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The Texas Online Impersonation Statute May be Unconstitutional


Texas Penal Code 33.07  potentially criminalizes speech that is protected under the First Amendment.  Furthermore, it is overbroad.  The statute is so sweeping it would appear on its face to potentially criminalize satirical websites, Twitter or Facebook accounts aimed at politicians or other public figures. 33.07 was adopted in 2011 and higher courts have not yet ruled upon its constitutionality.  The Fourteenth and Fifth Courts of Appeals have avoided addressing the First Amendment claim on jurisdictional or other procedural grounds.

The Statute

ONLINE IMPERSONATION. (a) 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.
Tex. Penal Code Sec. 33.07.

The method for addressing the constitutionality of the statute is known as a pretrial writ of habeas corpus.  Th law allows counsel to argue that the statute is unconstitutional on its face through the use of an application of a writ of habeas corpus.  This may be done as a pretrial matter, and if it is granted the case will dismissed.  In my view, this statute should be challenged on first amendment grounds and pursued until the higher courts have definitively ruled on the issue.





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