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Eugene Volokh

Facebook "Tagging" = Communication with the Tagged Person, for Purposes of Restraining Order

From Tuesday's decision of the Texas Court of Appeals (Amarillo) in Boes v. State, written by Justice Alex Yarbrough, and joined by Chief Justice Brian Quinn and Justice Larry Doss:

[Following an arrest of Boes for assaulting his then-wife, a court issued an emergency protective order that] prohibited Appellant from the following:

communicating directly with a family member of the family or household or with the person(s) protected under the Order in a threatening or harassing manner; communicating a threat through any person to a member of the family or household or to the person(s) protected under the Order;

communicating in any manner with a person protected under the Order or a member of the family or household of a person protected under the Order, accept through the party's attorney or a person appointed by the court, because the Court finds good cause exists; and

going to or within 500 feet of the residence of the victim.

The order was signed on February 5, 2020. In March 2020, Appellant posted on Facebook on at least three occasions and "tagged" [his wife]…. The crucial inquiry to resolve is whether those Facebook tags constitute "communications" in violation of the protective order. We hold under the facts presented herein they do….

"Communication" is not defined in any of the statutes applicable here. When a word in a statute is not defined, it is ordinarily given its plain meaning unless the statute clearly shows the word is used in some other sense. "Communication" is defined as "a process by which information is exchanged between individuals through a common system of symbols, signs, or behavior"; an "exchange of information"; "information communicated"; "information transmitted or conveyed"; a verbal or written message." …

"[T]agging" … create[es] a link to a particular Facebook friend who must be selected to receive notification of a tag…. The posts admitted into evidence demonstrate Appellant's transmission or conveyance of information or a written message sufficient to constitute "communications." Conflicts in the evidence, if any, were ultimately resolved against Appellant and we must defer to the jury's resolution of those conflicts in favor of the prosecution. We find the evidence was sufficient to support Appellant's conviction for violation of a protective order….

I have argued that criminal harassment laws and similar court orders may sometimes permissibly restrict unwanted speech to a person—"communications with a protected person," in the court's words—but not speech about a person (unless it's otherwise constitutionally unprotected, for instance is libel or a true threat of illegal conduct). This decision, as I read it, essentially treats tagging as speech to a person, since the same post could have just mentioned Boes's then-wife without tagging her, and the function of the tagging appears to have been precisely to make it more likely that Boes will receive notification of the message.

The State was represented by Daniel Sakaida.

The post Facebook "Tagging" = Communication with the Tagged Person, for Purposes of Restraining Order appeared first on

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