The Texas District and County Attorneys Association’s Weekly Case Summary this week is about Counterman. It says:
You should expect and prepare for First-Amendment challenges based on this decision in prosecutions involving several Texas statutes—including Harassment, Stalking (when based on Harassment), and Terroristic Threat—which are similar to the beleaguered Colorado Stalking statute at issue here in that they utilize only an objective standard for evaluating the threatening nature of a defendant’s statements. The offense of False Alarm or Report should not be impacted by this decision because it already requires that the defendant subjectively know that his report is false or baseless.
First, I think the author of the TDCAA summary is wrong about False Alarm or Report.
False Alarm or Report
(a)A person commits an offense if he knowingly initiates, communicates or circulates a report of a present, past, or future bombing, fire, offense, or other emergency that he knows is false or baseless and that would ordinarily:
(1) cause action by an official or volunteer agency organized to deal with emergencies;
(2) place a person in fear of imminent serious bodily injury; or
(3) prevent or interrupt the occupation of a building, room, place of assembly, place to which the public has access, or aircraft, automobile, or other mode of conveyance.
While true that the defendant must know that his report is false, that doesn’t address the Counterman objection. Counterman says that for a true threat to be unprotected the State must prove that the speaker intended that the statement be taken as a threat or be reckless about whether the statement would be taken as a threat.
Texas’s False Alarm or Report statute has no such requirement. A person can know that his report his false, and that report might ordinarily put someone in fear, and still be consciously disregarding the risk that his report might have put someone in fear. (I have some thoughts about False Alarm or Report, and “fire in a crowded theater,” which I intend to share another day. It’s complicated.)
Moreover, that statute is not a true-threat statute. For a threat to be a true threat, even before Counterman, it was not enough that it be words that put someone in fear.
'True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.
The False Alarm or Report statute forbids not only true threats, but also reports of past emergencies and of present and future emergencies not constituting acts of unlawful violence, which are—regardless of whether the speaker knew the speech would cause harm—not within the unprotected category true threats.
The TDCAA author is about 1/48th right about Harassment. Part of the statute might still be valid—
A person commits an offense if, with intent to … alarm … another, the person:
…
(2) threatens, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of the person’s family or household, or the person’s property;
That looks like an unprotected true threat—a serious (reasonably likely to alarm) expression of an intent to commit an act of unlawful violence to a particular individual (the person receiving the threat). But that’s only 1/48th of the statute. Aside from “to alarm,” the statute restricts speech with five other possible specific intents: to harass, annoy, abuse, torment, or embarrass.
A serious expression of an intent to commit an act of unlawful violence, without subjective recklessness (or intent to threaten), is not an unprotected true threat. The intent to harass, annoy, abuse, torment, or embarrass is not the same as the intent to threaten.
So five of the six intents do not support a “true threat” theory. And aside from the threats of subsection (a)(2), section 42.07 forbids seven other kinds of speech:
(1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene;
…
(3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury;
(4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another;
(5) makes a telephone call and intentionally fails to hang up or disengage the connection;
(6) knowingly permits a telephone under the person’s control to be used by another to commit an offense under this section;
(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; or
(8) publishes on an Internet website, including a social media platform, repeated electronic communications in a manner reasonably likely to cause emotional distress, abuse, or torment to another person, unless the communications are made in connection with a matter of public concern.
So seven of the eight forbidden acts do not support a true-threats theory.
Most importantly, though …