Tuesday, May 06, 2008

Texas Online Harassment Statute Held Unconstitutional

In 2005, Nikolai Ivanov Karenev was charged with using email to harass his wife, Elena.

He was, more precisely, charged with one count of harassment by means of an electronic communication. Karenev v. State, ___ S.W.3d ___, 2008 WL 902799 (Tex. App. 2008).

The specific language of the charge was “`sending harassing and/or threatening e-mail to Elena with the intent to harass, annoy, alarm, abuse, torment, or embarrass [her.]’” Karenev v. State, supra.

According to the appellate court’s opinion, Elena was Nikolai Karenev’s wife, who had filed for divorce in October of 2004. The email messages were sent in Bulgarian, which was apparently the native language of both Nikolai and Elena.

At trial, the translation of the emails relied on by the prosecution was challenged by the defense, but that is not the issue that concerns us.
Nikolai was convicted of sending harassing and/or threatening emails to Elena with the intent noted above, i.e., “to harass, annoy, alarm, abuse, torment or embarrass” her. The quoted language, and the charge, came from a Texas harassment statute: Section 42.07(a)(7) of the Texas Penal Code, which reads as follows:
(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he: . . . (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.
A jury convicted Nikolai of violating the statute and he appealed, arguing that this portion of the Texas harassment statute was unconstitutional. Karenev v. State, supra. He specifically argued that the statute was unconstitutional because it was void for vagueness. In an earlier decision, another Texas Court of Appeals described the issues such a challenge raises:
It is well-established that criminal laws must be sufficiently clear in at least three respects. First, a person of ordinary intelligence must be given a reasonable opportunity to know what is prohibited. Second, the law must establish determinate guidelines for law enforcement. Finally, where First Amendment freedoms are implicated, the law must be sufficiently definite to avoid chilling protected expression. `When a statute is capable of reaching First Amendment freedoms, the doctrine of vagueness ‘demands a greater degree of specificity than in other contexts.’ Greater specificity is required to preserve adequately the right of free expression because `[u]ncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.’ Moreover, when a vagueness challenge involves First Amendment considerations, a criminal law may be held facially invalid even though it may not be unconstitutional as applied to the defendant's conduct.
Long v. State, 931 S.W.2d 286 (Texas Court of Criminal Appeals 1996).

In ruling on Nikolai’s challenge, the Karenev court cited a federal decision issued by the Fifth Circuit Court of Appeals: Kramer v. Price, 712 F.2d 174 (5th Cir. 1983). In the Kramer case, the court held that the “words `annoy’ and `alarm’ were inherently vague”, an issue many have raised in regard to statutes like this. I have often used harassment statutes that are predicated on “annoying” someone in my classes, asking the students to tell me when someone crosses the line from simply being annoying (and we all know there are a lot of annoying people out there) to magically becoming criminally annoying so that they can be prosecuted for their conduct. We usually wind up agreeing that “annoy” is not an appropriate term upon which to predicate criminal liability.

I would also go along with the Kramer court ‘s holding that “alarm” suffers from pretty much the same problem, unless the statute includes terms to make it clear what “alarm” means and how it rises to the level at which criminal liability is appropriate.
A stalking statute might, for example, include language describing a course of action – like repeatedly following someone, showing up at their house at odd hours, repeatedly telephoning them, etc. – and couple that with the term “alarm.” There, "alarm" would probably not be void for vagueness because the context in which it is used would put a reasonable person on notice as to what they should avoid doing if they don’t want to be charged with stalking.

The Karenev court said pretty much the same thing about the statute under which Nikolai was charged:
If (a)(7)(A) is viewed in isolation, it appears to suffer the same flaws denounced by Kramer. The words `annoy’ and `alarm’ . . . are now joined by . . . `harass,’ `abuse,’ `torment,’ and `embarrass’ But, all these terms are joined with a disjunctive “or,” and thus do nothing to limit the vagueness originally generated by `annoy’ and `alarm.’ Moreover, the additional terms are themselves susceptible to uncertainties of meaning.
Karenev v. State, supra. In other words, you could be charged with and convicted for engaging in conduct that alarmed OR annoyed OR harassed OR abused OR torments OR embarrassed someone. That means, as I’ve told my students when we’ve discussed statutes like this, that a prosecutor could charge someone with violating the statute for simply “annoying” someone else, and that won’t work.

In 1971, the U.S. Supreme Court held that a Cincinnati ordinance that made it a crime for “three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by” was void for vagueness. Coates v. Cincinnati, 402 U.S. 611 (1971). The Supreme Court held that it was void for vagueness because it predicated criminal liability on an “unascertainable standard”:

Conduct that annoys some people does not annoy others. Thus, the ordinance is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.
Coates v. Cincinnati, supra.

The Texas court’s holding is interesting because a federal statute – 47 U.S. Code section 223(a)(1)(C) – makes it a crime to use a telecommunications device (email, for example) to “annoy, abuse, threaten or harass any person . . . who receives the communications”. The federal statute does add “threaten” to the mix, but it also uses “or” as the connector, so it may well suffer from the same defect as the statute the Texas court held unconstitutional.


Administrator said...

Hello, thanks for the thoughtful post. Question, in Texas, does one have to actually contact another individual in order to be found guilty of harassing them. And by contacting another, that is all inclusive, and more about whatever the item is, smoke, email, phone call, does that item or thing have to be sent to the other individual. Another way to ask this is, can someone be harassed by a website on the Internet. An example would be a blog and a member of the blog posting hateful messages about another individual day in and day out, but never sending anything to the individual he is writing about. I also basically understand the defamation possibility, but could an individual say he has been harassed if on his own navigates to a website and reads negative posts about himself by someone else? This may sound like a dumb question, but I'll try to explain if you are able to reply to this comment. Again, thanks for the post.

Susan Brenner said...

I don't know Texas law, so you'd have to check the language in Texas' harassment/stalking statute(s) to see precisely what they say.

But as this case illustrates, posting stuff on a website CAN constitute harassment, if it's directed at a specific person and otherwise meets the standard for harassment:

People v. Kochanowski, 186 Misc.2d 441, 719 N.Y.S.2d 461 (2000)
Supreme Court, Appellate Term, New York. Second Department.

Judgment of conviction for criminal contempt in the second degree unanimously reversed upon the law and information dismissed.

Judgment of conviction for aggravated harassment in the second degree unanimously affirmed, and matter remitted to the Justice Court of the Town of Poughkeepsie pursuant to CPL 460.50(5) for defendant to surrender himself to resume execution of his sentence.

The People's evidence at trial shows that in late November 1998, defendant approached a younger co-worker who was more familiar with computers and asked if they could create an anonymous web site. Defendant's stated purpose was to negatively depict complainant, a woman with whom he had shared a prior relationship. Defendant said that complainant was falsely accusing and harassing him, that she had had him arrested and that he just wanted to strike back at her. The co-worker, who would later testify for the People at trial, agreed to set up the site. Defendant furnished suggestive photographs of complainant which the co-worker put on the Internet while trying to leave no trail. During the creation of the web site, the two chatted on AOL through a real time chat program. The co-worker typed in express references to intimate body parts and attributed to complainant an infatuation with sex. At one or two points within the web page, defendant asked him to include statements that complainant would drive out to meet people and that they should contact her. Defendant supplied complainant's address and telephone numbers for the web page, so that she could be reached at home, where she lived with her parents and younger sisters, or at her place of employment. Defendant subsequently asked the co-worker to create another anonymous E-mail account so that they could read what people were saying about the web site. In addition, defendant mentioned making the web site to another witness who knew him and complainant.

The evidence also includes the testimony of complainant concerning her receipt of two calls at work in December 1998 and her reactions of crying and being frightened. She asked the first caller to send her the offensive material and she subsequently received copies of the three pages in the mail. The second caller gave her the address of the web site, and complainant, with the help of a friend's husband, obtained a print-out from a computer.

An investigator from the New York State Police testified that he ascertained that the author of the web page was using the AT & T account of a person with the same surname as defendant's co-worker. The account was created on November 27, 1998 and the photographs put up on the site on December 1. A change was made on December 8 but the investigator could not say what the change was. Another investigator testified to having interviewed defendant and the co-worker. When said investigator was at the co-worker's house, the co-worker brought the web site up for his viewing. At the police barracks, the co-worker telephoned defendant and, during their taped conversation, told him that it would only take a couple of seconds to delete the web site for him. Defendant replied, “Yeah, I don't care[;] I mean, it doesn't have any effect for me now ...”

The defense offered conflicting testimony which, however, did not persuade the jury.

Upon this appeal, the parties contend that a novel question is presented with regard to the applicability of the aggravated harassment provision to computer-initiated situations. Penal Law § 240.30(1) states:

“A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she:

1. Communicates, or causes a communication to be initiated by mechanical or electronic means or otherwise, with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm ...”

With regard to the above language, we are of the view that it is broad enough to hold that by use of a computer, defendant and his co-worker “cause[d] a communication to be initiated by mechanical or electronic means or otherwise” (Penal Law § 240.30[1] [emphasis added] ). The means by which communication to the victim was made was the telephone, a device plainly within the ambit of the statute . . . Inasmuch as defendant acted with the requisite intent and in a manner likely to cause annoyance or alarm, his commission of every element of the offense should be deemed proven.

Note might also be made that the instant offense did not merely involve, as in the case of People v. Dupont, 107 A.D.2d 247, 486 N.Y.S.2d 169, a distribution of materials. Defendant did not simply distribute his materials over the Internet but also directed people to complainant's home and place of employment. Communication was “directed to an unwilling listener in circumstances wherein ‘substantial privacy interests are being invaded in an essentially intolerable manner’ ” . . . Nor should defendant be exculpated because he, instead of placing the phone call to his victim himself, used others to do so. In People v. Johnson, 208 A.D.2d 1051, 1052, 617 N.Y.S.2d 577, . . . the court observed that aggravated harassment in the second degree was established by evidence showing that the defendant wrote a letter which he signed with the victim's name, that he sent it to a post office box in response to a personal ad in a newspaper, and that the victim received an unsolicited communication from the person who had placed the personal ad.

Administrator said...

Thanks admin. In Texas, the language is almost the same, at least as it relates to what I am after. But the example you cite, which is a very good one, but it expressly explains that it took "directing" something, whatever that thing was, to the individual in order to consider what happened as being harassing. Maybe they meant it was the catalyst or the item that at least met the minimum threshold of what's expected. To me, if nothing has ever been sent, either directly, and in my case even indirectly, to another individual,and they simply discover what is being posted about them on their own, sort of finding the needle in the hay stack, I don't think they can be harassed. They may be defamed, however.

Administrator said...

One more question, please ma'am. What does it mean when a statute is deemed unconstitutional? Is that to say that until a bill is introduced and passed that clears things up, someone charged with harassment can reference the provision as being too vague at the moment and check back later?

Susan Brenner said...

As to the first of your two comments above: agree it could be defamation & PROBABLE wouldn't be harassment (always depends on the facts).

Second comment: If a statute is ruled unconstitutional, it never was valid and never can be.

Anonymous said...

Karenev was reversed and remanded by the Texas Court of Criminal Appeals (the Supreme Criminal Court in Texas) a couple of months ago, thus, reversing the court of appeals' opinion that you talked about in your article.

The reason for the reversal had nothing to do with the underlying argument, but had to do with the way the argument was first raised and the fact that the defendant failed to make a proper objection to the trial court and preservation of error, or lack thereof.
However, the San Antonio Court of Appeals, in a similar case, also found the statute to be unconstitutional. See Scott v. State, http://www.4thcoa.courts.state.tx.us/opinions/Opinion.asp?OpinionID=22200

Anonymous said...

On Texas penal code 42.07, due to circumstances ending in a reversal, if they deemed it unconstitutional, under what terms could you prosecute successfully a case? If online posts made by the defendant happened for years straight, and was identified, would showing consistency, and intent along with identifying? Or does any of that matter, and would simply be ruled unconstitutional?