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: CYB3RCRIM3

Texas Online Harassment Statute Held Unconstitutional

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In 2005, Nikolai Ivanov Karenev was charged with using email to harass his wife, Elena.

He was, more precisely, charged with one count of harassment by means of an electronic communication. Karenev v. State, ___ S.W.3d ___, 2008 WL 902799 (Tex. App. 2008).

The specific language of the charge was ?`sending harassing and/or threatening e-mail to Elena with the intent to harass, annoy, alarm, abuse, torment, or embarrass [her.]?? Karenev v. State, supra.

According to the appellate court?s opinion, Elena was Nikolai Karenev?s wife, who had filed for divorce in October of 2004. The email messages were sent in Bulgarian, which was apparently the native language of both Nikolai and Elena.

At trial, the translation of the emails relied on by the prosecution was challenged by the defense, but that is not the issue that concerns us. Nikolai was convicted of sending harassing and/or threatening emails to Elena with the intent noted above, i.e., ?to harass, annoy, alarm, abuse, torment or embarrass? her. The quoted language, and the charge, came from a Texas harassment statute: Section 42.07(a)(7) of the Texas Penal Code, which reads as follows:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he: . . . (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.

A jury convicted Nikolai of violating the statute and he appealed, arguing that this portion of the Texas harassment statute was unconstitutional. Karenev v. State, supra. He specifically argued that the statute was unconstitutional because it was void for vagueness. In an earlier decision, another Texas Court of Appeals described the issues such a challenge raises:

It is well-established that criminal laws must be sufficiently clear in at least three respects. First, a person of ordinary intelligence must be given a reasonable opportunity to know what is prohibited. Second, the law must establish determinate guidelines for law enforcement. Finally, where First Amendment freedoms are implicated, the law must be sufficiently definite to avoid chilling protected expression. `When a statute is capable of reaching First Amendment freedoms, the doctrine of vagueness ?demands a greater degree of specificity than in other contexts.? Greater specificity is required to preserve adequately the right of free expression because `[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.? Moreover, when a vagueness challenge involves First Amendment considerations, a criminal law may be held facially invalid even though it may not be unconstitutional as applied to the defendant's conduct.

Long v. State, 931 S.W.2d 286 (Texas Court of Criminal Appeals 1996).

In ruling on Nikolai?s challenge, the Karenev court cited a federal decision issued by the Fifth Circuit Court of Appeals: Kramer v. Price, 712 F.2d 174 (5th Cir. 1983). In the Kramer case, the court held that the ?words `annoy? and `alarm? were inherently vague?, an issue many have raised in regard to statutes like this. I have often used harassment statutes that are predicated on ?annoying? someone in my classes, asking the students to tell me when someone crosses the line from simply being annoying (and we all know there are a lot of annoying people out there) to magically becoming criminally annoying so that they can be prosecuted for their conduct. We usually wind up agreeing that ?annoy? is not an appropriate term upon which to predicate criminal liability.

I would also go along with the Kramer court ?s holding that ?alarm? suffers from pretty much the same problem, unless the statute includes terms to make it clear what ?alarm? means and how it rises to the level at which criminal liability is appropriate. A stalking statute might, for example, include language describing a course of action ? like repeatedly following someone, showing up at their house at odd hours, repeatedly telephoning them, etc. ? and couple that with the term ?alarm.? There, "alarm" would probably not be void for vagueness because the context in which it is used would put a reasonable person on notice as to what they should avoid doing if they don?t want to be charged with stalking.

The Karenev court said pretty much the same thing about the statute under which Nikolai was charged:

If (a)(7)(A) is viewed in isolation, it appears to suffer the same flaws denounced by Kramer. The words `annoy? and `alarm? . . . are now joined by . . . `harass,? `abuse,? `torment,? and `embarrass? But, all these terms are joined with a disjunctive ?or,? and thus do nothing to limit the vagueness originally generated by `annoy? and `alarm.? Moreover, the additional terms are themselves susceptible to uncertainties of meaning.

Karenev v. State, supra. In other words, you could be charged with and convicted for engaging in conduct that alarmed OR annoyed OR harassed OR abused OR torments OR embarrassed someone. That means, as I?ve told my students when we?ve discussed statutes like this, that a prosecutor could charge someone with violating the statute for simply ?annoying? someone else, and that won?t work.

In 1971, the U.S. Supreme Court held that a Cincinnati ordinance that made it a crime for ?three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by? was void for vagueness. Coates v. Cincinnati, 402 U.S. 611 (1971). The Supreme Court held that it was void for vagueness because it predicated criminal liability on an ?unascertainable standard?:

Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.

Coates v. Cincinnati, supra.

The Texas court?s holding is interesting because a federal statute ? 47 U.S. Code section 223(a)(1)(C) ? makes it a crime to use a telecommunications device (email, for example) to ?annoy, abuse, threaten or harass any person . . . who receives the communications?. The federal statute does add ?threaten? to the mix, but it also uses ?or? as the connector, so it may well suffer from the same defect as the statute the Texas court held unconstitutional.

Full post as published by CYB3RCRIM3 on May 06, 2008 (boomark / email).