State v. Stubbs, 14-15-00510-CR

• Decision Date: 09 August 2016
• Docket Number: NO. 14-15-00510-CR,14-15-00510-CR
• Citation: 502 S.W.3d 218
• Parties: The State of Texas, Appellant v. Abigail Marie Stubbs, Appellee
• Court: Texas Court of Appeals

502 S.W.3d 218

The State of Texas, Appellant

v.Abigail Marie Stubbs, Appellee

NO. 14-15-00510-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed August 9, 2016

Discretionary Review Refused December 7, 2016

Rehearing and Rehearing En Banc Overruled September 27, 2016

Mark W. Bennett, Houston, TX, for Appellant.

Jessica Akins, Houston, TX, for Appellee.

Panel consists of Justices Jamison, Donovan, and Brown.

OPINION

Marc W. Brown, Justice

Abigail Stubbs was indicted for the felony offense of online impersonation under section 33.07(a) of the Texas Penal Code. See Tex. Penal Code § 33.07(a), (c) (West 2015). Stubbs filed a pretrial application for writ of habeas corpus in which she asserted that the online impersonation statute is unconstitutional. Stubbs argued that the statute violates the First Amendment because it is overbroad on its face. She also argued that the statute is void for vagueness and violates the Dormant Commerce Clause. Stubbs requested that the trial court dismiss her indictment. The trial court granted relief, declaring all of section 33.07 unconstitutional as written. The State appeals.

Because Stubbs was indicted only under subsection (a) of section 33.07, the trial court did not have jurisdiction to declare the entire statute unconstitutional. With regard to subsection (a), the statute prohibits conduct that is not constitutionally protected, but also implicates protected speech. However, we conclude that the restriction is not content based and therefore not subject to strict scrutiny. Because the statute does not reach a substantial amount of constitutionally protected speech in furthering the State's significant interest in proscribing criminal, nonconsensual, online use of someone else's name or persona, we reject Stubbs' overbreadth challenge. We also conclude that the statute is not unconstitutionally vague and does not violate the Dormant Commerce Clause. We therefore reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

Stubbs was indicted under section 33.07(a) of the Texas Penal Code :

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.

Id. § 33.07(a). Specifically, Stubbs was alleged to have on or about April 8, 2014, unlawfully, and with the intent to harm, defraud, intimidate, and threaten any person, used the persona of complainant A.H. to post one or more messages on and through an Internet website, namely, Craigslist.com, without obtaining the complainant's consent. See id. § 33.07(a)(2). An offense under subsection (a) is a felony of the third degree. Id. § 33.07(c).

Stubbs filed a pretrial application for writ of habeas corpus. Stubbs argued the statute is unconstitutionally overbroad on its face under the First Amendment because it is a content-based restriction that criminalizes a substantial amount of protected speech. Stubbs also argued that the statute is unconstitutionally vague and violates the Dormant Commerce Clause. See Ex parte Thompson , 442 S.W.3d 325, 333 (Tex.Crim.App.2014) (defendant may file pretrial application for writ of habeas corpus to raise facial challenge to constitutionality of statute that defines offense charged).¹ On May 13, 2015, the trial court signed an order on writ of habeas corpus, which granted Stubbs relief.

In this order, the trial court stated " Section 33.07 of the Texas Penal Code is unconstitutional as written" without any limitation. However, the parties agree that the class A misdemeanor offense in subsection (b) of section 33.07 is not at issue because Stubbs was charged under, and only could challenge the constitutionality of, subsection (a). See Tex. Penal Code § 33.07(b).² Therefore, the trial court did not have jurisdiction to declare all of section 33.07 unconstitutional, but rather only subsection (a). See Limon v. State , 947 S.W.2d 620, 625 (Tex.App.–Austin 1997, no writ) ; State v. Cannady , 913 S.W.2d 741, 745 (Tex.App.–Corpus Christi 1996), aff'd , 11 S.W.3d 205 (Tex.Crim.App.2000), cert. denied , 560 U.S. 920, 130 S.Ct. 3317, 176 L.Ed.2d 1215 (2010).³

On appeal, the State argues that the trial court erred in granting Stubbs' writ of habeas corpus quashing her indictment and in declaring section 33.07(a) unconstitutional based on: (1) overbreadth, (2) vagueness, and (3) the Dormant Commerce Clause.

II. ANALYSIS

Standard of review

Whether a statute is facially constitutional is a question of law that we review de novo. Ex Parte Lo , 424 S.W.3d 10, 14 (Tex.Crim.App.2013). We begin with the presumption that the statute is valid and that the Legislature has not acted unreasonably or arbitrarily. Id. at 14–15 ; Ex parte Flores , 483 S.W.3d 632, 638 (Tex.App.–Houston [14th Dist.] 2015, pet. ref'd) (citing Rodriguez v. State , 93 S.W.3d 60, 69 (Tex.Crim.App.2002) ). Ordinarily, the party challenging the statute carries the burden to establish the statute's unconstitutionality. Ex Parte Lo , 424 S.W.3d at 15.

The First Amendment—which prohibits laws "abridging the freedom of speech"—limits the government's power to regulate speech based on its substantive content. Ex parte Flores , 483 S.W.3d at 639 ; see U.S. Const. amend. I ; Reed v. Town of Gilbert, Ariz. , ––– U.S. ––––, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015). Content-based regulations are those that distinguish favored from disfavored speech based on the idea or message expressed. Ex parte Lo , 424 S.W.3d at 15 ; Ex parte Flores , 483 S.W.3d at 639. Content-based regulations operate to restrict particular viewpoints or public discussion of an entire topic or subject matter. See Reed , –––U.S. ––––, 135 S.Ct. at 2229–30. In these situations, the usual presumption of constitutionality is reversed; the content-based statute is presumed invalid, and the State bears the burden to rebut this presumption. Ex Parte Lo , 424 S.W.3d at 15 ; Ex parte Flores , 483 S.W.3d at 639.

A statute that suppresses, disadvantages, or imposes differential burdens upon speech because of its content is subject to the most exacting or strict scrutiny. Ex parte Lo , 424 S.W.3d at 15 (citing Turner Broad. Sys., Inc. v. F.C.C. , 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ). Such a regulation may be upheld only if it is necessary to serve a compelling state interest and employs the least speech-restrictive means to achieve its goal. Id. Content-neutral regulation of the time, place, and manner of speech, as well as regulation of speech that can be justified without reference to its content, receives intermediate scrutiny. Ex parte Flores , 483 S.W.3d at 639 (citing Turner Broad. Sys. , 512 U.S. at 642, 114 S.Ct. 2445, and Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ). Such a regulation is permissible if it promotes a significant governmental interest and does not burden substantially more speech than necessary to further that interest. Id. (citing McCullen v. Coakley , ––– U.S. ––––, 134 S.Ct. 2518, 2534–35, 189 L.Ed.2d 502 (2014), and Ex parte Thompson , 442 S.W.3d at 344 ).

Section 33.07(a) implicates protected speech.

As an initial matter, however, we consider the State's position that the trial court erred by presuming the statute invalid and by applying strict scrutiny because the online impersonation statute does not implicate the First Amendment. The State argues that the statute does not ban speech, but instead only "bans conduct, specifically, the ‘use’ of another's name or persona to ‘create’ a web page or to ‘send’ messages."⁴

To determine what the statute covers, we consider the plain meaning of the acts proscribed by the statute. See id. at 643 (citing United States v. Williams , 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) ). Setting aside lack of consent and intent, section 33.07(a) prohibits using the name or persona of another person to create a web page on a commercial social networking site or other Internet website, or to post or send one or more messages on or through a commercial social networking site or other Internet website. See Tex. Penal Code § 33.07(a).

The statute defines "commercial social networking site" as "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." Id. § 33.07(f)(1) (West 2015). To "use" is to employ for the accomplishment or achievement of a purpose, or to apply to oneself. New Oxford American Dictionary 1907 (3d ed. 2010). One's "name" is a word or words identifying a person, by which a person is known or addressed. Black's Law Dictionary 1119 (9th ed. 2009); New Oxford American Dictionary 1163. One's "persona" is the aspect of a person's character that is presented to or perceived by others. New Oxford American Dictionary 1307. To "create" is to bring into existence. Id.405 . A "web page" is a hypertext document connected to the World Wide Web. Id. 1958. A "website" is a set of related web pages located under a single domain name. Id. The "Internet" is a global computer network providing information and communication facilities through interconnected networks using a common set of communication protocols. Id. ; see Reno v. Am. Civil Liberties Union , 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) ("The Internet is an international network of interconnected computers."). To "post" is to publish or announce by affixing or displaying a notice, including...