State v. Abigail Marie Stubbs ( 2016 )

Reversed and Remanded and Opinion filed August 9, 2016.
In the
Fourteenth Court of Appeals
NO. 14-15-00510-CR
THE STATE OF TEXAS, Appellant
V.
ABIGAIL MARIE STUBBS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause No. 1425867
OPINION
Abigail Stubbs was indicted for the felony offense of online impersonation under
section 33.07(a) of the Texas Penal Code. See Tex. Penal Code § 33.07(a), (c) (West
2015). Stubbs filed a pretrial application for writ of habeas corpus in which she asserted
that the online impersonation statute is unconstitutional. Stubbs argued that the statute
violates the First Amendment because it is overbroad on its face. She also argued that
the statute is void for vagueness and violates the Dormant Commerce Clause. Stubbs
requested that the trial court dismiss her indictment. The trial court granted relief,
declaring all of section 33.07 unconstitutional as written. The State appeals.
Because Stubbs was indicted only under subsection (a) of section 33.07, the trial
court did not have jurisdiction to declare the entire statute unconstitutional. With regard
to subsection (a), the statute prohibits conduct that is not constitutionally protected, but
also implicates protected speech. However, we conclude that the restriction is not
content based and therefore not subject to strict scrutiny. Because the statute does not
reach a substantial amount of constitutionally protected speech in furthering the State’s
significant interest in proscribing criminal, nonconsensual, online use of someone else’s
name or persona, we reject Stubbs’ overbreadth challenge. We also conclude that the
statute is not unconstitutionally vague and does not violate the Dormant Commerce
Clause. We therefore reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
Stubbs was indicted under section 33.07(a) of the Texas Penal Code:
A person commits an offense if the person, without obtaining the other
person’s consent and with the intent to harm, defraud, intimidate, or
threaten any person, uses the name or persona of another person to:
(1) create a web page on a commercial social networking site or
other Internet website; or
(2) post or send one or more messages on or through a commercial
social networking site or other Internet website, other than on or
through an electronic mail program or message board program.
Id. § 33.07(a). Specifically, Stubbs was alleged to have on or about April 8, 2014,
unlawfully, and with the intent to harm, defraud, intimidate, and threaten any person,
used the persona of complainant A.H. to post one or more messages on and through an
Internet website, namely, Craigslist.com, without obtaining the complainant’s consent.
See id. § 33.07(a)(2). An offense under subsection (a) is a felony of the third degree.
Id. § 33.07(c).
Stubbs filed a pretrial application for writ of habeas corpus. Stubbs argued the
2
statute is unconstitutionally overbroad on its face under the First Amendment because it
is a content-based restriction that criminalizes a substantial amount of protected speech.
Stubbs also argued that the statute is unconstitutionally vague and violates the Dormant
Commerce Clause. See Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App.
2014) (defendant may file pretrial application for writ of habeas corpus to raise facial
challenge to constitutionality of statute that defines offense charged).1 On May 13,
2015, the trial court signed an order on writ of habeas corpus, which granted Stubbs
relief.
In this order, the trial court stated “Section 33.07 of the Texas Penal Code is
unconstitutional as written” without any limitation. However, the parties agree that the
class A misdemeanor offense in subsection (b) of section 33.07 is not at issue because
Stubbs was charged under, and only could challenge the constitutionality of, subsection
(a). See Tex. Penal Code § 33.07(b).2 Therefore, the trial court did not have jurisdiction
to declare all of section 33.07 unconstitutional, but rather only subsection (a). See
Limon v. State, 947 S.W.2d 620, 625 (Tex. App.—Austin 1997, no writ); State v.
Cannady, 913 S.W.2d 741, 745 (Tex. App.—Corpus Christi 1996), aff’d, 11 S.W.3d
205 (Tex. Crim. App. 2000), cert. denied, 560 U.S. 920 (2010).3
1
Stubbs did not argue that the statute was unconstitutional as applied to her.
2
Subsection (b) provides:
A person commits an offense if the person sends an electronic mail, instant message,
text message, or similar communication that references a name, domain address, phone
number, or other item of identifying information belonging to any person:
(1) without obtaining the other person’s consent;
(2) with the intent to cause a recipient of the communication to reasonably
believe that the other person authorized or transmitted the communication; and
(3) with the intent to harm or defraud any person.
Tex. Penal Code § 33.07(b) (West 2015).
3
See also Petersimes v. State, No. 05-10-00227-CR, 2011 WL 2816725, at *9 (Tex. App.—
Dallas July 19, 2011, pet. ref’d) (not designated for publication).
3
On appeal, the State argues that the trial court erred in granting Stubbs’ writ of
habeas corpus quashing her indictment and in declaring section 33.07(a)
unconstitutional based on: (1) overbreadth, (2) vagueness, and (3) the Dormant
Commerce Clause.
II. ANALYSIS
Standard of review
Whether a statute is facially constitutional is a question of law that we review de
novo. Ex Parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). We begin with the
presumption that the statute is valid and that the Legislature has not acted unreasonably
or arbitrarily. Id. at 14–15; Ex parte Flores, 483 S.W.3d 632, 638 (Tex. App.—Houston
[14th Dist.] 2015, pet. ref’d) (citing Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim.
App. 2002)). Ordinarily, the party challenging the statute carries the burden to establish
the statute’s unconstitutionality. Ex Parte Lo, 424 S.W.3d at 15.
The First Amendment—which prohibits laws “abridging the freedom of
speech”—limits the government’s power to regulate speech based on its substantive
content. Ex parte Flores, 483 S.W.3d at 639; see U.S. Const. amend. I; Reed v. Town of
Gilbert, Ariz., —U.S.—, 135 S. Ct. 2218, 2226, 192 L. Ed. 2d 236 (2015). Content-
based regulations are those that distinguish favored from disfavored speech based on the
idea or message expressed. Ex parte Lo, 424 S.W.3d at 15; Ex parte Flores, 483
S.W.3d at 639. Content-based regulations operate to restrict particular viewpoints or
public discussion of an entire topic or subject matter. See Reed, —U.S.—, 135 S. Ct. at
2229–30. In these situations, the usual presumption of constitutionality is reversed; the
content-based statute is presumed invalid, and the State bears the burden to rebut this
presumption. Ex Parte Lo, 424 S.W.3d at 15; Ex parte Flores, 483 S.W.3d at 639.
A statute that suppresses, disadvantages, or imposes differential burdens upon
4
speech because of its content is subject to the most exacting or strict scrutiny. Ex parte
Lo, 424 S.W.3d at 15 (citing Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642
(1994)). Such a regulation may be upheld only if it is necessary to serve a compelling
state interest and employs the least speech-restrictive means to achieve its goal. Id.
Content-neutral regulation of the time, place, and manner of speech, as well as
regulation of speech that can be justified without reference to its content, receives
intermediate scrutiny. Ex parte Flores, 483 S.W.3d at 639 (citing Turner Broad. Sys.,
512 U.S. at 642, and Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Such a
regulation is permissible if it promotes a significant governmental interest and does not
burden substantially more speech than necessary to further that interest. Id. (citing
McCullen v. Coakley, —U.S.—, 134 S. Ct. 2518, 2534–35, 189 L. Ed. 2d 502 (2014),
and Ex parte Thompson, 442 S.W.3d at 344).
Section 33.07(a) implicates protected speech.
As an initial matter, however, we consider the State’s position that the trial court
erred by presuming the statute invalid and by applying strict scrutiny because the online
impersonation statute does not implicate the First Amendment. The State argues that
the statute does not ban speech, but instead only “bans conduct, specifically, the ‘use’ of
another’s name or persona to ‘create’ a web page or to ‘send’ messages.”4
To determine what the statute covers, we consider the plain meaning of the acts
proscribed by the statute. See id. at 643 (citing United States v. Williams, 553 U.S. 285,
293 (2008)). Setting aside lack of consent and intent, section 33.07(a) prohibits using
the name or persona of another person to create a web page on a commercial social
networking site or other Internet website, or to post or send one or more messages on or
through a commercial social networking site or other Internet website. See Tex. Penal
4
But see Ex Parte Flores, 483 S.W.3d at 639 (conduct may “possess sufficient communicative
elements to bring the First Amendment into play” (quoting Tex. v. Johnson, 491 U.S. 397, 404 (1989)).
5
Code § 33.07(a).
The statute defines “commercial social networking site” as “any business,
organization, or other similar entity operating a website that permits persons to become
registered users for the purpose of establishing personal relationships with other users
through direct or real-time communication with other users or the creation of web pages
or profiles available to the public or to other users.” Id. § 33.07(f)(1) (West 2015). To
“use” is to employ for the accomplishment or achievement of a purpose, or to apply to
oneself. New Oxford American Dictionary 1907 (3d ed. 2010). One’s “name” is a
word or words identifying a person, by which a person is known or addressed. Black’s
Law Dictionary 1119 (9th ed. 2009); New Oxford American Dictionary 1163. One’s
“persona” is the aspect of a person’s character that is presented to or perceived by
others. New Oxford American Dictionary 1307. To “create” is to bring into existence.
Id. 405. A “web page” is a hypertext document connected to the World Wide Web. Id.
1958. A “website” is a set of related web pages located under a single domain name.
Id. The “Internet” is a global computer network providing information and
communication facilities through interconnected networks using a common set of
communication protocols. Id. 908; see Reno v. Am. Civil Liberties Union, 521 U.S. 844,
849 (1997) (“The Internet is an international network of interconnected computers.”).
To “post” is to publish or announce by affixing or displaying a notice, including online.
Black’s Law Dictionary 1284; New Oxford American Dictionary 1365. To “send” is to
deliver for transmission or cause to be transmitted, including electronically, to a
particular destination. New Oxford American Dictionary 1589. A “message” is a
verbal, oral, written, or recorded communication sent to or left for a recipient, often
electronically. Black’s Law Dictionary 1080; New Oxford American Dictionary 1098.
Considering the plain text of the statute, the conduct proscribed by section
33.07(a) is certainly connected to and will tend to involve speech. The State argues
6
that, in any event, such speech is unprotected because it is integral to criminal conduct.5
Speech integral to criminal conduct has long been recognized as a category of speech
that may be prevented and punished without raising a First Amendment problem. See
United States v. Stevens, 559 U.S. 460, 468 (2010) (citing Giboney v. Empire Storage &
Ice Co., 336 U.S. 490, 498 (1949)). Otherwise proscribable criminal conduct does not
become protected by the First Amendment simply because the conduct happens to
involve the written or spoken word. See United States v. Alvarez, —U.S.—, 132 S. Ct.
2537, 2544 (2012) (plurality op.).
The State analogizes section 33.07(a) to section 33.021(c) of the Texas Penal
Code, which prohibits an actor from using electronic communications to solicit a minor
for sex. See Tex. Penal Code § 33.021(c) (West 2015).6 In Ex parte Lo, the Court of
Criminal Appeals applied strict scrutiny and concluded that section 33.021(b) 7 was
5
Other historically unprotected categories of speech include obscenity, defamation, fraud,
incitement, and child pornography—where “the evil to be restricted so overwhelmingly outweighs the
expressive interests, if any, at stake.” See United States v. Stevens, 559 U.S. 460, 468–72 (2010)
(refusing to include depictions of animal cruelty as a category of unprotected speech) (quoting New
York v. Ferber, 458 U.S. 747, 763–74 (1982)).
6
Section 33.021(c) provides:
A person commits an offense if the person, over the Internet, by electronic mail or text
message or other electronic message service or system, or through a commercial online
service, knowingly solicits a minor to meet another person, including the actor, with the
intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual
intercourse with the actor or another person.
Tex. Penal Code § 33.021(c).
7
At the time, section 33.021(b) provided:
A person who is 17 years of age or older commits an offense if, with the intent to arouse
or gratify the sexual desire of any person, the person, over the Internet, by electronic
mail or text message or other electronic message service or system, or through a
commercial online service, intentionally:
(1) communicates in a sexually explicit manner with a minor; or
(2) distributes sexually explicit material to a minor.
Ex parte Lo, 424 S.W.3d at 17 n.23 (citing Tex. Penal Code § 33.021(b)).
7
unconstitutionally overbroad. 424 S.W.3d at 15–16, 24. However, even though the
constitutionality of section 33.021(c) was not at issue in Ex Parte Lo, in dicta the Court
contrasted subsection (c) to subsection (b) and noted that solicitation statutes have been
routinely upheld as constitutional because offers to engage in illegal transactions such as
sexual assault of a minor are categorically excluded from First Amendment protection.
See id. at 16. The Court opined that “it is the conduct of requesting a minor to engage in
illegal sexual acts that is the gravamen of the offense.” Id. at 16–17 (emphasis in orig.).
In other words, although solicitation conduct involves speech, it falls outside the ambit
of First Amendment protection because the speech attempts to arrange illegal sex acts
with a minor. See id. & n.21 (discussing cases); see also Ex parte Wheeler, 478 S.W.3d
89, 93–94 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (concluding that “section
33.021(c) regulates conduct and unprotected speech”).8
We find the Court’s discussion in Ex Parte Lo to be instructive and so consider
whether section 33.07(a) proscribes conduct involving only unprotected speech. To
determine what the gravamen is at stake, we must consider the specific types of criminal
intent delineated by the statute and the conduct such intent requirements seek to
proscribe. See Ex Parte Thompson, 442 S.W.3d at 337 (“[T]he mere existence of an
intent element does not by itself eliminate First Amendment concerns posed by a
statute; it is the specific type of intent that matters.” (internal footnotes omitted)).
8
Post Ex Parte Lo, several Texas appellate courts have upheld the constitutionality of section
33.021(c). E.g., Mower v. State, No. 03-14-00094-CR, 2016 WL 1426517, at *3–4 (Tex. App.—
Austin Apr. 7, 2016, no pet.) (mem. op. on reh’g, not designated for publication); Alvarez v. State, No.
11-15-00201-CR, 2016 WL 859363, at *2–3 (Tex. App.—Eastland Mar. 3, 2016, pet. filed) (mem. op.,
not designated for publication); Ex Parte Fisher, 481 S.W.3d 414, 417–20 (Tex. App.—Amarillo
2015, pet. ref’d); Ex parte Wheeler, 478 S.W.3d at 93–94; Ex parte Victorick, No. 09–13–00551–CR,
2014 WL 2152129, at *2–6 (Tex. App.–Beaumont May 21, 2014, pet. ref’d) (mem. op., not designated
for publication), cert. denied, Victorick v. Tex., —U.S.—, 135 S. Ct. 1557 (2015); Ex parte Zavala,
421 S.W.3d 227, 231–32 (Tex. App.—San Antonio 2013, pet. ref’d); accord Collins v. State, 479
S.W.3d 533, 540–41 (Tex. App.—Eastland Nov. 5, 2015, no pet.) (upholding portion of section
21.12(a)(3), “Improper Relationship Between Educator and Student,” which incorporates section
33.021(c)).
8
Section 33.07(a) lists four types of intent: intent to harm, intent to defraud, intent to
intimidate, and intent to threaten. See Tex. Penal Code § 33.07(a).
Intent to defraud. To “defraud” means to cause injury or loss, or to illegally
obtain money, by deception. Black’s Law Dictionary 488; New Oxford American
Dictionary 456. The government may restrict speech “made to effect a fraud or secure
moneys or other valuable considerations . . . without affronting the First Amendment.”
Alvarez, —U.S.—, 132 S. Ct. at 2547 (citing Va. Bd. of Pharmacy v. Va. Citizens
Consumer Council, Inc., 425 U.S. 748, 771 (1976)); see Stevens, 559 U.S. at 468. We
conclude the First Amendment permits regulation of conduct involving fraudulent
speech, such as that targeted by section 33.07(a). See Stevens, 559 U.S. at 468.
Intent to intimidate and intent to threaten. To “intimidate” means to “frighten,”
or make someone “afraid” or feel fear, particularly to make someone do what one wants.
New Oxford American Dictionary 28, 695, 911. “Fear” is an unpleasant emotion
caused by the threat of danger, pain, or harm. Id. 632. To “threaten” means to state
one’s intention to take hostile action, or inflict pain, harm, or loss against another.
Black’s Law Dictionary 1618; New Oxford American Dictionary 1806. In the absence
of a Penal Code definition, the Court of Criminal Appeals has stated that the plain
meaning of “threaten” includes “to declare an intention of hurting or punishing; to make
threats against; [] to be a menacing indication of (something dangerous, evil, etc.) . . .; []
to express intention to inflict (injury, retaliation, etc.); [and] to be a source of danger,
harm, etc., to.” Olivas v. State, 203 S.W.3d 341, 345 (Tex. Crim. App. 2006) (citing
Webster’s New Twentieth Century Dictionary of the English Language Unabridged
1901 (2d ed. 1983)).
“True threats” comprise another category of speech falling outside the protection
of the First Amendment—“statements where the speaker means to communicate a
serious expression of an intent to commit an act of unlawful violence to a particular
9
individual or group of individuals.” Va. v. Black, 538 U.S. 343, 359 (2003) (citing
Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam), and R.A.V. v. City of St.
Paul, 505 U.S. 377, 388 (1992)). “Intimidation in the constitutionally proscribable
sense of the word is a type of true threat, where a speaker directs a threat to a person or
group of persons with the intent of placing the victim in fear of bodily harm or death.”
Id. at 360.
There is no dispute that the Legislature legitimately may punish “threatening” and
“intimidating” speech involving physical harm or violence. The act of threatening,
whether or not the actor actually produces fear of bodily injury in another, is a socially
intolerable type of conduct or “wrong” that implicates society’s interest in establishing
criminal laws. See Olivas, 203 S.W.3d at 346–48 (discussing term “threaten” in Penal
Code offenses of assault by threat, section 22.01(a)(2), robbery by threat, section
29.02(a)(2), and terroristic threat, section 22.07(a)(2)).9 “Threats may be costly and
dangerous to society in a variety of ways, even when their authors have no intention
whatever of carrying them out.” Puckett v. State, 801 S.W.2d 188, 194 (Tex. App.—
Houston [14th Dist.] 1990, pet. ref’d), cert. denied, Puckett v. Tex., 502 U.S. 990 (1991)
(citing Rogers v. United States, 422 U.S. 35, 47 (1975) (Marshall, J., concurring)); see
Black, 538 U.S. at 359–60 (“The speaker need not actually intend to carry out the
threat.”). Similarly, intimidation involves “a more intense mental state . . . intent to
frighten,” which “conduct is much less likely to enjoy [First Amendment] protection.”
Long, 931 S.W.2d at 293.
“When the intent is to do something that, if accomplished, would be unlawful and
outside First Amendment protection, such as the intent to threaten or intimidate, such an
9
Further, threats of physical harm need not be directly expressed, but rather “may be contained
in veiled statements nonetheless implying injury to the recipient when viewed in all the
circumstances.” See Brock v. State, —S.W.3d—, No. 10-14-00224-CR, 2016 WL 129510, at *12
(Tex. App.—Waco Jan. 7, 2016, pet. ref’d) (quoting Manemann v. State, 878 S.W.2d 334, 337 (Tex.
App.—Austin 1994, pet. ref’d)).
10
intent might help to eliminate First Amendment concerns.” Ex Parte Thompson, 442
S.W.3d at 338 (citing Black, 538 U.S. at 359–63). For example, in the context of
upholding section 36.06, “Obstruction or Retaliation,” against a facial overbreadth
challenge, we have held that threatening to harm another person by an unlawful act
“implicates no First Amendment protections.” Webb v. State, 991 S.W.2d 408, 415
(Tex. App.—Houston [14th Dist.] 1999, pet. ref’d); see Puckett, 801 S.W.2d at 193.10
Although section 36.06 does not expressly provide that the threats to harm relate to
physical harm, it ties such intent to “an unlawful act.” See Tex. Penal Code § 36.06(a)
(West 2015). Section 33.07(a), however, does not expressly state that the intent to
intimidate or the intent to threaten be directed toward violence or physical injury, see id.
§§ 22.01(a)(2), 22.07(a)(2), 29.02(a)(2) (West 2015), or toward an unlawful act, see id.
§ 36.06(a). Therefore, we cannot conclude that all intimidation and threatening conduct
proscribed by section 33.07(a) falls wholly outside the First Amendment.
Intent to harm. The noun “harm” is defined both in the introductory provisions11
and in chapter 33, “Computer Crimes,”12 of the Penal Code. Essentially, “harm”
10
At the time, section 36.06 provided:
A person commits an offense if he intentionally or knowingly harms or threatens to
harm another by an unlawful act:
(1) in retaliation for or on account of the service of another as a public servant,
witness, prospective witness, informant, or a person who has reported or who
the actor knows intends to report the occurrence of a crime; or
(2) to prevent or delay the service of another as a public servant, witness,
prospective witness, informant, or a person who has reported or who the actor
know intends to report the occurrence of a crime.
See Webb, 991 S.W.2d at 413 (citing Tex. Penal Code Ann. § 36.06(a)).
11
Tex. Penal Code § 1.07(a)(25) (West 2015) (defining “harm” as “anything reasonably
regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person
affected is interested”).
12
Id. § 33.01(14) (West 2015) (defining “harm” as “partial or total alteration, damage, or
erasure of stored data, interruption of computer services, introduction of a computer virus, or any other
loss, disadvantage, or injury that might reasonably be suffered as a result of the actor’s conduct”).
11
includes anything reasonably regarded as or that might reasonably be suffered in the
way of loss, disadvantage, or injury. See id. §§ 1.07(25), 33.01(14) (West 2015); see
also Black’s Law Dictionary 784 (“injury, loss, damage; material or tangible
detriment”); New Oxford American Dictionary 793 (“physical injury,” “material
damage,” and “actual or potential ill effects or danger”). Section 33.07(a) includes harm
as a verb—the actor must commit the offense “with the intent to harm . . . any person.”
Id. § 33.07(a). At its simplest, the plain meaning of the verb to “harm” is “to cause
harm to.” Merriam Webster’s Collegiate Dictionary 569 (11th ed. 2003). Without
using “harm” in the definition, to “harm” means to physically injure, damage the health
of, or have an adverse effect on. New Oxford American Dictionary 793. Setting aside
when intent involves physical harm, however, speech merely intended to harm someone
by, e.g., hurting her feelings is protected. See Long v. State, 931 S.W.2d 285, 293, 296
(Tex. Crim. App. 1996) (conduct does not lose First Amendment protection merely
because of intent to annoy, harass, alarm, abuse, torment, or embarrass). In other words,
we cannot conclude the statute only proscribes harmful conduct that is unprotected.
Because the statute reaches some protected speech, we proceed to determine
whether such regulation is content based or content neutral.
Section 33.07(a) does not restrict speech based on its content.
According to Stubbs, section 33.07(a) is content based because if one creates a
web page without someone else’s consent to revile that person, she violates the law, but
if she does so to praise that person, she does not. Stubbs also contends that because it is
necessary to look at the content of the speech—either the web page or the message—to
decide whether the speaker violated the law, section 33.07(a) is content based. We
disagree.
“Because strict scrutiny applies either when a law is content based on its face or
when the purpose and justification for the law are content based, a court must evaluate
12
each question before it concludes that the law is content neutral and thus subject to a
lower level of scrutiny.” Reed, —U.S.—, 135 S. Ct. at 2228. The first step in the
analysis is to determine whether the law is content based or content neutral on its face.
See id. Statutes that “place[] a prohibition on discussion of particular topics, while
others [are] allowed, [are] constitutionally repugnant.” Hill v. Colo., 530 U.S. 703,
722–23 (2000) (discussing Carey v. Brown, 447 U.S. 455, 462 (1980), which found
“peaceful picketing” statute that “accorded preferential treatment to expression
concerning one particular subject matter—labor disputes—while prohibiting discussion
of all other issues” was content based).
Nothing on the face of section 33.07(a) indicates that any particular topic or
subject matter of speech otherwise would be restricted (or not) more than speech on any
other topic or subject matter. Cf. Boos v. Barry, 485 U.S. 312, 319 (1988) (concluding
that embassy-picketing statute was content based—“the government has determined that
an entire category of speech—signs or displays critical of foreign governments—is not
to be permitted”). Unlike the Texas “improper photography” statute, section
21.15(b)(1),13 and the “sexually explicit communications” provision, section
33.021(b),14 section 33.07(a) on its face does not “most assuredly” discriminate on the
basis of an entire topic or subject matter, such as sexual content.15 There is no
13
At the time, section 21.15(b)(1) provided:
A person commits an offense if the person:
(1) photographs or by videotape or other electronic means records . . . a visual
image of another at a location that is not a bathroom or private dressing room:
(A) without the other person’s consent; and
(B) with intent to arouse or gratify the sexual desire of any person.
Ex Parte Thompson, 442 S.W.3d at 333 (citing Tex. Panel Code § 21.15(b)(1)).
14
See n.7.
15
See Ex parte Lo, 424 S.W.3d at 17, 25 (“Article 33.021 contains a separate, very different,
subsection (b), that prohibits and punishes speech based on its content. . . . The statute bars explicit
descriptions of sexual acts, but it also bars any electronic communication or distribution of material
13
indication that the statute would effectively result in restricting speech on one subject
more than others. Moreover, even if it did, this does not render a facially neutral statute
content based. “[A] facially neutral law does not become content based simply because
it may disproportionately affect speech on certain topics.” See McCullen, —U.S.—,
134 S. Ct. at 2531 (recognizing “that by limiting the buffer zones to abortion clinics, the
Act has the ‘inevitable effect’ of restricting abortion-related speech more than speech on
other subjects” but nevertheless concluding statute was content neutral).
Nor does section 33.07(a) facially discriminate on the basis of any particular
viewpoint, an even more blatant and egregious form of content discrimination. See
Reed, —U.S.—, 135 S. Ct. at 2230. Stubbs asserts that only speech using someone
else’s name or persona without her consent in an insulting light would violate section
33.07(a). Again, the plain text of the statute does not compel such assumption. See
Hill, 530 U.S. at 723 (“The Colorado statute’s regulation of the location of protests,
education, and counseling . . . places no restrictions on—and clearly does not prohibit—
either a particular viewpoint or any subject matter that may be discussed by a
speaker.”). Nowhere does the statute state that if an actor’s online usage of someone
else’s name or persona without her consent and with either the intent to harm, defraud,
intimidate, or threaten any person to create a web page or post a message consists of
praise instead of criticism, such actor would not be violating the law. See id. at 725
(buffer-zone statute was content neutral—applying to both abortion opponents and
speakers who “chant[] in praise of the Supreme Court and its abortion decisions”).
Someone could with malicious intent use another person’s name or persona without her
that ‘relates to’ sexual conduct.”); see also Ex Parte Thompson, 442 S.W.3d at 347 (“The provision at
issue here penalizes only a subset of non-consensual image and video producing activity—that which
is done with the intent to arouse or gratify sexual desire. We find this discrimination to be content
based. As we have explained above, sexual thoughts are included within the protection of the First
Amendment. By discriminating on the basis of the sexual thought that underlies the creation of
photographs or visual recordings, the statute discriminates on the basis of content.”).
14
consent to create a web page or post or send a message not involving any “reviling”
speech against the other person and be subject to the statute.
Having found the text of section 33.07(a) to be facially neutral, we next consider
whether the law’s justification or purpose otherwise renders it content based. See Reed,
—U.S.—, 135 S. Ct. at 2227–28. In other words, we consider whether the government
has adopted a regulation of speech because of disagreement with or distaste for the
message it conveys. See id. at 2227 (citing Ward, 491 U.S. at 791). The State contends
that the Legislature “was concerned about the increased wave of serious crimes that
have occurred with the advent of social networking websites.” See House Research
Organization, Bill Analysis, Tex. H.B. 2003, 81st Leg., R.S. (May 8, 2009), available at
http://www.lrl.state.tx.us/scanned/hroBillAnalyses/81-0/HB2003.pdf. The State argues
that the Legislature’s intent was to criminalize malicious assumption of someone else’s
identity amounting to fraud or harassment. See id. Consistent with the text of the
statute, the Legislature did not appear to be targeting or expressing its disagreement
with any particular topic or viewpoint, but rather sought to address malicious usage of
someone else’s name or persona to create a web page or post a message online without
her permission. Cf. State v. Johnson, 475 S.W.3d 860, 874–75 (Tex. Crim. App. 2015)
(despite lack of explicit content-based limitation, flag-destruction statute was content
based where its only ascertainable purpose was to protect integrity of flag as symbol).
Such asserted interests do not reflect that the Legislature sought to impose burdens on
speech based on its content or aimed at a particular viewpoint.
Moreover, just because the content of the web page or the message may need to
be examined does not render the law content based. “It is common in the law to
examine the content of a communication to determine the speaker’s purpose. Whether a
particular statement constitutes a threat, blackmail, an agreement to fix prices, a
copyright violation, a public offering of securities, or an offer to sell goods often
15
depends on the precise content of the statement.” See Hill, 530 U.S. at 721.16 We
cannot conclude that this is a situation where the Legislature has proscribed speech in
order “to limit discussion of controversial topics and thus to shape the agenda for public
debate.” Cf. F.C.C. v. League of Women Voters of Cal., 468 U.S. 364, 383 (1984)
(enforcement authorities had to examine particular station management statements to
determine whether they concerned “controversial issues of public importance” and
therefore constituted proscribed “editorials”).
Based on the foregoing, we conclude that section 33.07(a) is neither content nor
viewpoint based. Therefore, we do not presume the invalidity of the statute and need
not analyze it under strict scrutiny. See McCullen, —U.S.—, 134 S. Ct. at 2534.
Section 33.07(a) is not facially overbroad.
When a party challenges a statute as both overbroad and vague, we first consider
the overbreadth challenge. See Ex parte Flores, 483 S.W.3d at 643. A statute or
ordinance is facially overbroad if it reaches a substantial amount of constitutionally
protected conduct, such as speech or conduct protected by the First Amendment. See id.
at 642 (citing Duncantell v. State, 230 S.W.3d 835, 843 (Tex. App.—Houston [14th
Dist.] 2007, pet. ref’d)).17 The overbreadth doctrine is “strong medicine” to be
employed sparingly and only as a last resort. Id. (citing Ex parte Thompson, 442
16
Stubbs’ reliance on Ex Parte Thompson does not persuade us otherwise. See 442 S.W.3d at
345 (citing Ex Parte Lo, 424 S.W.3d at 15 n.12 (citing Gresham v. Peterson, 225 F.3d 899, 905–06
(7th Cir. 2000), where the Seventh Circuit Court of Appeals qualified such observation specifically
with the Supreme Court’s opinions in Ward and Hill and where the parties in fact agreed that the
statute at issue was content neutral)).
17
The overbreadth analysis here dovetails with the requirement that content-neutral statutes
implicating speech be “narrowly tailored to serve a significant governmental interest.” See McCullen,
—U.S.—, 134 S. Ct. at 2534 (quoting Ward, 491 U.S. at 796). To be narrowly tailored, such statute
must not “burden substantially more speech than is necessary to further the government’s legitimate
interests.” Id. at 2535 (quoting Ward, 491 U.S. at 799). When the statute is not content based,
however, it “need not be the least restrictive or least intrusive means” of serving the governmental
interest. See id. (quoting Ward, 491 U.S. at 798).
16
S.W.3d at 349). “A statute will not be invalidated for overbreadth merely because it is
possible to imagine some unconstitutional applications.” Id. at 642–43 (citing Members
of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800–01 (1984));
see Duncantell, 230 S.W.3d at 843 (“[W]e will not strike down a statute for overbreadth
unless there is a realistic danger that the statute itself will significantly compromise
recognized First Amendment protections of parties not before the Court.”). Laws that
inhibit the exercise of First Amendment rights will be held facially overbroad only if the
impermissible applications of the law are real and substantial when judged in relation to
the statute’s plainly legitimate sweep. See Ex Parte Flores, 483 S.W.3d at 643 (citing
Broadrick v. Okla., 413 U.S. 601, 612–15 (1973)); see also New York v. Ferber, 458
U.S. 747, 770 (1982) (“[P]articularly where conduct and not merely speech is involved,
we believe that the overbreadth of a statute must not only be real, but substantial as
well, judged in relation to the statute’s plainly legitimate sweep.”). “The burden rests
upon the person challenging the statute to establish its unconstitutionality.” Ex Parte
Flores, 483 S.W.3d at 643 (citing Rodriguez, 93 S.W.3d at 69). We must uphold the
statute if we can determine a reasonable construction rendering it constitutional. Id.
(citing Duncantell, 230 S.W.3d at 843).
We conclude that the statute serves a significant governmental interest. The
statute seeks to proscribe malicious conduct associated with the nonconsensual usage of
someone else’s name or persona to create a web page or post or send a message on a
commercial social networking site or other Internet website.18 Stubbs acknowledges the
18
Other states, including California, Connecticut, Hawaii, Mississippi, and New York, also
have sought to address serious crimes involving online impersonation and have enacted criminal
statutes. See Cal. Penal Code § 528.5(a) (“any person who knowingly and without consent credibly
impersonates another actual person through or on an Internet Web site or by other electronic means for
purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public
offense”); Conn. Gen. Stat. § 53a-130(a)(5) (“person is guilty of criminal impersonation when such
person . . . with intent to defraud, deceive or injure another, uses an electronic device to impersonate
another and such act results in personal injury or financial loss to another or the initiation of judicial
17
statute’s legitimate interest in addressing “serious crimes,” but generally contends such
conduct was already criminal before the Legislature passed section 33.07. However, the
statute particularly involves use of the Internet, which significantly increases ease of
communication. See Ex Parte Lo, 424 S.W.3d at 16 n.21. Moreover, the Legislature
expressed particular concern with crimes associated with “the advent of social
networking sites” not adequately covered by other laws. See House Research
Organization, Bill Analysis, Tex. H.B. 2003, 81st Leg., R.S. (May 8, 2009); House
Comm. on Crim. Jurisprudence, Bill Analysis, Tex. H.B. 2003, 81st Leg., R.S. (2009),
available at http://www.legis.state.tx.us/tlodocs/81R/analysis/html/HB02003H.htm.19
In particular, social networking websites,20 which allow users to establish an online
account, create a profile, and invite others to access that profile as “friends,” are
“susceptible to fabrication and manipulation.” See Campbell v. State, 382 S.W.3d 545,
550 (Tex. App.—Austin 2012, no pet.).
Stubbs characterizes the intents listed in section 33.07(a) as just involving
proceedings against another”); Haw. Rev. Stat. § 711-1106.6 (“person commits the offense of
harassment by impersonation if that person poses as another person, without the express authorization
of that person, and makes or causes to be made, either directly or indirectly, a transmission of any
personal information of the person to another by any oral statement, any written statement, or any
statement conveyed by any electronic means, with the intent to harass, annoy, or alarm any person”);
Miss. Code. Ann. § 97-45-33(a) (“any person who knowingly and without consent impersonates
another actual person through or on an Internet website or by other electronic means for purposes of
harming, intimidating, threatening or defrauding another person is guilty of a misdemeanor”); N.Y.
Penal Law § 190.25(4) (“person is guilty of criminal impersonation . . . when he . . . [i]mpersonates
another by communication by internet website or electronic means with intent to obtain a benefit or
injure or defraud another”). So far, no courts have directly addressed the constitutionality of these
other online impersonation statutes.
19
See also Cassie Cox, Protecting Victims of Cyberstalking, Cyberharassment, and Online
Impersonation Through Prosecutions and Effective Laws, 54 Jurimetrics J. 277, 302 (2014)
(“Although the Internet is an effective tool that facilitates communication between people around the
world, it has spawned a new generation of crimes that are not reflected in federal and state laws.”).
20
Facebook is currently the preeminent social networking website, which as of April 2015
boasted approximately 1.39 billion monthly active users. See In re CTLI, LLC, 528 B.R. 359, 365
(Bankr. S.D. Tex. 2015).
18
thoughts (even if criminal in nature) that all individuals are allowed to have so long as
they do not act on them. But this argument ignores that the statute proscribes conduct
performed with such criminal intent. See Ex Parte Harrington, —S.W.3d—, No. 14-
16-00059-CR, 2016 WL 3902228, at *4 (Tex. App.—Houston [14th Dist.] July 14,
2016, no. pet. h.) (concluding that section 32.51, “Fraudulent Use or Possession of
Identifying Information,”21 was not constitutionally overbroad and rejecting argument
that it was a “thought crime”: “The thought itself would not be punishable, but the
proscribed activity would be.”). Actually using someone’s name or persona without her
consent to create a web page or post or send a message on or through a commercial
social networking site or other Internet website with criminal intent means that what
may have previously been mere thoughts instead are now thoughts put into and which
accompany punishable actions.22
Stubbs further argues that the statute’s illegitimate sweep is real and substantial.
Stubbs provides hypothetical examples of unconstitutional applications of section
33.07(a): web pages intended to criticize political figures or corporations, or to damage
someone’s reputation.
21
Section 32.51 provides:
A person commits an offense if the person, with the intent to harm or defraud another,
obtains, possesses, transfers, or uses an item of:
(1) identifying information of another person without the other person’s consent;
(2) information concerning a deceased natural person, including a stillborn
infant or fetus, that would be identifying information of that person were that
person alive, if the item of information is obtained, possessed, transferred, or
used without legal authorization; or
(3) identifying information of a child younger than 18 years of age.
Tex. Penal Code § 32.51(b) (West 2015).
22
Moreover, the statute contains a lack-of-consent element that also helps narrow the statute’s
reach. Section 33.07(a)’s regulation only applies if the other person whose name or persona is used to
create the web page or post the message has not provided her consent, which means her “assent in fact,
whether express or apparent.” See Tex. Penal Code § 1.07(a)(11) (West 2015).
19
The State counters that “emotional harm” is only one of several ways, the bulk of
which involve unprotected speech, to commit an offense under the statute.23 The State’s
position is that Stubbs’ examples involving political or reputational criticism could be
properly presented in an as-applied challenge. See United States v. Cassidy, 814 F.
Supp. 2d 574, 586–88 (D. Md. 2011) (sustaining as-applied challenge to section 2261A
where speech in question had legitimate public purpose in criticizing leader of religious
sect).
Stubbs has not met her burden to show that the impermissible applications of the
statute are substantial in comparison to its plainly legitimate sweep over unprotected
conduct and speech. Although the statute was enacted in 2009, appellate case law thus
far reflects few cases prosecuted under section 33.07(a), none of which involves merely
critical speech. See Ex Parte Dupuy, —S.W.3d—, No. 14-15-00677-CR, 2016 WL
3268442, at *8 (Tex. App.—Houston [14th Dist.] June 14, 2016, no pet. h.) (defendant
allegedly without permission posted advertisements in escort section of adult website
23
The State relies mainly on cases interpreting the federal cyberstalking statute, 18 U.S.C.
§ 2261A(2)(A), where federal courts rejected overbreadth challenges. See United States v. Sayer, 748
F.3d 425, 435–36 (1st Cir. 2014); see also United States v. Osinger, 753 F.3d 939, 944 (9th Cir. 2014);
United States v. Petrovic, 701 F.3d 849, 856 (8th Cir. 2012). The federal provision states that a person
commits an offense if he:
with the intent to kill, injure, harass, intimidate, or place under surveillance with intent
to kill, injure, harass, or intimidate another person, uses the mail, any interactive
computer service or electronic communication service or electronic communication
system of interstate commerce, or any other facility of interstate or foreign commerce to
engage in a course of conduct that—
(A) places that person in reasonable fear of the death of or serious bodily injury
to a person described in clause (i), (ii), or (iii) of paragraph (1)(A); or
(B) causes, attempts to cause, or would be reasonably expected to cause
substantial emotional distress to a person described in clause (i), (ii), or (iii) of
paragraph (1)(A) . . . .
18 U.S.C. § 2261A(2). The federal statute, while somewhat analogous to section 33.07(a), differs in
that it expressly prohibits a “course of conduct” and requires that a victim be placed in fear of physical
injury or suffer or reasonably be expected to suffer “substantial emotional distress.” See id.
20
with true names, photos, and phone numbers of complainants); Ex Parte J.I.L., No. 05-
14-01490-CV, 2015 WL 4744471, at *1 (Tex. App.—Dallas June 24, 2015, pet. denied)
(mem. op., not designated for publication) (juvenile indicted for “intentionally or
knowingly using another juvenile’s persona or name to create an Instagram account
without her permission and posting a sexually explicit message on the account”).24 In
other words, there is no indication that a substantial number of section 33.07(a) cases
involve persons who are engaging in the legitimate communication of ideas, opinions,
or information rather than acting upon and expressing their criminal intent to defraud or
inflict fear of danger. See Ex Parte Dupuy, —S.W.3d—, 2016 WL 3268442, at *8, 11
(no abuse of discretion where trial court refused to reduce bail for defendant charged in
two cases under section 33.07(a); court rejected appellant’s attempt to characterize
offenses as “non-violent” and “virtual-based” where “[t]he trial court reasonably could
find that the ads exposed the complainants to danger”); cf. Ex Parte Thompson, 442
S.W.3d at 350–51 & n.154 (noting at least four appellate decisions where cases
involved application of improper photography statute to protected “purely public
photography”).25
Therefore, Stubbs’ hypothetical examples of the statute’s unconstitutional
application to merely critical speech are just that—hypothetical. Merely imagining
some possible unconstitutional applications does not suffice to demonstrate a realistic
danger that in fact the statute will be overbroadly applied. See Ex Parte Flores, 483
24
In another case, a defendant was charged with felony impersonation, pleaded guilty, and
received deferred adjudication for creating a “fraudulent Facebook page” in the maiden name of a
Kerrville City councilwoman where he featured photos of her head atop another woman’s naked torso.
Zeke MacCormack, Phony Facebook page targeted Kerrville City Council member, San Antonio
Express News, Oct. 9, 2013, available at http://www.mysanantonio.com/ default/article/Phony-
Facebook-page-targeted-Kerrville-City-4882480.php.
25
We also note that during the legislative process, the requirement that such conduct also could
be intended “to harass” and “to embarrass” was removed, reflecting the Legislature’s desire to limit the
statute’s reach to avoid merely insulting or annoying speech. See House Comm. on Crim.
Jurisprudence, Bill Analysis, Tex. H.B. 2003, 81st Leg., R.S. (2009).
21
S.W.3d at 642–43. Protected, critical speech “could of course be the subject of an as-
applied challenge.” See Williams, 553 U.S. at 302–03 (possible documentary footage of
atrocities of war rape did not render pandering or solicitation of child pornography
statute overbroad); accord Cassidy, 814 F. Supp. 2d at 583 (clear that indictment was
directed at protected speech criticizing religious leader). However, Stubbs only presents
a facial challenge here.
We conclude Stubbs has not met her burden to establish that section 33.07(a) is
facially overbroad. We sustain the State’s first issue and proceed to determine whether
the trial court properly could have granted relief based on vagueness.
Section 33.07(a) is not unconstitutionally vague.
The vagueness doctrine is an outgrowth not of the First Amendment, but rather of
the Due Process Clause of the Fifth Amendment. See Williams, 553 U.S. at 304. Under
the void-for-vagueness doctrine, a statute will be invalidated if it fails to give a person
of ordinary intelligence a reasonable opportunity to know what conduct is prohibited.
See State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006). Statutes are not
unconstitutionally vague merely because the words or terms employed in the statute are
not defined. See Engelking v. State, 750 S.W.2d 213, 215 (Tex. Crim. App. 1988).
When the words used in a statute are not otherwise defined in the statute, we will give
the words their plain meaning. See Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim.
App. 1999). Where a vagueness challenge involves First Amendment considerations, a
criminal law must: (1) be sufficiently clear to afford a person of ordinary intelligence a
reasonable opportunity to know what is prohibited, (2) establish determinate guidelines
for law enforcement, and (3) be sufficiently definite to avoid chilling protected
expression. See Ex Parte Flores, 483 S.W.3d at 643. However, “perfect clarity and
precise guidance have never been required even of regulations that restrict expressive
activity.” See Williams, 553 U.S. at 304 (quoting Ward, 491 U.S. at 794). Laws do not
22
require mathematical precision, as long as they give fair warning in light of common
understanding and are sufficiently definite to avoid arbitrary and erratic enforcement.
See Ex Parte Flores, 483 S.W.3d at 643.
Stubbs singularly attacks the statute’s incorporation of “an all-encompassing
‘harm’ standard.” The State contends that the Penal Code defines “harm” and that
“harm” is not an esoteric or complicated term devoid of understanding. We agree with
the State.
In the Texas Penal Code, “harm” means “anything reasonably regarded as loss,
disadvantage, or injury, including harm to another person in whose welfare the person
affected is interested.” Tex. Penal Code § 1.07(a)(25). In the particular context of
chapter 33, “Computer Crimes,” “harm” means “partial or total alteration, damage, or
erasure of stored data, interruption of computer services, introduction of a computer
virus, or any other loss, disadvantage, or injury that might reasonably be suffered as a
result of the actor’s conduct.” Id. § 33.01(14). Section 33.07(a) provides that a person
commits an offense if the person, “without obtaining the other person’s consent and
with the intent to harm, defraud, intimidate, or threaten any person, uses the name or
persona of another person to: (1) create a web page on a commercial social networking
site or other Internet website; or (2) post or send one or more messages on or through a
commercial social networking site or other Internet website, other than on or through an
electronic mail program or message board program.” Id. § 33.07(a).
Although section 33.07(a) includes “harm” as a verb rather than a noun, the Penal
Code definitions sufficiently inform the meaning of to “harm.” See id. §§ 1.07(a)(25),
33.01(14); see also id. § 1.07(b) (West 2015) (“The definition of a term in this code
applies to each grammatical variation of the term.”). Moreover, even if harm were not
otherwise defined, the plain meaning of “harm” is consistent with causing loss,
disadvantage, or injury. See New Oxford American Dictionary 793 (“physically
23
injure,” “damage the health of,” “have an adverse effect on”). A person of ordinary
intelligence can comprehend from the definition of “harm” and from the language of
section 33.07(a) that the prohibited conduct is use of someone else’s name or persona
without her consent to create a web page or post a message online with intent to cause
the enumerated types of data or computer damage, or anything reasonably regarded as
or that might reasonably be suffered in the way of loss, disadvantage, or injury. Cf. Ex
parte Harrington, —S.W.3d—, 2016 WL 3902228, at *4 (discussing “harm” in identity
theft statute).26 Accordingly, the statute’s term of intent to “harm” is not
unconstitutionally vague—it conveys a sufficient warning about the proscribed conduct
when measured by a common understanding and practice. See Webb, 991 S.W.2d at
416–17.
Beyond the fact that “harm” is sufficiently defined, and considering the entirety
of section 33.07(a) as we must,27 the statute includes three other proscribed intents.
Stubbs does not argue that the intents to defraud, intimidate, and threaten pose any
vagueness concerns. There is no dispute that the intent to defraud does not implicate
protected speech. Similarly, the intents to intimidate and to threaten are much less
likely to be protected because they implicate fear of physical danger. Considered in
context, the inclusion of these other operative intents listed in the statute reflects the
Legislature’s intent to target more intense rather than less intense mental states. See
Williams, 553 U.S. at 294–95 (considering statute’s “string of operative verbs” in
context to give more precise content to verbs susceptible to wide-ranging meanings in
isolation). This reading is consistent with the Legislature’s replacement of the original
intents of “harass” and “embarrass,” which clearly implicate low-intensity emotional
26
See also Ex parte Johnson, No. 10-16-00013-CR, 2016 WL 3136922, at *3 (Tex. App.—
Waco June 2, 2016, no. pet. h.) (mem. op., not designated for publication) (concluding that “harm, as
used in Section 32.51, is defined, and the statute is not void for vagueness”).
27
See Nguyen v. State, 1 S.W.3d 694, 696 (Tex. Crim. App. 1999); Ex parte S.C., 305 S.W.3d
258, 262 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
24
states, see Long, 931 S.W.2d at 296, with the intents of “harm” and “defraud.” See
House Comm. on Crim. Jurisprudence, Bill Analysis, Tex. H.B. 2003, 81st Leg., R.S.
(2009). Unlike such a standard involving “harassing” or “embarrassing” conduct, which
arguably would lend itself to arbitrary enforcement and chilling of protected speech, the
“harm” standard does not present a situation requiring wholly subjective judgments not
subject to any definition or narrowing context. See Williams, 553 U.S. at 306
(contrasting statutes tying criminal culpability to, e.g., “annoying” conduct).
We cannot conclude that section 33.07(a)’s inclusion of the intent to harm
standard renders the statute unconstitutionally void. We sustain the State’s second issue
and proceed to determine whether the trial court properly could have granted relief
based on the Dormant Commerce Clause.
Section 33.07(a) does not violate the Dormant Commerce Clause.
Stubbs contends that section 33.07(a) is unconstitutional because it unduly and
impermissibly burdens interstate commerce by attempting to place regulations on the
entirety of the Internet in violation of the Dormant Commerce Clause. See U.S. Const.
art. I, § 8, cl. 3.
The Supreme Court of the United States enunciated a general balancing test when
dealing with a Commerce Clause challenge to a statute. See Pike v. Bruce Church, Inc.,
397 U.S. 137, 142 (1970). Where the statute regulates evenhandedly to effectuate a
legitimate local public interest, and its effects on interstate commerce are only
incidental, it will be upheld unless the burden imposed on such commerce is clearly
excessive in relation to the putative local benefits. Id. (citing Huron Portland Cement
Co. v. City of Detroit, 362 U.S. 440, 443 (1960)).
Stubbs primarily relies on American Libraries Association v. Pataki, 969 F. Supp.
160 (S.D.N.Y. 1997). In Pataki, the court issued a preliminary injunction against
25
prosecutions under a New York law that made using a computer to communicate sexual
material considered harmful to a minor illegal based on the law’s severe burden on
interstate commerce, which the court found was not justifiable in light of the attenuated
local benefits. Id. at 173, 181.
However, unlike in Pataki, where the law merely was aimed at limiting exposure
by minors to sexual content, we already have determined that section 33.07(a) serves a
significant state governmental interest in reducing crimes involving nonconsensual,
malicious usage of someone else’s name or persona to create web pages or post
messages on commercial social networking sites or other Internet websites. Moreover,
the statute is even-handed—nothing within section 33.07(a) differentiates between intra-
and interstate commerce. See Tex. Penal Code § 33.07(a); cf. Ex parte Wheeler, 478
S.W.3d at 97 (concluding same with regard to section 33.021(c) prohibiting solicitation
of a minor using electronic communications). And despite Stubbs’ hypothetically
positing otherwise, we cannot conclude that any incidental effect of the statute on
interstate commerce is sufficient for us to declare section 33.07(a) unconstitutional
under the Commerce Clause. See Ex Parte Fisher, 481 S.W.3d 414, 422 (Tex. App.—
Amarillo 2015, pet. ref’d) (concluding same with regard to section 33.021(c) where
applicant provided “simple assertion that the burden on interstate commerce is
disproportionate to the local benefits”); Ex parte Wheeler, 478 S.W.3d at 96–97 (“We
also conclude that the effect of the statute on interstate commerce is only incidental in
relation to the local benefit of the statute.”).
We likewise sustain the State’s third issue.
26
III. CONCLUSION
Having rejected Stubbs’ constitutional challenges to section 33.07(a), we reverse
the trial court’s order granting Stubbs’ application for writ of habeas corpus and
dismissing the indictment against Stubbs. We remand for further proceedings.
/s/ Marc W. Brown
Justice
Panel consists of Justices Jamison, Donovan, and Brown.
Publish — TEX. R. APP. P. 47.2(b).
27