In Owens v. State, the Texas Court of Criminal Appeals issued a meaningful opinion that pushes back against the broad use of one portion of Texas’s harassment statute, specifically Penal Code §42.07(a)(7).
This case marks an important potential shift in how courts will evaluate harassment prosecutions, especially when electronic communications and the First Amendment intersect.
Background: The Statute and Prior Cases
Texas Penal Code §42.07(a)(7) criminalizes sending repeated electronic communications with intent to harass, annoy, alarm, abuse, torment, embarrass, or offend another person. Until recently, Texas prosecutors leaned heavily on two Court of Criminal Appeals decisions, Ex parte Barton and Ex parte Sanders, which upheld the harassment statute’s constitutionality on the grounds that it regulated conduct, not speech.
Those cases gave prosecutors wide latitude to bring harassment charges even when the communications contained expressive speech. In effect, the court said it didn’t matter what was said, only how often and why it was sent. But in Owens v. State, that narrative changed.
What Happened in Owens?
Kevin Owens (not the wrestler) was convicted of harassment for sending dozens of emails, texts, and social media messages to his former therapist over several months. These messages, sent to her professional accounts, not her personal ones, contained offensive language and allegations of abuse, exploitation, and misconduct. The therapist never responded, but she forwarded the messages to police and testified that the content made her feel harassed and afraid. Owens was convicted under the Harassment statute.
The trial court and appellate court upheld the conviction. But the Court of Criminal Appeals reversed, holding that Owens was punished for the content of his speech, not the mere act of sending messages. That distinction matters a lot.
The Court’s Reasoning: Content-Based Punishment
The Court found that the prosecution focused on what Owens said, not just that he said it repeatedly.
Importantly, both the complaining witness and the judge conceded that had the messages said something different like “good morning” instead of “you raped me” then no prosecution would have occurred.
Because the conviction hinged on message content, the Court ruled that strict scrutiny applied.
Under the First Amendment, content-based restrictions are presumptively unconstitutional unless narrowly tailored to serve a compelling state interest. The State failed to meet that burden.
Why This Matters for Future Harassment Cases
This decision doesn’t strike down §42.07 as unconstitutional on its face. But it doessend a clear warning: prosecutors cannot use the statute to punish offensive or upsetting speech just because it causes emotional discomfort, especially when sent to public or professional accounts. The ruling reaffirms a bedrock principle of the First Amendment: offensive speech is still protected speech. As the Court put it, “Protecting people from unwelcome communications is not, by itself, a compelling state interest.”
Alsbrooks Law: Protecting the Rights of the Accused
At Alsbrooks Law, we know how easily criminal charges like harassment or stalking can arise from emotionally charged disputes or misunderstood communications.
In a digital age, what someone says online, even if angry or inappropriate, should not automatically become a crime.
If you’re facing a harassment or free speech-related charge in Montgomery County, Conroe, or anywhere in Texas, we’re ready to protect your rights.