Yale University: MFIA Fights Texas Law that Limits Free Expression Online

The Media Freedom and Information Access Clinic (MFIA) at Yale Law School today filed a petition requesting the Supreme Court to strike down a Texas law that limits free expression on the internet. The law punishes the repeated sending of electronic communications with the intent to harass, annoy, alarm, abuse, torment, or embarrass. MFIA’s petition on behalf of clients Charles Barton and Nathan Sanders argues that the law is overbroad, may be selectively enforced against unpopular groups, and may lead to self-censorship.

“Free expression on the internet is vital to a healthy democracy. The Texas law makes much of that speech a crime, including political speech at the heart of the First Amendment’s protections,” MFIA clinical lecturer Stephen Stich said. “Our petition asks the court to reaffirm our nation’s commitment to free democratic discourse in the modern age.”

Barton and Sanders were separately charged under the law for sending unspecified electronic communications. Their applications for habeas corpus were denied by the trial courts and they appealed to the Texas Court of Appeals for the Second and Seventh Districts, respectively. Although the Second District reversed Barton’s case and struck down the law for being vague and overbroad, the Seventh District affirmed Sanders’ case and upheld the statute.

Both cases were appealed to the Texas Criminal Court of Appeals, the state’s highest court for criminal matters. The Court of Criminal Appeals upheld the statute by a 5-4 margin. The majority decision held that the law punishes conduct rather than speech, despite construing the law also to prohibit “expressive speech” made with “the intent to engage in the legitimate communication of ideas.” Viewed as a regulation on conduct, the court declined to scrutinize the law for potential violations of the First Amendment, a cornerstone of U.S. democracy that guarantees the constitutional right to freedom of speech.

Challenging the Texas court’s majority decision, MFIA’s petition draws on decades of precedent to argue that the statute plainly implicates the First Amendment and must be subjected to judicial scrutiny. The clinic argues that the law fails, on its face, an overbreadth analysis used by the Supreme Court. Under the overbreadth doctrine, a law is unconstitutional if it regulates a substantial amount of protected expression, even if it also reaches some unprotected conduct.

In support of its overbreadth argument, MFIA’s petition cites several examples of protected speech that are a crime under the law. These include harmless activities such as parents repeatedly texting their children who are out late to annoy them until they come home or friends posting baby photos online to “embarrass” each other. More worryingly, the clinic notes, the law also renders illegal many forms of political and religious speech with the intent to alarm. Examples include political campaigns repeatedly emailing voters to urge them to vote or a priest repeatedly texting his congregants to tell them that God will punish them for sinning.

“Allowing such a broad law to stand would open a Pandora’s box of unreviewable First Amendment harms, including self-censorship and discriminatory enforcement against unpopular groups and speech,” MFIA’s petition argues. “Core First Amendment activity like political advocacy and religious preaching is now vulnerable to prosecution in Texas whenever it is done online. Whether or not the authorities often prosecute such speech, the chill is real.”

The petition was prepared by MFIA students Henry Ishitani ’23, Julia Peoples ’24, and Aren Torikian ’24.

“Free speech protects the health of our democracy,” Torikian said. “People should not have to be afraid of breaking the law every time they hit ‘send’ on an email, tweet, or post that is critical of their elected officials.”

The Media Freedom and Information Access Clinic (MFIA) is a law student clinic dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression by providing pro bono legal services, pursuing impact litigation and developing policy initiatives.