Jasper Robin Chen v. Texas

A Texas statute criminalizes sending repeated electronic communications with the intent and likely result of “harassing, annoying, alarming, abusing, tormenting, embarrassing or offending” another. Because the law would be violated by the repeated sending of communications that contain no expressive content, like a blank email, the Texas Court of Criminal Appeals concluded that it “proscribes non-speech conduct” and does not implicate the First Amendment, even though the law would in most cases be violated by the repeated sending of expressive communications. The court thus rejected Petitioner’s facial overbreadth challenges to the criminal statute. The questions presented are:

1. Is a law that criminalizes expressive speech immunized from any First Amendment scrutiny if it also criminalizes non-expressive conduct?

2. Is a law that punishes the repeated sending of electronic communications with intent and likely result to “harass, annoy, alarm, abuse, torment, embarrass, or offend” another unconstitutionally overbroad?