It so happens that Texas passed a state law [effective] September 1 that specifically targets those who "use another person's name to post messages on a social-networking site without their permission and with the intent to harm, defraud, intimidate or threaten." Such willful behavior is now a third-degree felony.This new law, HB 2003, was yet another "enhancement" bill (a capitol euphemism for criminal penalty hikes) passed out of the House Criminal Jurisprudence Committee - one of 40 new crimes and 36 penalty hikes the Lege created this year, according to the DA's Association.
I didn't watch these enhancement bills closely and neither did the media, but now that Chief Acevedo is threatening to seek prosecutions under the new law, it's worth looking at in more detail.
One fascinating thing about the bill stands out unrelated to the current topic: It's actually a defense to prosecution for using another's name to harm, defraud, intimidate or threaten if you are an employee of a commercial social networking site, an Internet Service Provider, an interactive computer service, a telecommunications provider, or a video or cable service provider. In that case, please, go right ahead!
One wonders why create a defense for companies but not a defense for, say, SATIRE or other First Amendment protected speech? How about an exception for public figures, as we have in libel law? I didn't watch the debate on this bill so I don't know if they just thought it wasn't needed or if nobody brought it up.
An example that arose soon after session, however, raised this issue somewhat prominently: This summer somebody created a funny but rather mean-spirited Twitter site in the name of Harris County DA Pat Lykos, changing it to FakePatLykos (which is still active) after the DA complained and Twitter shut it down.
It was just a gag and nobody with half a brain really thought it was her. But frankly some people are pretty dense, a few didn't get the joke (Jared Woodfill, I'm talking to you), and whether it's intended to "harm" her or not, certainly the author didn't create the site to benefit the DA but to essentially mock her. Is harm to reputation enough to trigger the bill's punishments? Quite arguably. And that's the rub.
There's a particular risk that political figures in law enforcement like the DA and the police chief could use such a statute to seek prosecution of anonymous critics whose speech should be protected. There are existing constitutional protections for that kind of speech but they aren't written in the statute and Texas lawmakers carved out no specific defense the way they did for corporations, leaving the lines for the courts to draw.
Perhaps simple political prudence in the end will be the biggest deterrent to misusing the law that way. It would just be a strategically stupid thing to do. The Statesman editorial board got in the best line of the debate last week on that score, urging Acevedo to accept counsel from George Bernard Shaw, who advised "never to wrestle with a pig. You get dirty, and besides, the pig likes it."
This is Art Acevedo and I approved this message.