In yesterday's decision by the Texas Court of Criminal Appeals (written by Judge Mary Lou Keel) in Owens v. State, Owens had been found guilty of criminal harassment and sentenced "to 180 days in jail and a $500 fine"; the law outlaws "send[ing] repeated electronic communications in a manner reasonably likely to [and intended to] harass, annoy, alarm, abuse, torment, embarrass, or offend another." His conduct consisted of "sending about three dozen electronic messages to his former therapist [at her professional accounts] during a 15-week period," mostly via email but some via text and Facebook.
The court held this unconstitutionally punished Owens for his speech:
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 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…. 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 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. 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….
Here are the details on the messages:
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 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.
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 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 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 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." …
Judge Gina Parker concurred in part and dissented in part; the opinion is long and hard to summarize, but it largely argued that it would have been permissible for the jury to convict defendant if found that he intended to "harass, … abuse, [or] torment" defendant, but not merely if he intended to "annoy, alarm, … embarrass, or offend" her:
To some degree, the repetition inherent in the terms "harass," "torment," and "abuse," make content less important to the offense. To the extent content still matters, these terms ensure that it is considered onlywhen needed to show an intolerable violation of privacy. It is one thing to say that people should not be required to "walk on eggshells" when they speak and quite another to say that a person can systematically target another in a way that significantly disrupts the target's life or causes the target to feel like she has to constantly look over her shoulder. There is a point at which unwanted communication is pervasive enough to be an intolerable violation of privacy, and that point is captured by the words "harass," "torment," and "abuse."
Judge Kevin Yeary dissented, focusing mostly on interpretation of an earlier Texas Court of Criminal Appeals precedent. He also added,
The First Amendment protects a lot. But I do not believe it protects a person's right to bombard another private person with a barrage of repeated electronic communications of a kind designed, and reasonably likely, to {harass, annoy, alarm, abuse, torment, embarrass, or offend}.
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