application was narrowly tailored to serve compelling state interests. The
State makes no such showing here. Instead, the State relies on the O’Brien intermediate-
scrutiny standard and says that when a statute covers a combination of speech and non-
speech elements in the same conduct, incidental limitations on speech can be justified by
an important government interest. But Appellant’s case is distinguishable from O’Brien.
In O’Brien, the message did not matter to the prosecution. O’Brien would have been
prosecuted even if his message had been “I love the pretty colors created by burning my
draft card,” but Appellant would not have been prosecuted if his message had been “good
morning.”
Because the State focused on the intermediate-scrutiny standard, it failed to make
a showing that the harassment statute survived strict scrutiny as applied to Appellant in
this case.
VII. Other Arguments Owens—Page 19
The State concedes that the court of appeals went too far in declaring that the
content of the messages was speech integral to criminal conduct but says the court of
appeals still reached the correct result. It argues that if Appellant’s conviction is invalid,
then the statute would be, too, because admitting the content of the messages was
necessary to prove what it contends are two elements of the crime: Appellant’s intent to
cause negative feelings and the reasonable likelihood that his messages would cause such
feelings. The State is mistaken for two reasons. First, we do not hold that the messages
were inadmissible for any purpose, and Appellant concedes that they were admissible to
show intent. But they were admitted without limitation over Appellant’s objection, so
the prosecution was based on their content, not merely the manner of their sending.
Second, the State has misread the statute. A conviction under it does not require a
showing that the messages were reasonably likely to cause negative feelings; it requires a
showing that the manner in which they were sent was reasonably likely to do so. Their
content is irrelevant to their manner of sending.
The State argues that “it is not speech at all when the actor sends repeated
electronic messages with an intent to harass.” But it supports this assertion with an
inapplicable quote from Sanders quoting Scott about the telephone harassment statute,
not this one. 663 S.W.3d at 203 (“[P]ersons whose conduct violates § 42.07(a)(4) will
not have an intent 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.”)
(quoting Scott v. State, 322 S.W.3d 662, 670 (Tex. Crim. App. 2010)) (overruled on other Owens—Page 20
grounds, Wilson v. State, 448 S.W.3d 418, 422-23 (Tex. Crim. App. 2014)). Scott
upheld the telephone harassment statute because making repeated phone calls was
noncommunicative conduct that did not implicate First Amendment free speech
protections. Scott, 322 S.W.3d 670. In contrast, Appellant’s messages intended to
communicate ideas, opinions, and information, and his prosecution was based on their
content.
The State argues that electronic harassment is non-speech conduct even if it
includes the use of words, and it is outside First Amendment protection because it does
not necessarily contain an expressive message; the speech explaining the conduct is
separate. While Sanders held that the statute restricts non-speech conduct, that was not
how it was applied here. In this case the State used the statute to punish Appellant’s
speech based on its content. Appellant was not punished for merely sending messages;
he was punished for the things he said.
Judge Parker’s concurring and dissenting opinion confounds as-applied
challenges with facial ones and seems to say that part of the statute is facially
unconstitutional for allowing conviction when the speech’s content may annoy, alarm,
embarrass, or offend. She mistakes our holding for a sufficiency of the evidence
analysis asking whether the evidence supports a conviction on a constitutional basis.
But our holding answers the question of whether Appellant was prosecuted for the
conduct of sending messages or for the content of the messages.
Judge Parker suggests that we remand for a harm analysis, but when the State has Owens—Page 21
chosen to apply a statute in a manner that violates a defendant’s First Amendment rights,
the proper remedy is dismissal. See, e.g., Johnson, 755 S.W.2d at 97-98 (holding the
flag burning statute unconstitutional as-applied, reversing the judgments of the lower
courts, and remanding to the trial court for dismissal of the information), aff’d, Johnson,
491 U.S. at 420; Flores v. State, 245 S.W.3d 432, 443 (Tex. Crim. App. 2008)
(Cochran, J., concurring) (“If the defendant prevails on his ‘as applied’ constitutional
claim, there will be no new trial. There is only one remedy for either the trial or
appellate court: dismiss the indictment and enter an acquittal because the defendant was
convicted under an unconstitutional application of an otherwise valid penal statute.”).
The State does not get to try again to convict just because the statute could have been
applied in a different, and constitutional, manner.
VIII. Conclusion
The court of appeals erred in categorizing Appellant’s messages as speech integral
to criminal conduct outside the protections of the First Amendment. As applied to
Appellant’s case, the electronic harassment statute was a content-based restriction on his
speech, and the State failed to show that the statute was narrowly tailored to serve a
compelling State interest. The statute’s application to Appellant’s case was
unconstitutional. We reverse the judgment of the court of appeals and remand the case
to the trial court for dismissal of the indictment.
Delivered: June 4, 2025 Owens—Page 22
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