Bryan, Texas criminal-defense lawyer Stephen Gustitis (The Defense Perspective) is representing a guy charged with harassment for making an “obscene” comment in a written communication (artist’s depiction follows):

Can I lick you, Katie?

I assume, though Stephen doesn’t say so, that Katie got this billet-doux and did not welcome the inquiry.

Here’s Texas Penal Code Section 42.07, the harassment statute under which Stephen’s client is charged:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, he:
(1) initiates communication by telephone, in writing, or by electronic communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene;
(2) threatens, by telephone, in writing, or by electronic communication, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of his family or household, or his property;
(3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury;
(4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another;
(5) makes a telephone call and intentionally fails to hang up or disengage the connection;
(6) knowingly permits a telephone under the person’s control to be used by another to commit an offense under this section; or
(7) sends repeated electronic communications 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 signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes:
(A) a communication initiated by electronic mail, instant message, network call, or facsimile machine; and
(B) a communication made to a pager.
(2) “Family” and “household” have the meaning assigned by Chapter 71, Family Code.
(3) “Obscene” means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function.
(c) An offense under this section is a Class B misdemeanor, except that the offense is a Class A misdemeanor if the actor has previously been convicted under this section.

So. Stephen’s client has, it appears, asked whether it is possible and permissible for him to perform cunnilingus on Katie. Is that obscene under PC 42.07(b)(3)? If it were solicitation to commit an ultimate sex act, it would be obscene under the statute. But solicitation, as the term is generally used in Texas criminal law, is trying to get someone else to do the act. If poor Katie lets Stephen’s client lick her, she is not committing an ultimate (whatever that means) sex act, even if he is committing such a thing. She might not be doing anything at all but lying back and thinking of England.

If it’s not a solicitation, is it a patently (openly, obviously) offensive description of an ultimate sex act? As Stephen points out, “patently offensive” is not defined by the law. So if the case makes it to a jury, a jury of six Brazos County residents hearing this case might be asked, in effect, “is this letter patently offensive?”

The legal term for that is “a crapshoot.”

The reason we have a First Amendment is so that we, rather than the government, can decide what we need to say, and we can say it without even the threat of punishment.  We’ve been a long way down this road before: obscenity is not protected by the First Amendment, but obscenity is very narrowly defined:

A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

It’s as though the clowns (nope, libelous toward clowns) morons (nope, offensive to morons) dipshits in the Texas Legislature writing this statute were so happy at themselves for meeting the second of Miller v. California‘s criteria for obscenity that they peed all over themselves and forgot to read the rest of the opinion, with its two additional (conjunctive) criteria. So Texas has created a category of “obscenity” under 42.07 that includes a good deal that is not necessarily constitutionally obscene. The statute, as an obscenity statute, fails.

To be fair to those dipshits (because I am nothing if not fair to legislative dipshits), the Texas statute is about more than just obscenity. Criminal liability under the Texas statute requires not only that Stephen’s client have made a comment, suggestion, request, or proposal that was obscene, but also that he have done so “with intent to harass, annoy, alarm, abuse, torment, or embarrass another [presumably poor Katie].”

Those’re six more words that the law doesn’t define; their meaning could include everything from friendly teasing to credible threats of imminent violence.

Does the specific-intent element save the statute from being a gross violation of the First Amendment? Does otherwise-protected speech lose its First Amendment protection because it is uttered with the intent to annoy or embarrass? Does this society, like Texas’s legislative dipshits, value tranquility and self-esteem over free expression?

Miss Manners might not approve of us intentionally annoying or embarrassing other people, but doing so is often an accepted, and even necessary, part of communication. (My day isn’t complete till I’ve annoyed Murray Newman at least twice.) The Supreme Court has said (in a different context, in NAACP v. Claiborne Hardware, that “[s]peech does not lose its protected character . . . simply because it may embarrass others . . .”

But in Texas we have short-bus legislative dipshits who want to protect the rest of us from embarrassment and annoyance (hey, dipshits: you want to protect Texans from embarrassment? Resign immediately.).

So, for example, if I said, “the morons in the Texas Legislature, when they were writing this statute, had their tongues up the ass of the rightwing puritan religious theocrats,” it might occur to some Brazos County prosecutor that my conscious desire was to embarrass the dipshits who voted for this blatantly unconstitutional excrescence of a penal law. Said prosecutor might also decide that my words contained a patently offensive description of anilingus, and get a warrant for my arrest.

It doesn’t matter that the post is not obscene under Miller (whether it has serious literary, artistic, or political value [debatable], it  certainly doesn’t, taken as a whole, appeal to the prurient interest in sex); I could get charged with a class B misdemeanor for a post right here on Defending People.

The statute is so broad that I can be charged with a crime at the government’s discretion whenever I use dirty words? A prosecutor—like some snotnosed 25-year-old whose experience of the world has, until now, included nothing that didn’t contribute to an improved GPA or getting to third base—can charge me with a jailable offense because he thinks I meant to annoy or embarrass someone?

Fuck that.