2016.032: Safe From Suit, But Not From Prosecution

…That night, someone sent an e-mail to Vietnamese groups alleging appellant was going to Vietnam to “bow down” to Ho Chi Minh and the Vietnamese Communists.

. . . . .

In 2014, appellant [Al Hoang] won the Republican primary for State Representative District 149. Nguyen continued to label appellant a Vietnamese Communist. In October of that year, Nguyen reported that appellant’s father committed suicide in 2007 because appellant was a Communist. Nguyen also stated that appellant made the bomb with which he was threatened in 2012 to gain attention.

From 2010 to the time suit was filed in October 2014, articles published in Thoi Bao called appellant “a Vietnamese Communist, an agent of Vietnamese Communist, or a spy of the Vietnamese Communist [sic].” These articles were also disseminated to Vietnamese groups and over the internet.

Appellees win: Appellant had failed to provide “clear and specific evidence that the
statements of which he complains were published with actual malice….”

While Hoang v. Nguyen was pending the same panel of the Fourteenth Court of Appeals — Justices Martha Hill Jamison, John Donovan, and Marc Brown — in State v. Stubbs upheld Section 33.07 of the Texas Penal Code in the face of an overbreadth challenge.

Section 33.07 forbids using someone’s name online without his consent with intent to harm him.

The appellees’ speech in Hoang v. Nguyen — articles about Mr. Hoang disseminated over the internet — used his name online without his consent with the intent to harm him.

So while Thoi Bao and Mr. Nguyen are protected by the Texas Citizens Participation Act from frivolous lawsuits such as the one by Mr. Hoang (who will be paying my fees), they risk felony prosecution under Section 33.07 whenever they write something unfavorable about Mr. Hoang (or anybody else). And under Section 33.07 neither the truth, lack of actual malice, nor opinion is a defense.

Even if they write what they know to be the truth, they may face felony prosecution. They will have to go to trial to make an as-applied challenge to the statute (it is unconstitutional as applied to them) and nobody but them is going to pay my fees when we win.

(Part of the court’s reasoning in Stubbs was that prosecutors haven’t used 33.07 to prosecute newsmen for criticizing public officials, but prosecutors’ noblesse oblige is not part of the overbreadth analysis. That the Harris County DA did not come to the aid of her Republican brother does not mean that future DAs will abstain as well.)

2 Comments

  1. “Nowhere does the statute state that if an actor’s online usage of someone else’s name or persona without her consent and with either the intent to harm, defraud, intimidate, or threaten any person to create a web page or post a message consists of praise instead of criticism, such actor would not be violating the law.”

    has got to be one of the more obtuse sentences I’ve read in awhile.

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