Texas Penal Code § 42.07(a)(7) makes it a crime to “send[] repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another” when done with intent to produce any of those same effects. The Texas Court of Criminal Appeals has repeatedly held that the statute does not even “implicate” the First Amendment because it regulates “non-speech conduct.” Hx parte Barton, 662 S.W.3d 876, 884 (Tex. Crim. App. 2022); Ex parte Sanders, 663 S.W.3d 197, 215-16 (Tex. Crim. App. 2022). Yet last year, the same court held the same statute unconstitutional as applied because the messages prosecuted under it were “speech.” Owens v. State, 728 S.W.3d 155, 167 (Tex. Crim. App. 2025). These positions are inconsistent; either the means of committing the offense as described by the statute are “speech” (and thus implicate the First Amendment) or the only conduct which can be constitutionally forbidden under the statute is the non-content, non-speech part of the offense. The question presented is thus:

Whether Texas Penal Code § 42.07(a)(7), which

criminalizes repeated electronic communications

sent with intent to and reasonably likely to annoy,

alarm, embarrass, or offend another person, is

overbroad under the First Amendment.