2016.007: Why Online Impersonation Matters

This week a district court (felony) judge in Waco held Section 33.07 of the Texas Penal Code unconstitutional:

Sec. 33.07. ONLINE IMPERSONATION. (a) 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.

(b) 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.

(c) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) is a Class A misdemeanor, except that the offense is a felony of the third degree if the actor commits the offense with the intent to solicit a response by emergency personnel.

(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.

(e) It is a defense to prosecution under this section that the actor is any of the following entities or that the actor’s conduct consisted solely of action taken as an employee of any of the following entities:

(1) a commercial social networking site;

(2) an Internet service provider;

(3) an interactive computer service, as defined by 47 U.S.C. Section 230;

(4) a telecommunications provider, as defined by Section 51.002, Utilities Code; or

(5) a video service provider or cable service provider, as defined by Section 66.002, Utilities Code.

(f) In this section:

(1) “Commercial social networking site” means 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. The term does not include an electronic mail program or a message board program.

(2) “Identifying information” has the meaning assigned by Section 32.51.

At the moment the judge was signing the order (PDF—read it; p2¶1 is #Texas), I was arguing the unconstitutionality of Section 33.07 before the Fourteenth Court of Appeals in Houston. In that case, too, the trial court had held the statute unconstitutional, so the state was appealing and I represented the appellee.

“Why,” you might ask, “should I care whether it’s a felony to use someone’s name without his consent online to harm him?”

Excellent question.

The State’s argument is that the statute forbids impersonation. But “using the name” of another is not impersonating him. When I speak or write your name, I use your name. And “harm” is unlimited in scope—any disadvantage. So if I write your name online without your consent with the intent of harming you by embarrassing you, or offending you, or hurting your feelings, or depriving you of votes in the next election, I have committed a felony.

Blog post questioning Katheryn Harris’s journalistic ethics? Felony.

Campaign website criticizing an opponent? Felony.

Newspaper article revealing a public figure’s dishonesty? Felony.

Virtually everything on the internet is  covered by

(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.

Virtually all critical speech is “with the intent to harm.”

So Section 33.07 forbids virtually all online criticism. Texas claims venue and jurisdiction over people all over the world. And that is why you should care.

21 Comments

  1. If the statute was limited to genuine impersonation (i.e., posing as another, for the purpose of harming that person), would the gov be able to credibly claim that the attire is aimed at conduct and not speech?

    IOW, is the statute after something that it can never reach, or is it just far too broad now?

    1. Speech includes expressive conduct, and “posing as another” is surely expressive conduct. So the government could forbid posing as another with the intent to defraud, but for a law forbidding “posing as another with the intent to harm” to be constitutional, the courts would have to recognize another category of historically unprotected speech.

      1. I need some help will you please help me. I been with someone who doesn’t want me. That’s OK but I don’t want to be in jail and all constantly worried about this. I am trying to be a better person. I’ve come a long way but still have a long ways to go. Idk what to do please help me know how to put this behind me.. Thanks

  2. For what it is worth, I spoke out against this law when it was first proposed to the Legislature in Austin in front of the Senate Criminal justice Committee. I told them that it was a joke.

  3. I have been following your blog post regarding Texas Statue 33.07 and your noble efforts to have it overturned for being unconstitutional. I am interested in how soon the Appeals Court will rule on the case you are litigating on before the Court. If the Appeals Court rules it is indeed unconstitutional I imagine the State will appeal the case to the Texas Supreme Court. If so, I am curious how long that process may take before Texas Statue 33.07 could possibly be found to be unconstitutional. I am interested because a family member is presently on a ten year Deferred Adjudication probation for unwittingly posting a silly temporary prank post to embarrass someone else. I am hoping that if and when the law is ruled to be unconstitutional he will be able to have the charges dismissed and be out from under his probation obligations.

    1. Sorry for the slow response. When the Court of Criminal Appeals holds 33.07 unconstitutional, everyone who had been convicted or placed on deferred-adjudication probation for it will be entitled to undo their charges.

      1. Have there been any more developments in your efforts, sir? I was charged with online impersonation for a joke that I played on my brother (signing him up for subscriptions to several gay magazines). Months later he decided to press charges after he became angry about an unrelated matter. I am 41, never had so much as a traffic ticket, and now I have been charged with a felony. I never intended to harm, hurt, or defraud him of course — it was a joke. A bad one, admittedly. Definitely seems like unconstitutional law as broadly as it was written, though.

      2. The Court of Criminal Appeals yesterday refused all but one of my pending petitions for discretionary review. So we’re going to need to get more cases in the pipeline, and yours sounds like an excellent test case. Please have your lawyer call me.

  4. Hmmm, interesting. I saw a gif titled “How to play America in Risk” where a young woman is playing Risk with, it appears to be her parents and brother. She has herself wrapped up in the American Flag and begins smashing the armies on the game board with a giant rubber penis. It’s totally hilarious. So, impersonating America with a giant penis…..Felony?

  5. The constitutionality of New York’s version of the statute has been oddly upheld on the grounds that causing “damage to reputations” is a form of harm not protected by the First Amendment (more precisely, the intent to cause such harm is not protected). The good Texas judges seem to be following the logic of the strong dissenting opinion in that case. See the documentation at:

    http://raphaelgolbtrial.wordpress.com/

      1. Right. If I could revise my comment (one of the problems with online speech: the indelible casual misstatement…) I would say “the same logic as” the dissent in Golb.

      2. Yes. Logic is like that.

        (Unfortunately, so is illogic, which is why we get so many Texas First Amendment opinions regurgitating “conduct and not speech.”)

  6. I’m am currently being charged with Online Impersonation. My lawyer is going to try and get it dismissed. He also said they have courts here that can possibly rule this unconstitutional. Is this true?

      1. Trial-court cases in Tyler County (which will go to Beaumont on appeal) and Collin County (which will go to Dallas). Appeals pending in Waco and Houston. Waco has been sitting on it for eight months. Houston and Dallas have rejected my argument. PDR is due 5/22 on one of the Houston cases.

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