## I N THE COURT OF CRIMINAL APPEALS OF TEX AS

NO. PD-0469-19

EX PARTE NATHAN SANDERS, Appellant

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE SEVENTH COURT OF APPEALS

L UBBOCK COUNTY

W A L K E R 

### , J., delivered the opinion of the Court, in w hich H E R V E Y 

### , R I C H A R D S O N 

### , Y E A R Y 

### , and N E W E L L 

### , JJ., joined. Y E A R Y 

### , J., filed a concurring opinion. K E L L E R 

### , P.J., filed a dissenting opinion, in w h ich K E E L 

### , J., joined. S L A U G H T E R 

### and M C 

### C L U R E 

### , JJ., dissented.
O P I N I O N

I n Scott v. State , w e h e l d t h at § 42.07(a)(4) of the Penal Code, the telephone harassment statute, does not implicate the f reedom of speech protections of the F irst Amendment o f the United
States Constitution because it prohibits non-speech conduct. 322 S.W

. 3d 662, 669–70 (Tex

. Crim. App. 2 010), disavowed on o ther g rounds by W

ilson v. State , 4 48 S.W .3d 418, 423 (Tex

. Crim. App. 2014). I n the case before u s today , we clarify and reaffirm our holding in S cott

. F ollowing Scott ’s precedent, we hold that § 42.07(a)(7) of the Penal Code, the electronic harassment statute, also fails2

to implic at e t h e F irst Amendment’s freedom of speech protections because it too p r ohibits nonspeech conduct. W e affirm the judg ment o f the court of ap peals upholding § 42.07(a)(7) ag ainst Appellant’s F irst Amendment challeng e. I — Background Nathan Sanders, Appellant, was charg e d w ith violat i n g P enal Code § 42.07(a)(7), the electronic harassment statute, which provides: (a) A pe r s o n commits a n offense if, with intent to harass, annoy , alarm, abuse, torment, or embarrass another, the person: (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy , alarm, abuse, torment, embarrass, or offend another.
Act o f May 24, 1973, 63d L eg . , R.S., ch. 399, § 1, sec. 42.07, 19 7 3 T e x . G e n . L a w s 883, 956–57 (amended 2013) 1 (current version a t T E X

. P E N A L C O D E Ann. § 42.07(a)(7)). 2 Appellant filed a pretrial application for ha b e a s corpus relief on the basis that the statute was un constitutionally overbroad. The trial court denied relief, and the court of appeals affirmed. Ex parte Sanders , No. 07- 18-00335-CR, 2 019 W L 1576076, at *1 (Tex

. App

. — A m a ri llo Apr. 8, 2019) (mem. op., not

1 Appellant’s case is g overned by the 2013 vers i on o f the electronic harassment statute. According ly , while we will reference the statute with its current citation, this opinion refers to the 2013 version.

2 “El ec t r onic communication” means a transfer of sig ns, sig n als, writing , imag e s, sounds, data, or intellig e nce of any n a t u r e transmitted in whole or in p ar t b y a wire, radio, electromagn etic, photoelectronic, or photo-optical sy stem. The term includes: (A) a communication initiated by electronic mail, instant messag e, network call, or facsimile machine; and (B ) a communication made to a pag er. T E X

. P E N A L C O D E Ann. § 42.07(b)(1).3

desig nated for publication). T h e court of appeals determined that, for F irst Amendment purposes, § 42.07(a)(7) was the same as § 42.07(a)(4) which we upheld ag ainst a similar F irst Amendment challeng e in Scott

. Id. at *2–3. T he appellate court concluded that Scott w as controlling and rejected Appellant’s F irst Amendment challeng e. Id. at *3–4.
W e g ranted Appellant’s petition for discretionary review which argues that § 42.0 7 (a)(7) violates the F irst Amendment and that Scott should be overruled. 3 II — Appellant’s P re-Trial Writ
B e fore w e a d dress the substance of Appellant’s challeng e, we beg in with the State’s thresh o l d argument that Appellant’s g round for review is n ot p roperly b efore us. The State points
out that Appellant did not raise Scott before the trial c ourt in hi s p r e - t r i a l a pplication f

or writ of habeas corpus. T he State also faults Appellant for f a i l i n g to make a proper F irst Amendment overbreadth argument in his p re-trial application. As the State sees it, Appellant’s g round for review is not adequately

presented, and any opinion on the constitutionality of § 42.07(a)(7) or reg arding
Scott would be advisory

. I t is well-established that a decision o f the trial c ourt may be affirmed if it is correct on any applicable theory of law—even if that theory was not presented to the trial c ourt. Romero v. State , 800 S.W .2d 539, 5 43 (Tex

. Crim. App. 1990); P e nry v. State , 903 S.W .2d 715, 750 n.34 (Tex

. Crim. App. 1995). I t is also well-established that “[ i] n our discretionary revi e w c ap a c i t y we review

3 Appellant’s g round for review specifically states: Tex as P e n a l Code section 42.07(a)(7) is a content-based restriction that restricts a real and substantial amount of speech as protected b y the F irst Amendment; speech which invades privacy interests o f t h e listener has n ever been held by the United States Supreme Court to be a categ ory of unprotected speech.4

‘decisions’ of the c ourts of appeals.” Stringer v. State , 2 41 S.W .3d 52, 59 (Tex

. Crim. App. 2007) (quoting Lee v. State , 791 S.W .2d 141, 1 4 2 ( T ex . Crim. App. 1990)); T E X

. R. A P P

. P. 66.1. Thus, it is not dispositive that a party may not have preserved an issue in the trial c ourt where the court of appeals properly addressed the issue, and we g ranted discretionary review of it. Gallups v. State , 151
S.W

. 3d 196, 199 n.3 (Tex . Crim. App. 2004). The court of appeals affirmed the trial court, finding that § 42.07(a)(7) is constitutional based

on Scott

. Appellant challeng es the court of appeals’s decision and its underly ing basis in S

cott

. Scott

was properly addressed by the c ourt of appeals. S cott ’s holding was relevant to § 42.07(a)(7), several other c ourts of appeals that considered the c onstitutionality of § 42.07(a)(7) relied on Scott , and both parties arg ued the applicability of Scott in their r e spective appellate briefs. According ly , Appellant’s
g round f or review is properly before us, reg ardless of whether A p p e l l a n t ’ s pre-trial a

pplication raised
Scott or presented an adequate F irst Amendment overbreadth arg ument.
III — Scott v. State The court of appeals, following the lead of several other appellate c ourts, 4 u p h e l d § 42.07(a)(7) by r e l y i n g u p on S c o tt v. State

. I n Scott , the d efendant argued that § 42.07(a)(4), the telephone harassment statute, is unconstitutionally “ vag ue and overbroad” in violation of the F irst Amendment. Scott , 322 S.W .3d at 665. This statute provided: (a) A person c o mmits an offense if, with intent to har a s s , annoy , alarm, abuse, torment, or embarrass another, he:

4 Lebo v. State , 4 7 4 S.W .3d 402, 408 (Tex

. App.—San Antonio 2 015, p et. ref’d); Ex parte Ogle , No. 03-18-00207-CR, 2018 W L 3637385, at * 7 (Tex

. App.—Austin Aug

. 1, 2018, pet. ref’d) (mem. op., not desig nated for publication); Ex p a r t e Reece , No. 11-16-00196-CR, 2016 W L 6998930, at *3 ( Tex

. App.—Eastland Nov. 30, 2016, pet. ref’d) ( m e m . o p . , not desig nated f or publication); B lanchard v. State , No. 03-16-00014-CR, 2 016 W L 3144142, at * 3

– 4 ( T e x . App.—Austin J une 2, 2016, pet. ref’d) (mem. op., not desig n ated for publication).5

(4) causes the teleph o n e of another to ring repeatedly or makes repeated telephone communications anony mously o r in a manner r easonably likely to harass, annoy , alarm, abuse, torment, embarrass, or offend another[ .]
Act o f May 2 4 , 1 9 7 3 , 6 3 d L e g ., R.S., ch. 399, § 1, sec. 42.07, 1973 Tex

. Gen. L aws 883, 956–57 (amended 2001) (current version at T E X

. P E N AL C O D E Ann. § 42.07(a)(4)). W e concluded that the
2001 version of § 42.07(a)( 4 ) is n ot susceptible to being considered communicative conduct protected by the F irst Amendment because the statute criminaliz e d h arassing conduct that, althoug h it may include spoken words, was essentially noncommunicative. Scott , 3 22 S.W

. 3d at 669–70. 5
F urthermore, we determined that “persons whose conduct v iolates § 42.07(a)(4) will not have an intent to eng ag e in the leg itimate communication of ideas, opinions, or information; they will have only the intent to inflict emotional distress for its own sake.” Id. at 670. W e held that § 42.07(a)(4) did not i m p l i ca t e the F irst Amendment, and, according ly , Scott f ailed to show it was unconstitutionally

vag ue on its face. Id. at 669, 670–71.
A d d i t i o n ally , we n oted that while the F irst Amendment “g enerally protects the fre e communication and r eceipt o f ideas, opinions, and information,” the “State may lawfully proscribe communicative conduct ( i.e., the communication of ideas, opinions, and information) that invades the substantial privacy interests o f another in a n esse n t i a l ly intolerable manner.” Id. at 668–69. Therefore, if the conduct was, in fact, communicative:
To the ex tent that the statutory subsection is suscep t i b l e of application to communicative cond u c t , it is susceptible of such application o n ly when that communicative conduct is not protected by the F irst Amendment because, under the circumstances presented, that communi c a t i v e c o n d u c t i n v a d e s t

h e s ubstantial privacy interests of another (the victim) in an essentially intolerable manner.

5 I n 2013, § 42.07(a) was amended to chang e “he” to “the p erson”. Act of May 22, 2013, 83d L eg ., R.S., ch. 1278, § 1, 2013 Tex

. Gen. L a w s 3 2 3 1 , 3 231 ( current version at T E X

. P E N A L C O D E Ann. § 42.07(a)).6

Id. at 670. I n other words, communicative conduct—speech—that invades the substantial privacy interests of another i n a n e s sentially intolerable manner is outside the protection o f the F irst Amendment. This p articular discussion in Scott is the c rux of Appellant’s argument before us today

. IV — Scott

and § 42.07(a)(7)
I n c onsidering Appellant’s c ase below, the court of a ppeals determined that the tex t of the electronic h arassment statute, § 42.07(a)(7), is—for the purp o s e s o f First Amendment analy sis— identical to § 42.07(a)(4):
As others have pointed out

. . . all subsections of section 42.07(a) require the same specific intent, that “to harass, annoy , alarm, abuse, torment, or embarrass another.” And w hile subsection (a)(4) is violated when the actor “makes” repeated telephone communications and ( a)(7) is violated when the actor “sends ” repeated electronic communications, both subsections req u i r e f o r g u i lt that the repeated communications occur “in a manner reasonably likely to harass, ann o y , al arm, abuse, torment, embarrass, or offend another.” Sanders , 2 019 W L 1576076, at *3. Appellant also notes that althoug h Scott w as concerned with the telephone harassment statute instead of the electronic harassment statute, “the r a t i o n a l e i s t h e s a m e.” 6
W e ag ree with the court of appeals’s reliance on Scott

. F or F irst Amendment p u r p o s e s , Scott ’s holding t h a t § 4 2 .07(a)(4), the telephone harassment statute, does n ot implicate the F irst Amendment should apply e qually to § 42.07(a)(7), the electronic harassment statute. A c cording ly , if Scott is still g ood law, then § 42.07(a)(7) does not implicate the F irst Amendment.

V — Should Scott

be Overruled? Appellant argues that Scott should be reconsidered b ecause our opinion in that case “created,

ex nihilo , a new categ ory of unprotected speech: speech which, for purposes of inflicting emotional

6 Pet’r’s B r. 19.7

distress, invades substantial privacy interests.” 7 Appellant would have us overrule Scott and, in the absence of Scott , hold that § 42.07(a)(7) is unconstitutional.
“W e ordinarily observe the doctrine of stare decis i s ‘ t o promote judicial efficiency and consistency , encourag e reliance on judicial decisions, and contribute to the integ rity of the judicial process.’” Garcia v. State , 614 S.W

. 3d 749, 754 (Tex

. Crim. App. 2 019) ( q uoting Paulson v. State , 28 S.W .3d 570, 571 (Tex

. C r i m . App. 2000)). According ly , we “ should not frivolously overrule established precedent.” Ex parte Thomas , 623 S.W

. 3d 370, 3 8 1 (Tex

. Crim. App. 2 021). However,

“ stare decisis is not a

n inex orable command.” Id. “W h ile there is a strong presumption in favor of established law,” we may reconsider our p recedent “when, for instance, the orig inal rule or decision

was flawed f

r o m the outset, produces inconsistent, unjust, or unanticipated r esults or places
unnecessary b urdens on the sy stem.” Id. I n other words, “we are not constrained to follow precedent that is wrong ly decided or unworkable.” Id. at 382. A dhering to such precedent does not further stare decisis ’s g oals of promoting judicial efficiency a nd c onsistency , encourag ing reliance u pon judicial decisions, or contributing to the integ rity of the judicial process. Id. at 381–82. Thus, while “precedent warrants ‘ deep respect a s embody ing t h e c o n sidered views of those who have come befo r e ’

. . . ‘ stare d

ecisis [ is n ot] supposed to b e the art o f methodically ig noring what every one knows to be true.’” I

d. at 382 (quoting Ramos v. Louisiana , 140 S.Ct. 1390, 1404–05 (2020)).

VI — The Core Holding of Scott Appellant argues that Scott should b e overruled because: ( 1) in S tevens , the Supreme Court

7 Pet’r’s B r. 19.8

emphasiz ed that courts are not free to declare categ ories of unprotected speech; 8 (2) in Alvarez , the
S u p r e m e C o u rt listed the categ ories of unprotected speech, w hich did n ot include intentional harassment; 9 and (3) in Scott , we r elied upon dicta to declare a categ ory of speech o u t s ide the protection of the F irst Amendment.
As discussed above, in Scott w e noted t h a t “[ t] h e State may lawfully proscribe communicative conduct ( i.e., the communication of ideas, opinions, and information) that invades the substantial privacy interests of another in an e ssentially intolerable manner.” Scott , 322 S.W .3d
at 668–69 (citing Cohen v. Ca l i f o r n i a , 4 0 3 U.S. 15, 2 1 (1971)). 1 0 A nd if the conduct was, in fact,

8 Appellant points to th e fo l lowing admonition in Stevens : “Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to de cl a r e new categ ories of speech outside the scope of the F irst Amendment.” U nited Stat e s v. Stevens , 559 U.S. 460, 472 (2010) (referring to New Y ork v
. Fe r b e r , 4 5 8 U .S. 747, 764 ( 1982) (holding child pornog raphy outside the protection of the F irst Amendment)); see also United States v. Alvarez , 567 U.S. 709, 722 (2012) (“Althoug h the F irst A mendment stands a g ainst any ‘freewheeling authority to declare new categ ories of speech outside the scope of the F irst Amendment,’. . . .”) (quoting Stevens , 559 U.S. at 472)).

9 I n Alvarez , the Supreme Court listed historical categ ories of speech that a re o u t s i de the protection of the F irst Amendment: content-based restrictions on speech h ave b e en permitted, as a g e neral matter, only when confined to the few “ ‘historic and tradition a l c a t egories [ of ex p r ession] long familiar to the bar.’”

. . . A mong these categ ories are advocacy intended, and likely , to incite imminent lawless action

. . . o bscenity

. . . d e f amation

. . . speech integ ral to criminal conduct

. . . so-called “fig hting words,”

. . . child pornog raphy

. . . fraud

. . . t r u e t h re ats

. . . and speech presenting some g rave and imminent threat the g overnment has the power t o p r e v e nt

. . . althoug h a restriction un der the last categ o r y is most difficult to sustain

. . . . These categ o ries have a h i storical foundation in the Court’s free speech t ra d ition. The vast realm of free speech a nd thoug ht alway s p r otected in our tradition can still thrive, and e ven be furthered, by adherence to those categ o ries and rules. Alvarez , 567 U.S. at 717–18.

1 0 Appellant criticiz e s our citation to Cohen as reliance on dicta.9

communicative:
T o t h e ex tent that the statutory subsection is susceptible of application to communicative conduct, it is susceptible of such application only w h e n that communicative conduct is not protected by the F irst Amendment because, under the c i r c u m s t a n c e s p r e s e n t e d, that communicative conduct invades the substantial pri v a c y interests of another (the victim) in an essentially intolerable manner. Id. at 670. Appellant takes these state m e n t s f r o m Scott to be our holding , and he contends that w e improperly created a c ateg ory of speech outside the protection of the F irst Amendment. I n response, the State beg ins its brief noting t h a t “the core holding o f Scott ” w as that “ harassment

. . . covered by T ex a s Penal Code 42.07 is non-communicative conduct th at does not implicate the F irst Amendment.” 1 1 I n his Reply B rief, Appellant, ag ain quoting the a bove lang uag e in Scott , c omplains that “[ t] he State even g ets Scott ’ s holding wrong . ” 1 2
W e disag ree. A plain reading of Scott shows that we did not h old that the conduct p roscribed by § 42.07(a)(4) constituted speech categ orically outside the p rotection of the F irst Amendment. We held that it was not speech at all.
I n Scott , the State raised six g rounds for review, which we g ranted: (1) Are subsections (a)(4) and (a)(7) of Tex as Penal Code § 42.07 un constitutionally vag ue? (2) Do subsections (a)(4) and (a)(7) of Tex as Penal Code § 42.07 implicate the F irst Amendment to the United States Constitution? (3) Are the term “repeated” and the phrase “in a manner r easonably likely to harass, annoy , alarm, abuse, torment, embarrass, or offend another,” w hich are both contained within Tex as Penal Code § 42.07(a)(4) and (a)(7 ) , u n co nstitutionally

1 1 State’s B r. on the Merits 1.

1 2 Pet’r’s Reply

B r. 12–13.10

vag ue? (4) Did the State’s alleg at i o n that appellant left “voice mail messag es” implicate Tex as Penal Code § 42.07(a)(7) in t h i s c as e , and does that phrase necessarily fall within the definition of “electronic communication” found at Tex as Penal Code § 42.07(b)(1)? (5) I f some part of Tex as Penal Code § 42.07 is unconstitutionally vag u e, d id the Court o f Appeals err by dec laring it vag ue a nd acquitting appellant instead of apply ing a narrow construction to the statute to avoid the alleg ed vagueness? (6) Has the Court of Appeals improperly determined that b ecause subsections (a)(4) and (a)(7) of Tex as Penal Code § 42.07 alleg e dly implicate the F irst Amendment a nd mig ht curtail protected speech those subsections are vag u e, when the proper question should have been whether the subsections are overbroad?
Scott , 322 S.W .3d at 667–68, n.9. However, we only ad d r e ssed two o f those g rounds. Id. at 670 (“Given our disposition of the State’s second a nd fourth g rounds for review, w e need not reach the
State’s remaining g rounds f or review. W e dismiss them.”). W e first discussed the State’s fourth
g round for review, which arg ued that the court of appeals erred in addressing the constitutionality of § 42.07(a)(7), the electronic harassment s tatute. Id. at 668. The court of appeals had found that the information lang uag e, 1 3 alleg ing that the defendant had left abus i v e a n d h arassing voicemail
messag es, fell wi t h i n t h e statutory definition of electronic communication. Id. at 667. As a result,

1 3 The defendant in Scott was charg ed by two informations. The second information alleg ed that:

on or about the 12th Day of March, 2006, Sam u e l S c o t t , hereinafter referred to as defendant, with intent to harass, annoy , alarm, abuse, torment, and embarrass Yvette Scott, hereinafter r eferred to complainant, did make r epeated t e lephone communications to the complainant in a manner reasonably likely to harass, annoy , alarm, abuse, torment, embarrass and o ffend the complainant, to wit: the defendant called the complainant repeatedly b y teleph one while intox icated, late at nig ht, leaving abusive and harassing voice mail messag e s. Scott , 322 S.W

. 3d at 665.11

the court of appeals considered the constitutionality of both § 42.07(a)(4) and ( a)(7). See id. at 667.
W e ag reed with the State’s argument and sustained the g round because the information tracked the lang uag e of § 4 2

. 0 7 ( a) ( 4 ), not (a)(7), and because the statutory tex t o f § 42.07(a)(4) seemed to cover ordinary voice (and therefore voicemail), whereas the tex t of (a)(7) seemed to cover non-telephonic messag es such as e-mail and instant messag es. Id. at 668.
A f t e r s ustaining that g round, w e turned to the State’s second g round for review, which ar g u e d “that the court o f appeals erred in concluding that § 4 2.07(a)(4) implicated the f ree-speech g uarantee of the F irst Amendment.” Id. at 668. 1 4 I t was important to a d d r e s s “[ t] he question of whether the statutory subsection implicate[ d] the free-speech g uarantee . .

. because if the statutory subsection does implicate the free-speech g uarantee, then Scott, in making h is vag ueness challeng e , is relieved of the usual requirement o f showing that the statutory subsection was unduly vag ue as applied to his conduct.” Id. W e then p roceeded “[ t] o answer the q uestion of whether § 42.07(a)(4) implicates the free-speech g

uarantee of the F irst Amendment[ .] ” I d. After ex amining the tex t of the statute,

we conclude[ d] that it i s n o t s usceptible of application to communicative conduct that is protected by

the F irst Amendment. I n other words, the statutory subsection does not implicate the free-speech gua r antee of the F irst Amendment

. . . . [ W ] e believe that the conduct to which the statutory subsection is susceptible of application will be, in t h e usual case, essentially noncommunicative , even if the conduct includes spoken words. Id. at 669–70 (emphasis added). F inally , returning to the matter o f vag u eness, we ended our Scott opinion by stating : “

Because § 42.07(

a) ( 4) does not implicate the free-speech g uarantee of the First Amendment , Scott, in making his vag ueness challeng e to that statutory subsection, w as r equired to

1 4 W e note that the State’s second g roun d i n S c o t t also challeng ed the court of appeals’s c o n s t i tutionality ruling as to § 42.07(a)(7). Id. at 667–68 n.9. Due to o ur resolution of the St a t e ’ s fourth g round, the court of appeals’s decision reg a rding § 42.07(a)(7) was no long e r at issue.12

show that it was unduly

vag ue as applied to his own conduct.” Id. at 670–71 (emphasis added). The c ore holding of our opinion in Scot t i s t h a t t h e conduct regulated by § 4 2.07(a)(4) is noncommunicative and d oes not implicate the free-speech g uarantee of the F irst A mendment. The

core holding was not that § 42.07(a) ( 4 ) r eg ulates speech un protected b y the F irst Amendment. A
reg ulation involving non-protected speech nevertheless still implicates the F irst A m e n d m e n t a n d can still be subject to F irst A mendment scrutiny , as ex plained by the Supreme Court in R.A.V. v. City of St. Paul, Minnesota : W e have sometimes said that these c ateg ories o f ex pression [ obscenity , defamation, and fig h ting w ords] a

re “not within the area of constitutionally protected speech,”

.

. . or that the “protection of the F irst Amendment d oes not ex tend” to them

. . . Such statements must be taken in contex t, however, and are no more literally true than is the occasionally repeated shorthand characteriz ing obscenity “as n ot being speech at all[ .] ”

. . . W hat they mean is that these areas of speech c a n , c onsistently with the F irst Amendment, b e regulated because oftheir constituti o n a l l y p r o s c r i b a b le c ontent (obscenity , d efamation, etc. )

— n o t t h at they are categ ories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their disti n c tively proscribable content. Thus, the g overnment may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the g overnment. R.A.V. v. City of St. Paul, Minn. , 505 U.S. 377, 383–84 (1992). The Supreme Court elaborated:
Our cases surely d o not establish the proposition that the F irst Amendment imposes no obst a c l e w hatsoever to r eg ulation of particular instances of such proscribable ex p ression, so that the g overnment “may r eg ulate [ them] freely ,”

. . . That would mean that a city council could enact an ordinance prohibiting only those leg ally obscene works that contain criticism of the city g overnment or, indeed, that do not include endorsement of the city g overnment. Such a simplistic, all-or-nothing -at-all approach to F irst Amendment protection is at odds with common sense and with our jurisprudence as well. Id. at 384. T he Supreme Court proceeded to hold that the ordinance at issue in the case was facially invalid u nder the F irst Amendment, a lthoug h it regulated “fig hting words.” Id. at 381. Thus, simply because the ordinance at issue covered unprotected speech did n ot mean that the ordinance could not13

be subject to F ir s t A mendment scrutiny

. To the contrary , the Supreme Court applied F irst Amendment strict scrutiny because (its coverag e of “fig hting w ords” notwithstanding ) it p roscribed only those “fig hting words” that insult or provoke violence “on t h e b a s i s o f race, color, creed, relig ion or g ender.” Id. at 391. I t did not prohibit “fig hting words” in connection with other ideas, such as ex pressing hostility on the basis of political affiliation, union membership, or h o m o s e xuality

. Id. According ly , the ordinance imposed a special prohibition on speakers who ex pressed views on disfavored subjects. Id. T his went bey ond mere c ontent discrimination to actual v i ewpoint discrimination. Id.
As illustrated by R.A.V. , a statute that c overs speech in a categ ory traditionally outside the protection of the F irst Amendment nevertheless still implicates the F irst Amendment. I n the absence of speech, whether protected or unprotected, the F irst Amendment is not implicated. W h en we held in Scott that the conduct regulated b y § 42.07(a)(4) does not implicate the F irst Amendment because the conduct g overned by

§ 42.07(a)(4) is noncommunicative, we meant it. I t is not speech. Therefore, the discussion Appellant complains of, wherein we r eferred to the State’s ability
to restrict commu n i c a t i o n s that invade another’s privacy interests in a n essentially intolerable
manner, was—at the v ery least—a recog nition of the leg itimate g overnmental p urpose to which the
statute bears a rational r elationship. See Romer v. E v ans , 517 U.S. 620, 631 (1996) (stating standard of review for upholding statutes that neither burden a fundamental rig ht nor targ et a suspect class).
At the most, we posed an alternative theory to support our judg ment that the statute did not violate the F irst Am e n d m e n t

. Bu t e ven on that basis, it was not Scott ’s holding , or even an a lternative14

holding

. 1 5 A side f

rom the b rief mention of the theory , our disposition of the State’s second g round for r eview in Scott w a s b a s ed s q u arely on our conclusion that § 42.07(a)(4) regulated non-speech conduct, even if that conduct included the use o f words. W e did not c arve a categ ory of speech out f r o m t h e protections of the F irst Amendment. Appellant’s retort in his Reply B rief ha s i t backwards—the State g ets Scott ’ s holding rig ht. 1 6

VII — Scott

Was Not Wrongly Decided and Is Not Unw orkable Our clarification of Scott ’s holding —that the tel ephone h arassment statute, § 42.07(a)(4),
reg ulates non-speech conduct and therefore does not implicate the F irst Amendment—puts to bed Appellant’s specific reasons for overruling the case. B ut, as ex p lained above, a precedent may be overruled if it was wrong ly d ecided or has proven to be unworkable. Thomas , 623 S.W .3d at 382. Appellant is not the only one to sug g e st that Scott was wrong ly decided and should be reconsidered.
See Scott , 322 S.W .3d at 671 (Keller, P.J ., dissenting ); W ilson , 4 48 S.W .3d at 4 26–27 (Keller, P.J ., concurring ) (“[ W ] e oug ht to, when the issue is raised ag ain, re-evaluate our holding in [ Scott ] .”); Ex

1 5 W e have previously sug g ested that an alternative holding “could be v iewed as mere dicta .” Brooks v. State , 957 S.W .2d 30, 3 3 (Tex

. Crim. App. 1997). However, we have never ex plicitly held as much. See Duran v. S

tate , 492 S.W .3d 741, 754 n.1 (Tex

. Crim. App. 2016) (Yeary , J ., concurring and dissenting ) (“So f

ar a s I know, this Court has y et to f ashion a rule—one w ay or the other—with respect to the precedential value of alternative h olding s.”). O ur sister court, the Supreme Court of Tex as, has clearly stated that alternative holding s are binding

. Ross v. St. Luke’s Episcopal Hosp. , 462 S.W .3d 496, 502 (Tex

. 2015) (“[ A] lternati v e h o lding s . . . are . . . entitled to stare decisis treatment[ .] ”).
W h atever may b e said r eg a rding the precedential value of alternative holding s, what is clear in this case is that the theory stated in Scott

— that if it were communicative conduct, “that communicative conduct is not protected by the F irst Amendment because

. . . that c ommunicative conduct invades the substantial privacy interests o f another (the v ictim) in an essentially intolerable manner”—was not even an alternative holding

.

1 6 Contra Pet’r’s Reply

B r., at 12 (“The State even g ets Scott ’s holding wrong . ”).15

p a r t e R eece , 517 S.W .3d 108, 110 ( Tex

. Crim. App. 2017) (Keller, P.J ., dissenting to ref u s a l o f petition for discretionary review) (“The second r eason to g rant review is to re-ex amine Scott .”); Ogle

v. State , 563 S.W .3d 912, 912 ( Tex

. Crim. App. 2018) ( Keller, P.J ., dissenting to refusal of petition for discretionary review).
W e conclude that Scott was neither wrong ly decided nor unworkable, and we dec l i n e the
sug g estion to overrule it. W e find no f ault in our holding that § 42.07(a)(4), the telephone harassment statute, regulates non-speech conduct and therefore does not implicate the F irst Amendment. “The F irst Amendment literally forbid s t h e a b r i d g m e n t only of ‘speech[ .] ’ ” Texas v. Johnson , 491 U.S. 397, 404 (1989). However, the F irst Amendment’s “protection does n ot end a t the spoken

or written word.” Id. “[ T] he Constitution looks b ey o n d written or spoken words as mediums of

ex p ression.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual G rp. of B o s. , 515 U.S. 557, 569 (1995).
F or ex ample, “[ s] y

mbolism is a primitive but effective way of communicating ideas.” W

. Va. State Bd. of Educ. v. Barne t t e , 3 1 9 U

. S. 624, 632 (1943). According ly , “conduct may be ‘sufficiently imbued with elements of communication to fall within the scope of the F irst and Fo u r t e e n th Amendments[

. ] ’ ” Johnson , 4 91 U.S. at 404 (quoting S pence v. W

ashington , 418 U .S. 405, 409 (1974)). However, “[ i] t is possible to f ind some k ernel of ex pression in almost every activity a person undertakes—for ex ample, w alking down the street or meeting one’s friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the F irst Amendment.” City of Dallas v
. Stanglin , 490 U.S. 19, 25 (1989); see also Barnes v. Glen Theatre, Inc. , 501 U.S. 560, 576 ( 1991) (Scalia, J ., concurring ) (“[ V] irtually e very law restricts conduct, and virtually any prohibited conduct can be performed for an ex pressive purpose—if only ex pressive of the fact that16

the actor d isag r ees with the p rohibition.”). Thus, the Supreme Court has rejected “ the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person eng a g ing in the conduct intends thereby to ex p ress a n idea.” United States v. O’B r i e n , 3 9 1 U.S. 3 67, 376 (1968).
I nstead, F irs t A m endment protection ex tends “only to conduct that is inherently ex pressive.”
R u ms f e l d v
. Forum for Acad. & Institutional Rights, Inc. , 547 U.S. 4 7, 66 (2006) ( FAIR ). To determine “whether particular conduct possesses sufficient co m m u n i cative elements to bring the
F irst Amendment int o p l a y , ” the question to ask is “whether ‘an intent to c onvey a particulariz ed
messag e was present, and whether the likelihood was g r eat that the messag e would be understood by those who viewed it.’” Johnson , 491 U.S. at 4 04 ( quoting Spence , 418 U .S. at 410–11)). B ut “ a ‘particulariz ed messag e’” i s n o t required, or e lse the freedom of speech “would n ever reach the unquestionably shielded painting of J ackson Pollock, music of Arnold Schöenberg , or J abberwocky

verse o f L ewis Carroll.” Hurley , 515 U.S. at 569. The answer to the q u estion oftentimes depends on the circumstances surrounding the conduct. “[ T ] he c ontex t in which a sy mbol is used f

o r purposes of ex pression is important, for the contex t may g ive meaning to the s y m b o l

. ” Spence , 418 U.S. at 410.
W h ere the conduct does not have a sig n ificant ex pressive element, then “the F irst Amendment is not implicat e d b y the enforcement of a [ law] of g eneral application[ .] ” Arcara v. Cloud Books, Inc. , 478 U.S. 6 97, 706–07 (1986). Such laws, applicable to “nonex pressive conduct,” do not “ [ have] any

thing to do with the F irst Amendment.” See V irginia v. Hicks , 539 U.S. 113, 123 (2003) (holding that city policy a u thoriz ing p o l i ce to bar non-residents from low income housing development and thereafter arrest individuals violating barment order for trespassing did not violate
F irst Am e n d m e n t , even if trespasser soug ht to eng ag e in speech); Arcara , 478 U .S. at 706–0717

(finding that enforcement of statute author i z i n g c l o s u re of premises u sed for prostitution did not violate F irst A mendment as applied to bookstore; even thoug h bookstore sold books, such activity did n ot confer F irst Amendment protection to prostitution activity occurring on the premises). “Any

o t h e r c o nclusion would lead to the absurd r esult that any g overnment action that had s o m e conceivable speech-inhibiting consequences, such as the arrest of a newscaster for a traffic violation, would r equire analy sis u n d er t h e F irst Amendment.” Arcara , 478 U.S. a t 708 ( O ’Connor, J ., concurring ). Thus: [ N] onverbal ex pressive activity can be banned because of the action it entails, but not because of the ideas it ex p resses—so that burning a f lag in violation of an ordinance ag ainst outdoor fires could be punishable, whereas burning a flag in violation of an ordinance ag ainst dishonoring the flagis not.
R.A.V. , 505 U.S. at 385. Delineating a n d apply ing the above principles, the Supreme Court h as recog niz ed a wide
array of conduct a s ex pressive, including displ a y i n g a red flag “as a sig n, sy mbol, or emblem of opposition to org a

niz ed g overnment[ ;] ” 1 7 saluting and not saluting the flag ; 1 8 conducting a silent sitin; 1 9 b urning a draft card in demonstration ag ainst the war and the draft; 2 0 wearing black armbands
to o bject to the hostilities in Vietnam; 2 1 display ing the flag upside down with a “peace sy mbol” made

1 7 Stromberg v. California , 283 U.S. 359, 369 (1931).

1 8 Barnette , 319 U.S. at 632–34, 642.

1 9 Brown v. Louisiana , 383 U.S. 131, 141–42 (1966).

2 0 O’Brien , 391 U.S. at 376.

2 1 Tinker v. Des Moines Indep. Cmty. Sch. Dist. , 393 U.S. 503, 504–06 (1969).18

of b lack tape affix e d to t h e f l a g t o ex press that America stood for peace after the Cambodian invasion and the Kent State massacre; 2 2 camping in L afay ette Park a nd the National Mall to call attention to the plig ht of the homeless; 2 3 burning the flag during a p r otest rally ; 2 4 nude dancing ; 2 5 marching in a parade; 2 6 org aniz ing and choosing the participants in a parade; 2 7 and cross-burning

. 2 8
I n comparison, the Supreme Court found the conduct in FAIR was not inherently ex pressive and thus did not implicate the F irst Amendment. FAIR , 5 47 U .S. at 66. I n that c ase, an a ssociation of law schools and law school faculties, opposed to the military ’s policy on ho m o s e x uals, beg an restricting access to military recruiters for on-campus interview s . I d

. a t 51. I n response, Cong ress
enacte d t h e S o l o m o n A m e n d

m e n t w h i ch stripped f

ederal f unding from institutions that denied access
to military recruiters. I

d. The law schools and faculties soug ht a p reliminary injunction ag ainst the application of the Solomon A mendment, arguing that the law put them to the choice of ex ercising their F irst Amendment rig hts or ensuring federal funding for their universities. Id. at 52–53. Among other arguments, the Supreme Court “consider[ ed] whether the ex pressive nature of the conduct r eg ulated b y the statute bring s that conduct within the F irst Amendment’s protection.” Id. at 65 (emphasis in orig inal). The Supreme Court determined that:

2 2 Spence , 418 U.S. at 409–10.

2 3 See Clark v
. Cmty. for Creative Non-Violence , 468 U.S. 288, 293 (1984) (assuming , without deciding , that conduct was ex pressive).

2 4 Johnson , 491 U.S. at 406.

2 5 Barnes , 501 U.S. at 565–66.

2 6 Hurley , 515 U.S. at 569–70.

2 7 Id. at 574–75.

2 8 Virginia v. Black , 538 U.S. 343, 360–61 (2003).19

Unlike flag burning , the conduct r e gu l at e d by the Solomon Amendment is not inherently e x pressive.

. . . [ L ] aw schools “e x p r e s s ed” their disag reement with the military b y t r e a ting military recruiters differently from other recruiters. B ut these actions w ere e x pressive only because the law schools accompan ied their conduct with speech ex plaining it. F or ex ample, the point o f requiring military interviews to be c o n d u c t ed on the underg raduate campus is not “overwhelming ly apparent.”

. . . An observer who sees military recruiters interviewing away f rom the law school has no way of knowing whe t h er the law school is e x pressing its disapproval of the military , a ll the l a w s c h o o l ’s interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else. The ex p ress i v e c o m p o n ent of a law school’s actions is n ot created by the conduct itself but by the speech that accompanies it. The fact that such ex planatory speech is necessary is strong evidence that the conduct at issue here is not s o i n h e r ently ex p ressive that it warrants protection. . . . Id. at 66. Similarly , in Carrigan , t h e S u preme Court considered a recusal provision in a Nevada
g overnmental ethics law that requires public officials to r e cuse themselves from voting on, or advocating the passag e or failure of, a matter the official h as a personal interest in. Nev. Comm’n on Ethics v
. Carrigan , 564 U.S. 117, 119, 121 (2011). T h e Nevada Supreme Court determined that the law violated the F irst Amendment, finding that a leg islator’s vote is protected speech. Id. at 121. Reversing , the United States Supreme Court considered several arg uments—including the contention raised by

the concurrence “that leg islators often ‘use their votes to ex press deeply held and hig h ly unpopular views, often at g reat personal o r political peril.’” Id. at 126 (quoting id. at 133 (Alito, J ., concurring )). Invoking the reasoning of FAIR , the Supreme Court majority responded:
How do they ex press those d eeply held views, one wonders? Do ballot s contain a check-one-of-the- b o x es attachment that will b e display ed to the public, r eading something like “( ) I h ave a deeply held view a bout this; ( ) this is probably desirable; ( ) this is the least of the available evils; ( ) my personal view is the other way , but my constituents want this; ( ) my personal view is the other way , but my big contributors want this; ( ) I don’t have the slig htest idea what this leg islation does, but on my way in to vote the party Whip said vote ‘ay e’”? T here are, to be sure, instances where20

action convey s a sy

mbolic meaning

—such as the burning of a fl a g t o c o n v ey disag reement with a country ’s policies

. . . B ut the act of voting sy mboliz es nothing

. I t discloses , to be sure, that the leg islator w ishes (for w h a tever reason) that the proposition on the floor be adopted , j u st as a phy sical assault d iscloses that the attac k e r d i s l i k es the victim. B ut neither the one nor the other is an act of communication. Cf. [ FAIR , 547 U.S. at 66] (ex pressive value w as “not created by the conduct itself but by

the speech that accompanies it”). Id. at 126–27. Turning to the conduct proscribed by § 42.07(a)(4), is such conduct inherently ex pressive?
See FAIR , 547 U.S. at 66. I s an intent to c onvey a particulariz ed messag e present? See Johnson , 491
U.S. at 404. I s the likelihood g reat that the messag e would be understood by those w ho viewed it?
See id. B ecause Appellant’s challeng e to the statute c ame pre-trial, and there is no record evidence of conduct to ex amine for elements of ex pression, we return to the statute’s literal tex t: (a ) A p e rs o n commits a

n offense if, with intent to harass, annoy , alarm, abuse, torment, or embarrass another, the person: (4) causes the telephone o f another to ring r e p e a t e dly or makes repeated telephone communications anony

mously or in a manner reasonably likely to harass, annoy , alarm, abuse, torment, embarrass, or offend another;
T E X

. P E N A L C O D E Ann. § 42.07(a)(4); Boykin v
. State , 818 S.W

. 2d 782, 785 (Tex

. Crim. App. 1991) (“[ W ] e necessarily f

ocus our attention o n the literal tex t of the statute in q uestion [

. ] ”). The § 42.07(a)(4) offense has three g r avamen: causing the telephone of another to ring repeatedly (a result of conduct offense); making r epeated telephone communications anony mously (a nature of conduct offense); and making repeated telephone communications in a manner reasonably likely to harass,
annoy , alarm, abuse, torment, e mbarrass, or offend a nother ( a nature of conduct offense). See generally Price v. State , 4 57 S.W .3d 437, 441 (Tex

. Crim. App. 2015) ( discussing g ravamen of the offense).21

Causing a telephone to r ing repeatedly is not inherently e x pressive; ther e i s n o i ntent to
convey a particulariz e d messag e, nor is there any likelihood that an observer would understand a
messag e from the conduct. See FAIR , 547 U.S. at 66; Johnson , 491 U.S. at 404.
As for the “makes repeated telephone communica t i o n s a n o ny m o u s l y ” o f f e n s e , w e r e c o g niz ed in Scott that “the tex t [ of the statute] does not require that the actor use spoken words.” Scott , 322
S.W

. 3 d at 669. Repeated calls where the a nony mous c aller say s nothing at all, or where the calls contain indistinct noise, would constitute the making of “repeated telephone communications.” An observer would n o t co m p rehend any communicative messag e from those calls. See Johnson , 491
U.S. at 404.
F inally , reg arding the “makes repeated telephone communications in a manner reasonably likely to harass

. . . ” offense, t h e u se of harassing , annoying , alarming , a busive, tormenting , embarrassing , or offending words could easily show the calls were made in a harassing , annoying , alarming , abusive, tormenting , embarrassing , or offending manner. Ag ain, however, “the tex t [ of the statute] does not require that the actor use spoken words.” Scott , 32 2 S

. W

. 3 d at 669. Repeated telephone communications can b e made in a harassing , annoying , alarming , a b u s i v e, tormenting , embarrassing , or o ffending manner without any words used a t all. F o r ex ample, if the telephone calls

are consistently repeated o r made during particularly inconvenient hours, such calls could very well be made in the prohibited manner, reg ardless of the content o f those calls. And an observer, viewing such conduct, would not understand the calls to be portray ing a messag e. See Johnson , 491 U.S. at 404. The bare statutory conduct pr o h i b i t e d by § 42.07(a)(4) is d istinct from the ex pressive conduct
recog niz ed by the Supreme Court. I t does not involve sy mbols which c a

r r y special sy

mbolic meaning22

like the flag

. See, e.g. , Stromberg , 283 U.S. 359; Barnette , 319 U.S. 6 24 ; S p e n ce , 4 18 U.S. 405; Johnson , 491 U.S. 397. I t d o es not involve acts that communicate an idea in lig ht o f societal contex t such as conducting a sit-in during the midst of the Civil Rig hts Movement, burning a draft card as part of an anti-war protest during the Vietnam W ar, or taping a peace sig n to a n upside down flag in the aftermath of the Kent State massacre. See, e.g. , Brown , 3 83 U.S. 131; O’Brien , 391 U.S. 367; Spence , 4 18 U.S. 405. I t is not “closely akin to ‘pure speech’” like wearing a black armband to show solidarity with the anti-war movement. Tinker , 393 U.S. at 505–06. I t does not even o ccupy the outer limits o f the F irst Amendment’s protection where one would find nude dancing that communicates
a messag e of eroticism. Barnes , 501 U.S. at 565–66.
I nstead, statutory conduct c overed by § 42.07(a)(4) fails to ex press any ideas at all. L ike law schools requiring military r ecruiters to conduct their interviews on their underg raduate campus, or

a leg islator’s vote, an observer viewing a p erson repeatedly make telephone calls would n ot perceive
any e x pressive element by the calling alone. I s the caller try ing to a n n o y t h e person who he is calling ? Or is the caller sincerely try ing to reach the person, wholly intending to h ave a conversation? The same is true w hen the observer views the conduct from the receiving end. An observer would
not perceive any e x pressive messag e by witnessing a telephone ring repeatedly or by seeing a person receive repeated phone calls. There is no likelihood that those who view the bare statutory conduct of making repeated phone calls w ould u n d e r s t an d any ex pressive messag e from this conduct. See
J o h nson , 491 U.S. at 404. The only way for observers to k n ow that the caller means to ex p r e s s
any thing by these acts is for the c aller to ex p lain it to them; making repeated telephone calls is pure conduct that must be ex plained by separate speech. See FAIR , 547 U.S. at 66. Nevertheless, Appellant argues t h a t intentional harassment constitutes protected speech23

because the speaker who intends to harass h as a communicative intent. I n other words, the speaker’s intent to harass is an intent to communicate, a nd, if a speaker intends to communic a t e , his speech implicates the F irst Amendment. The Supreme Court has “rejected the view that ‘conduct can be labeled ‘ speech’ whenever the p erson eng ag ing in the conduct intends thereby to ex p ress a n idea.’” FAIR , 547 U.S. at 65–66 (quoting O’Brien , 391 U.S. a t 3 76). I nstead, F irst Amendment protection ex tends “ only to conduct that is inherently ex pressive.” Id. The Supreme Court’s rejection is common sense. I f the conduct i s n o t i n herently ex pressive, then an observer would not know that the conduct is intended to b e

ex p ressive reg ardless of the actor’s subjective intent.
F urthermore, even assuming that a person intending to harass, etc., by eng ag ing in conduct covered by § 42.07(a)(4) accompanies that conduct with messag es stating his intent to harass (“I
want to h arass y ou;” “I am g o ing to harass y ou;” or “This is me har a s s i n g y o u ” ) , t h at does not
convert the conduct itself into speech. To the contrary , it r emains non-speech conduct accompanied by ex p lanatory

speech. The Supreme Court cautioned that:
I f combining spee ch a n d conduct were enoug h to c reate ex p ressive conduct, a reg ulated party could alway s t r a n s f o r m c o n d u c t into “speech” simply by talking about it. F or instance, if an individual announces that he intends to ex press his disapproval of the I n ternal Revenue Service b y refusing to pay his income tax es, we would have to apply O’Brien to determine whether the Tax Code v iolates the F irst A mendment. Neither O’Brien nor its prog eny supports such a result.
FAIR , 547 U.S. at 66.
I t i s not difficult to imag ine scenarios similar to the tax protestor. F or ex ample, a s s u m e a
person driving his car on the hig hway intends to harass another driver. He drives his car a g g ressively , tailg ates the other driver, quickly passes and cuts off that driver, repeatedly “brake checks,” and, in24

the course of doing so, makes several rude g estures and y ells several epi t h e t s t h a t unmistakably

c o n v e y his feeling s. The statutes in the Transportation Code g overning driving do not become subject to the F irst A mendment simply because those d riving acts were done to ex press ang er a t the other driver. And, frankly , we need not e ven imag ine. W ould the g overnment’s power to punish the assassination of the President be subjected to modern F irst Amendment scrutiny simply because the assassin accomp an ied h is a c t with speech (“ sic semper tyrannis ”)? See John W ilkes Booth Shoots
A b r a h a m L i n c o l

n , H i s t o r y ( N o v . 1 3 , 2 0 0 9 ) , w

w w . h i s t o r y . c o m /t h i s - d a y - i n - h i s t o r

y / j ohn-wilkes-boo t

h

shoots-abraham-lincoln. W ould the g overnment’s power to punish the b o mbing and destruction of

a federal building , resulting in 168 deaths and the wounding of hundreds more, be subjected to F irst Amendment scrutiny simply because the bomber intended to ex press a messag e ag ainst the federal
g overnment due to their “sieg e of the B r anch Davidians in W a co”? United States v. McVeigh , 153
F .3d 1166, 1177–78 (10th Cir. 1998).
No one w ould doubt the g overnment’s power to assess tax es or prohibit reckless driving

. No

one would say the Fi rst Amendment stands to protect Presidential assassinations or allow for the deadliest act of domestic terrorism in American history

. A statute or regulation proscribing nonspeech c onduct does not suddenly become subject to F irst Amendment scrutiny becau s e the actor accompanies his non-speech conduct with speech.
I n sum, we find that Scott w as not w r o n gl y d ecided, and Scott is not unworkable. We therefore decline Appellant’s sug g estion that we overrule Scott , and we reaffirm o ur holding that on its face, § 42.07(a)(4), the telephone harassment statute, p roscribes non-speech conduct that does not implicate the protections of the F irst Amendment.25 VIII — § 42.07(a)(7) As for § 4 2 .07(a)(7), at issue in Appellant’s case, that statute and subsection (b)(1) provide: (a) A pers o n c o m m i t s a

n offense if, with intent to harass, annoy , alarm, abuse, torment, or embarrass another, the person: (7) sends repeated electronic c o m m u n ications in a manner reasonably likely to harass, annoy , alarm, abuse, torment, embarrass, or offend another. (b) In this section: (1) “Electronic communication” means a transfer of sig ns, sig nals, writing , imag es, sounds, data, or intellig ence of any nature transmitted in whole or in p a rt by a wire, radio, electromagn etic, photoelectronic, o r photo-optical sy stem. The term includes: (A) a communication initiated by electronic mail, instant messag e, network call, or facsimile machine; and (B ) a communication made to a pag er. T E X

. P E N A L C O D E Ann. § 42.07(a)(7), (b)(1). The g r avamen o f the § 4 2.07(a)(7) offens e i s t h e sending of repeated electronic communications in a manner reasonably likely to harass, annoy , alarm, abuse, torment, embarrass, or offend another (nature of conduct). See Price , 457 S.W .3d at 441. B ased u pon the definition of “electronic communication,” we find t h at this offense is like the § 42.07(a)(4) repeated telephone communication offense, and speech is not n ecessary for c o m m i ssion of the offense. “Electronic communication” consists o f a transfer of sig ns, sig n als, writing , imag es, sounds, data, or intellig ence of any nature. T E X

. P E N A L C O D E Ann. § 42.07(b)(1). To be sure, s o m e o f t h o s e items, such as a writing , an imag e, and a sound, evoke traditional categ ories of communication. B ut the statute does
not r equire the electronic communication to be a w riting , an imag e, or a sound. B y the literal tex t of the statute, the e lectronic communication that is sent could be in the form of “data

. . . of any nature.”26

Id. ; see also Boykin , 818 S.W .2d at 785. The bare fact that data of any nature is sent electronically does not mean that any thing has been ex pressed. The statute i s e q u a l l y violated by the repeated sending of communications containing ex pressive speech as it is by the repeated sending of communications co n t a i n i ng no speech at all. A p erson intending to harass another could violate the statute by sending several emails containing only the letter “ B” ( a r g u a b ly a “writing ”) or e-mails c ontaining nothing (some minimal level of “ data”). Or the person could violate the statute by sending computer code (“sig nals”

or “data”) that would be a readable sequence of machine lang uag e understood by a c omputer but entirely indecipherable and meaning less to humans. And there is no requireme n t that the data be actually usable. Entirely meaning less data understandable by neither man nor machine could just as well be sent, repeatedly , in a manner reasonably likely to harass, etc., wi t h the specific intent to harass, etc.
B u t has any

thing been inherently e x pressed by such an act? See FAIR , 547 U.S. at 66. We think not. There is no likelihood that an observer who views the bare conduct of sending repeated electronic communication w ould u n d e rs t a n d any e x pressive messag e f rom this conduct. See Johnson , 491 U .S. at 404. An o bserver may g lean, a t t h e most, that the sender w ants to send something to the receiver. The only way for an observer to know that the sender means to ex press
any thing b y these acts is f

o r t h e sender to ex plain it to them; the repeated sending of some sort of electronic communication is pure conduct that must be ex plained by separate speech. See FAIR , 547
U.S. at 66. According ly , the e lectronic haras s ment statute d oes n ot r eg u late e x pressive conduct.
I nstead, it focuses upon conduct that is not inherently ex pressive. I f there was a n inten t t o be

ex p ressi v e , the actor would have to provide separate speech accompany ing a nd ex p laining the27

conduct.
I n sum, we hold that on its face, § 42.07(a)(7), the electronic harassment statute, proscribes non-speech conduct that does n ot implicate the protections o f the F irst Am e n d m en t, althoug h elements of speech may

be employ ed to commit the offense.
VIII — Conclusion: Scott Applies
I n conclusion, in S

cott , we did not create a new categ ory of speech outside of the protection of the F irst Amendment. I nstead, we concluded that § 42.07(a)(4), the telephone harassment statute,
regu l a t e s n on-speech conduct and therefore does n o t implicate the F irst A mendment even thoug h words may be used in the commission of the offense. T h e same can be said for § 42.07(a)(7), the electronic harassment statute. O n its face, § 42.07(a)(7) d oes not implicate and does not violate the
F irst Amendment of the United States Constitution. W hether § 42.07(a)(4) or (a)(7) c ould implicate the F irst Amendment on a n as-applied basis, and, if so, whether such application is permissible under the appropriate standard of scrutiny are questions for another day

. 2 9 The judg ment of the court of appeals is affirmed.

Delivered: April 6, 2022 Publish

2 9 See O’Brien , 391 U.S. at 376–77 (providing test for regulations that on their face do not suppress free ex pression that nevertheless cause an incidental limitation on speech where speech and non-speech elements have been combined into the same course of conduct).