Sanders, Ex Parte Nathan

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0469-19

EX PARTE NATHAN SANDERS, Appellant

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
LUBBOCK COUNTY

WALKER, J., delivered the opinion of the Court, in which HERVEY,
RICHARDSON, YEARY, and NEWELL, JJ., joined. YEARY, J., filed a concurring
opinion. KELLER, P.J., filed a dissenting opinion, in which KEEL, J., joined.
SLAUGHTER and MCCLURE, JJ., dissented.

OPINION

In Scott v. State, we held that § 42.07(a)(4) of the Penal Code, the telephone harassment

statute, does not implicate the freedom of speech protections of the First Amendment of the United

States Constitution because it prohibits non-speech conduct. 322 S.W.3d 662, 669–70 (Tex. Crim.

App. 2010), disavowed on other grounds by Wilson v. State, 448 S.W.3d 418, 423 (Tex. Crim. App.

2014). In the case before us today, we clarify and reaffirm our holding in Scott. Following Scott’s

precedent, we hold that § 42.07(a)(7) of the Penal Code, the electronic harassment statute, also fails
 2

to implicate the First Amendment’s freedom of speech protections because it too prohibits non-

speech conduct. We affirm the judgment of the court of appeals upholding § 42.07(a)(7) against

Appellant’s First Amendment challenge.

I — Background

Nathan Sanders, Appellant, was charged with violating Penal Code § 42.07(a)(7), the

electronic harassment statute, which provides:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse,
torment, or embarrass another, the person:

(7) sends repeated electronic communications in a manner reasonably likely to
harass, annoy, alarm, abuse, torment, embarrass, or offend another.

Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 42.07, 1973 Tex. Gen. Laws 883, 956–57

(amended 2013)1 (current version at TEX. PENAL CODE Ann. § 42.07(a)(7)).2 Appellant filed a pre-

trial application for habeas corpus relief on the basis that the statute was unconstitutionally

overbroad. The trial court denied relief, and the court of appeals affirmed. Ex parte Sanders, No. 07-

18-00335-CR, 2019 WL 1576076, at *1 (Tex. App.—Amarillo Apr. 8, 2019) (mem. op., not

1
Appellant’s case is governed by the 2013 version of the electronic harassment statute.
Accordingly, while we will reference the statute with its current citation, this opinion refers to the
2013 version.
2
“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.

TEX. PENAL CODE Ann. § 42.07(b)(1).
 3

designated for publication). The court of appeals determined that, for First Amendment purposes,

§ 42.07(a)(7) was the same as § 42.07(a)(4) which we upheld against a similar First Amendment

challenge in Scott. Id. at *2–3. The appellate court concluded that Scott was controlling and rejected

Appellant’s First Amendment challenge. Id. at *3–4.

We granted Appellant’s petition for discretionary review which argues that § 42.07(a)(7)

violates the First Amendment and that Scott should be overruled.3

II — Appellant’s Pre-Trial Writ

Before we address the substance of Appellant’s challenge, we begin with the State’s

threshold argument that Appellant’s ground for review is not properly before us. The State points

out that Appellant did not raise Scott before the trial court in his pre-trial application for writ of

habeas corpus. The State also faults Appellant for failing to make a proper First Amendment

overbreadth argument in his pre-trial application. As the State sees it, Appellant’s ground for review

is not adequately presented, and any opinion on the constitutionality of § 42.07(a)(7) or regarding

Scott would be advisory.

It is well-established that a decision of the trial court may be affirmed if it is correct on any

applicable theory of law—even if that theory was not presented to the trial court. Romero v. State,

800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Penry v. State, 903 S.W.2d 715, 750 n.34 (Tex. Crim.

App. 1995). It is also well-established that “[i]n our discretionary review capacity we review

3
Appellant’s ground for review specifically states:

Texas Penal Code section 42.07(a)(7) is a content-based restriction that restricts a
real and substantial amount of speech as protected by the First Amendment; speech
which invades privacy interests of the listener has never been held by the United
States Supreme Court to be a category of unprotected speech.
 4

‘decisions’ of the courts of appeals.” Stringer v. State, 241 S.W.3d 52, 59 (Tex. Crim. App. 2007)

(quoting Lee v. State, 791 S.W.2d 141, 142 (Tex. Crim. App. 1990)); TEX. R. APP. P. 66.1. Thus,

it is not dispositive that a party may not have preserved an issue in the trial court where the court of

appeals properly addressed the issue, and we granted discretionary review of it. Gallups v. State, 151

S.W.3d 196, 199 n.3 (Tex. Crim. App. 2004).

The court of appeals affirmed the trial court, finding that § 42.07(a)(7) is constitutional based

on Scott. Appellant challenges the court of appeals’s decision and its underlying basis in Scott. Scott

was properly addressed by the court of appeals. Scott’s holding was relevant to § 42.07(a)(7), several

other courts of appeals that considered the constitutionality of § 42.07(a)(7) relied on Scott, and both

parties argued the applicability of Scott in their respective appellate briefs. Accordingly, Appellant’s

ground for review is properly before us, regardless of whether Appellant’s pre-trial application raised

Scott or presented an adequate First Amendment overbreadth argument.

III — Scott v. State

The court of appeals, following the lead of several other appellate courts,4 upheld §

42.07(a)(7) by relying upon Scott v. State. In Scott, the defendant argued that § 42.07(a)(4), the

telephone harassment statute, is unconstitutionally “vague and overbroad” in violation of the First

Amendment. Scott, 322 S.W.3d at 665. This statute provided:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse,
torment, or embarrass another, he:

4
Lebo v. State, 474 S.W.3d 402, 408 (Tex. App.—San Antonio 2015, pet. ref’d); Ex parte
Ogle, No. 03-18-00207-CR, 2018 WL 3637385, at *7 (Tex. App.—Austin Aug. 1, 2018, pet. ref’d)
(mem. op., not designated for publication); Ex parte Reece, No. 11-16-00196-CR, 2016 WL
6998930, at *3 (Tex. App.—Eastland Nov. 30, 2016, pet. ref’d) (mem. op., not designated for
publication); Blanchard v. State, No. 03-16-00014-CR, 2016 WL 3144142, at *3–4 (Tex.
App.—Austin June 2, 2016, pet. ref’d) (mem. op., not designated for publication).
 5

(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[.]

Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 42.07, 1973 Tex. Gen. Laws 883, 956–57

(amended 2001) (current version at TEX. PENAL CODE Ann. § 42.07(a)(4)). We concluded that the

2001 version of § 42.07(a)(4) is not susceptible to being considered communicative conduct

protected by the First Amendment because the statute criminalized harassing conduct that, although

it may include spoken words, was essentially noncommunicative. Scott, 322 S.W.3d at 669–70.5

Furthermore, we determined that “persons whose conduct violates § 42.07(a)(4) will not have an

intent to engage in the legitimate communication of ideas, opinions, or information; they will have

only the intent to inflict emotional distress for its own sake.” Id. at 670. We held that § 42.07(a)(4)

did not implicate the First Amendment, and, accordingly, Scott failed to show it was

unconstitutionally vague on its face. Id. at 669, 670–71.

Additionally, we noted that while the First Amendment “generally protects the free

communication and receipt of ideas, opinions, and information,” the “State may lawfully proscribe

communicative conduct (i.e., the communication of ideas, opinions, and information) that invades

the substantial privacy interests of another in an essentially intolerable manner.” Id. at 668–69.

Therefore, if the conduct was, in fact, communicative:

To the extent that the statutory subsection is susceptible of application to
communicative conduct, it is susceptible of such application only when that
communicative conduct is not protected by the First Amendment because, under the
circumstances presented, that communicative conduct invades the substantial privacy
interests of another (the victim) in an essentially intolerable manner.

5
In 2013, § 42.07(a) was amended to change “he” to “the person”. Act of May 22, 2013, 83d
Leg., R.S., ch. 1278, § 1, 2013 Tex. Gen. Laws 3231, 3231 (current version at TEX. PENAL CODE
Ann. § 42.07(a)).
 6

Id. at 670. In other words, communicative conduct—speech—that invades the substantial privacy

interests of another in an essentially intolerable manner is outside the protection of the First

Amendment. This particular discussion in Scott is the crux of Appellant’s argument before us today.

IV — Scott and § 42.07(a)(7)

In considering Appellant’s case below, the court of appeals determined that the text of the

electronic harassment statute, § 42.07(a)(7), is—for the purposes of First Amendment analysis—

identical to § 42.07(a)(4):

As others have pointed out . . . all subsections of section 42.07(a) require the same
specific intent, that “to harass, annoy, alarm, abuse, torment, or embarrass another.”
And while subsection (a)(4) is violated when the actor “makes” repeated telephone
communications and (a)(7) is violated when the actor “sends” repeated electronic
communications, both subsections require for guilt that the repeated communications
occur “in a manner reasonably likely to harass, annoy, alarm, abuse, torment,
embarrass, or offend another.”

Sanders, 2019 WL 1576076, at *3. Appellant also notes that although Scott was concerned with the

telephone harassment statute instead of the electronic harassment statute, “the rationale is the same.”6

We agree with the court of appeals’s reliance on Scott. For First Amendment purposes,

Scott’s holding that § 42.07(a)(4), the telephone harassment statute, does not implicate the First

Amendment should apply equally to § 42.07(a)(7), the electronic harassment statute. Accordingly,

if Scott is still good law, then § 42.07(a)(7) does not implicate the First Amendment.

V — Should Scott be Overruled?

Appellant argues that Scott should be reconsidered because our opinion in that case “created,

ex nihilo, a new category of unprotected speech: speech which, for purposes of inflicting emotional

6
Pet’r’s Br. 19.
 7

distress, invades substantial privacy interests.”7 Appellant would have us overrule Scott and, in the

absence of Scott, hold that § 42.07(a)(7) is unconstitutional.

“We ordinarily observe the doctrine of stare decisis ‘to promote judicial efficiency and

consistency, encourage reliance on judicial decisions, and contribute to the integrity of the judicial

process.’” Garcia v. State, 614 S.W.3d 749, 754 (Tex. Crim. App. 2019) (quoting Paulson v. State,

28 S.W.3d 570, 571 (Tex. Crim. App. 2000)). Accordingly, we “should not frivolously overrule

established precedent.” Ex parte Thomas, 623 S.W.3d 370, 381 (Tex. Crim. App. 2021). However,

“stare decisis is not an inexorable command.” Id. “While there is a strong presumption in favor of

established law,” we may reconsider our precedent “when, for instance, the original rule or decision

was flawed from the outset, produces inconsistent, unjust, or unanticipated results or places

unnecessary burdens on the system.” Id. In other words, “we are not constrained to follow precedent

that is wrongly decided or unworkable.” Id. at 382. Adhering to such precedent does not further stare

decisis’s goals of promoting judicial efficiency and consistency, encouraging reliance upon judicial

decisions, or contributing to the integrity of the judicial process. Id. at 381–82. Thus, while

“precedent warrants ‘deep respect as embodying the considered views of those who have come

before’ . . . ‘stare decisis [is not] supposed to be the art of methodically ignoring what everyone

knows to be true.’” Id. at 382 (quoting Ramos v. Louisiana, 140 S.Ct. 1390, 1404–05 (2020)).

VI — The Core Holding of Scott

Appellant argues that Scott should be overruled because: (1) in Stevens, the Supreme Court

7
Pet’r’s Br. 19.
 8

emphasized that courts are not free to declare categories of unprotected speech;8 (2) in Alvarez, the

Supreme Court listed the categories of unprotected speech, which did not include intentional

harassment;9 and (3) in Scott, we relied upon dicta to declare a category of speech outside the

protection of the First Amendment.

As discussed above, in Scott we noted that “[t]he State may lawfully proscribe

communicative conduct (i.e., the communication of ideas, opinions, and information) that invades

the substantial privacy interests of another in an essentially intolerable manner.” Scott, 322 S.W.3d

at 668–69 (citing Cohen v. California, 403 U.S. 15, 21 (1971)).10 And if the conduct was, in fact,

8
Appellant points to the following admonition in Stevens: “Our decisions in Ferber and
other cases cannot be taken as establishing a freewheeling authority to declare new categories of
speech outside the scope of the First Amendment.” United States v. Stevens, 559 U.S. 460, 472
(2010) (referring to New York v. Ferber, 458 U.S. 747, 764 (1982) (holding child pornography
outside the protection of the First Amendment)); see also United States v. Alvarez, 567 U.S. 709, 722
(2012) (“Although the First Amendment stands against any ‘freewheeling authority to declare new
categories of speech outside the scope of the First Amendment,’. . . .”) (quoting Stevens, 559 U.S.
at 472)).
9
In Alvarez, the Supreme Court listed historical categories of speech that are outside the
protection of the First Amendment:

content-based restrictions on speech have been permitted, as a general matter, only
when confined to the few “‘historic and traditional categories [of expression] long
familiar to the bar.’” . . . Among these categories are advocacy intended, and likely,
to incite imminent lawless action . . . obscenity . . . defamation . . . speech integral
to criminal conduct . . . so-called “fighting words,” . . . child pornography . . . fraud
. . . true threats . . . and speech presenting some grave and imminent threat the
government has the power to prevent . . . although a restriction under the last
category is most difficult to sustain . . . . These categories have a historical
foundation in the Court’s free speech tradition. The vast realm of free speech and
thought always protected in our tradition can still thrive, and even be furthered, by
adherence to those categories and rules.

Alvarez, 567 U.S. at 717–18.
10
Appellant criticizes our citation to Cohen as reliance on dicta.
 9

communicative:

To the extent that the statutory subsection is susceptible of application to
communicative conduct, it is susceptible of such application only when that
communicative conduct is not protected by the First Amendment because, under the
circumstances presented, that communicative conduct invades the substantial privacy
interests of another (the victim) in an essentially intolerable manner.

Id. at 670.

Appellant takes these statements from Scott to be our holding, and he contends that we

improperly created a category of speech outside the protection of the First Amendment. In response,

the State begins its brief noting that “the core holding of Scott” was that “harassment . . . covered

by Texas Penal Code 42.07 is non-communicative conduct that does not implicate the First

Amendment.”11 In his Reply Brief, Appellant, again quoting the above language in Scott, complains

that “[t]he State even gets Scott’s holding wrong.”12

We disagree. A plain reading of Scott shows that we did not hold that the conduct proscribed

by § 42.07(a)(4) constituted speech categorically outside the protection of the First Amendment. We

held that it was not speech at all.

In Scott, the State raised six grounds for review, which we granted:

(1) Are subsections (a)(4) and (a)(7) of Texas Penal Code § 42.07 unconstitutionally
vague?

(2) Do subsections (a)(4) and (a)(7) of Texas Penal Code § 42.07 implicate the First
Amendment to the United States Constitution?

(3) Are the term “repeated” and the phrase “in a manner reasonably likely to harass,
annoy, alarm, abuse, torment, embarrass, or offend another,” which are both
contained within Texas Penal Code § 42.07(a)(4) and (a)(7), unconstitutionally

11
State’s Br. on the Merits 1.
12
Pet’r’s Reply Br. 12–13.
 10

vague?

(4) Did the State’s allegation that appellant left “voice mail messages” implicate
Texas Penal Code § 42.07(a)(7) in this case, and does that phrase necessarily fall
within the definition of “electronic communication” found at Texas Penal Code §
42.07(b)(1)?

(5) If some part of Texas Penal Code § 42.07 is unconstitutionally vague, did the
Court of Appeals err by declaring it vague and acquitting appellant instead of
applying a narrow construction to the statute to avoid the alleged vagueness?

(6) Has the Court of Appeals improperly determined that because subsections (a)(4)
and (a)(7) of Texas Penal Code § 42.07 allegedly implicate the First Amendment and
might curtail protected speech those subsections are vague, when the proper question
should have been whether the subsections are overbroad?

Scott, 322 S.W.3d at 667–68, n.9. However, we only addressed two of those grounds. Id. at 670

(“Given our disposition of the State’s second and fourth grounds for review, we need not reach the

State’s remaining grounds for review. We dismiss them.”). We first discussed the State’s fourth

ground for review, which argued that the court of appeals erred in addressing the constitutionality

of § 42.07(a)(7), the electronic harassment statute. Id. at 668. The court of appeals had found that

the information language,13 alleging that the defendant had left abusive and harassing voicemail

messages, fell within the statutory definition of electronic communication. Id. at 667. As a result,

13
The defendant in Scott was charged by two informations. The second information alleged
that:

on or about the 12th Day of March, 2006, Samuel Scott, hereinafter referred to as
defendant, with intent to harass, annoy, alarm, abuse, torment, and embarrass Yvette
Scott, hereinafter referred to complainant, did make repeated telephone
communications to the complainant in a manner reasonably likely to harass, annoy,
alarm, abuse, torment, embarrass and offend the complainant, to wit: the defendant
called the complainant repeatedly by telephone while intoxicated, late at night,
leaving abusive and harassing voice mail messages.

Scott, 322 S.W.3d at 665.
 11

the court of appeals considered the constitutionality of both § 42.07(a)(4) and (a)(7). See id. at 667.

We agreed with the State’s argument and sustained the ground because the information

tracked the language of § 42.07(a)(4), not (a)(7), and because the statutory text of § 42.07(a)(4)

seemed to cover ordinary voice (and therefore voicemail), whereas the text of (a)(7) seemed to cover

non-telephonic messages such as e-mail and instant messages. Id. at 668.

After sustaining that ground, we turned to the State’s second ground for review, which argued

“that the court of appeals erred in concluding that § 42.07(a)(4) implicated the free-speech guarantee

of the First Amendment.” Id. at 668.14 It was important to address “[t]he question of whether the

statutory subsection implicate[d] the free-speech guarantee . . . because if the statutory subsection

does implicate the free-speech guarantee, then Scott, in making his vagueness challenge, is relieved

of the usual requirement of showing that the statutory subsection was unduly vague as applied to his

conduct.” Id. We then proceeded “[t]o answer the question of whether § 42.07(a)(4) implicates the

free-speech guarantee of the First Amendment[.]” Id. After examining the text of the statute,

we conclude[d] that it is not susceptible of application to communicative conduct that
is protected by the First Amendment. In other words, the statutory subsection does
not implicate the free-speech guarantee of the First Amendment. . . . [W]e believe
that the conduct to which the statutory subsection is susceptible of application will
be, in the usual case, essentially noncommunicative, even if the conduct includes
spoken words.

Id. at 669–70 (emphasis added). Finally, returning to the matter of vagueness, we ended our Scott

opinion by stating: “Because § 42.07(a)(4) does not implicate the free-speech guarantee of the First

Amendment, Scott, in making his vagueness challenge to that statutory subsection, was required to

14
We note that the State’s second ground in Scott also challenged the court of appeals’s
constitutionality ruling as to § 42.07(a)(7). Id. at 667–68 n.9. Due to our resolution of the State’s
fourth ground, the court of appeals’s decision regarding § 42.07(a)(7) was no longer at issue.
 12

show that it was unduly vague as applied to his own conduct.” Id. at 670–71 (emphasis added).

The core holding of our opinion in Scott is that the conduct regulated by § 42.07(a)(4) is

noncommunicative and does not implicate the free-speech guarantee of the First Amendment. The

core holding was not that § 42.07(a)(4) regulates speech unprotected by the First Amendment. A

regulation involving non-protected speech nevertheless still implicates the First Amendment and can

still be subject to First Amendment scrutiny, as explained by the Supreme Court in R.A.V. v. City of

St. Paul, Minnesota:

We have sometimes said that these categories of expression [obscenity, defamation,
and fighting words] are “not within the area of constitutionally protected speech,” .
. . or that the “protection of the First Amendment does not extend” to them . . . Such
statements must be taken in context, however, and are no more literally true than is
the occasionally repeated shorthand characterizing obscenity “as not being speech at
all[.]” . . . What they mean is that these areas of speech can, consistently with the
First Amendment, be regulated because of their constitutionally proscribable content
(obscenity, defamation, etc.)—not that they are categories of speech entirely invisible
to the Constitution, so that they may be made the vehicles for content discrimination
unrelated to their distinctively proscribable content. Thus, the government may
proscribe libel; but it may not make the further content discrimination of proscribing
only libel critical of the government.

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 383–84 (1992). The Supreme Court elaborated:

Our cases surely do not establish the proposition that the First Amendment imposes
no obstacle whatsoever to regulation of particular instances of such proscribable
expression, so that the government “may regulate [them] freely,” . . . That would
mean that a city council could enact an ordinance prohibiting only those legally
obscene works that contain criticism of the city government or, indeed, that do not
include endorsement of the city government. Such a simplistic, all-or-nothing-at-all
approach to First Amendment protection is at odds with common sense and with our
jurisprudence as well.

Id. at 384. The Supreme Court proceeded to hold that the ordinance at issue in the case was facially

invalid under the First Amendment, although it regulated “fighting words.” Id. at 381. Thus, simply

because the ordinance at issue covered unprotected speech did not mean that the ordinance could not
 13

be subject to First Amendment scrutiny. To the contrary, the Supreme Court applied First

Amendment strict scrutiny because (its coverage of “fighting words” notwithstanding) it proscribed

only those “fighting words” that insult or provoke violence “on the basis of race, color, creed,

religion or gender.” Id. at 391. It did not prohibit “fighting words” in connection with other ideas,

such as expressing hostility on the basis of political affiliation, union membership, or homosexuality.

Id. Accordingly, the ordinance imposed a special prohibition on speakers who expressed views on

disfavored subjects. Id. This went beyond mere content discrimination to actual viewpoint

discrimination. Id.

As illustrated by R.A.V., a statute that covers speech in a category traditionally outside the

protection of the First Amendment nevertheless still implicates the First Amendment. In the absence

of speech, whether protected or unprotected, the First Amendment is not implicated. When we held

in Scott that the conduct regulated by § 42.07(a)(4) does not implicate the First Amendment because

the conduct governed by § 42.07(a)(4) is noncommunicative, we meant it. It is not speech.

Therefore, the discussion Appellant complains of, wherein we referred to the State’s ability

to restrict communications that invade another’s privacy interests in an essentially intolerable

manner, was—at the very least—a recognition of the legitimate governmental purpose to which the

statute bears a rational relationship. See Romer v. Evans, 517 U.S. 620, 631 (1996) (stating standard

of review for upholding statutes that neither burden a fundamental right nor target a suspect class).

At the most, we posed an alternative theory to support our judgment that the statute did not violate

the First Amendment. But even on that basis, it was not Scott’s holding, or even an alternative
 14

holding.15 Aside from the brief mention of the theory, our disposition of the State’s second ground

for review in Scott was based squarely on our conclusion that § 42.07(a)(4) regulated non-speech

conduct, even if that conduct included the use of words. We did not carve a category of speech out

from the protections of the First Amendment. Appellant’s retort in his Reply Brief has it

backwards—the State gets Scott’s holding right.16

VII — Scott Was Not Wrongly Decided and Is Not Unworkable

Our clarification of Scott’s holding—that the telephone harassment statute, § 42.07(a)(4),

regulates non-speech conduct and therefore does not implicate the First Amendment—puts to bed

Appellant’s specific reasons for overruling the case. But, as explained above, a precedent may be

overruled if it was wrongly decided or has proven to be unworkable. Thomas, 623 S.W.3d at 382.

Appellant is not the only one to suggest that Scott was wrongly decided and should be reconsidered.

See Scott, 322 S.W.3d at 671 (Keller, P.J., dissenting); Wilson, 448 S.W.3d at 426–27 (Keller, P.J.,

concurring) (“[W]e ought to, when the issue is raised again, re-evaluate our holding in [Scott].”); Ex

15
We have previously suggested that an alternative holding “could be viewed as mere dicta.”
Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997). However, we have never explicitly held
as much. See Duran v. State, 492 S.W.3d 741, 754 n.1 (Tex. Crim. App. 2016) (Yeary, J., concurring
and dissenting) (“So far as I know, this Court has yet to fashion a rule—one way or the other—with
respect to the precedential value of alternative holdings.”). Our sister court, the Supreme Court of
Texas, has clearly stated that alternative holdings are binding. Ross v. St. Luke’s Episcopal Hosp.,
462 S.W.3d 496, 502 (Tex. 2015) (“[A]lternative holdings . . . are . . . entitled to stare decisis
treatment[.]”).

Whatever may be said regarding the precedential value of alternative holdings, what is clear in this
case is that the theory stated in Scott—that if it were communicative conduct, “that communicative
conduct is not protected by the First Amendment because . . . that communicative conduct invades
the substantial privacy interests of another (the victim) in an essentially intolerable manner”—was
not even an alternative holding.
16
Contra Pet’r’s Reply Br., at 12 (“The State even gets Scott’s holding wrong.”).
 15

parte Reece, 517 S.W.3d 108, 110 (Tex. Crim. App. 2017) (Keller, P.J., dissenting to refusal of

petition for discretionary review) (“The second reason to grant review is to re-examine Scott.”); Ogle

v. State, 563 S.W.3d 912, 912 (Tex. Crim. App. 2018) (Keller, P.J., dissenting to refusal of petition

for discretionary review).

We conclude that Scott was neither wrongly decided nor unworkable, and we decline the

suggestion to overrule it. We find no fault in our holding that § 42.07(a)(4), the telephone harassment

statute, regulates non-speech conduct and therefore does not implicate the First Amendment.

“The First Amendment literally forbids the abridgment only of ‘speech[.]’” Texas v. Johnson,

491 U.S. 397, 404 (1989). However, the First Amendment’s “protection does not end at the spoken

or written word.” Id. “[T]he Constitution looks beyond written or spoken words as mediums of

expression.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995).

For example, “[s]ymbolism is a primitive but effective way of communicating ideas.” W. Va. State

Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943). Accordingly, “conduct may be ‘sufficiently

imbued with elements of communication to fall within the scope of the First and Fourteenth

Amendments[.]’” Johnson, 491 U.S. at 404 (quoting Spence v. Washington, 418 U.S. 405, 409

(1974)).

However, “[i]t is possible to find some kernel of expression in almost every activity a person

undertakes—for example, walking down the street or meeting one’s friends at a shopping mall—but

such a kernel is not sufficient to bring the activity within the protection of the First Amendment.”

City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989); see also Barnes v. Glen Theatre, Inc., 501 U.S.

560, 576 (1991) (Scalia, J., concurring) (“[V]irtually every law restricts conduct, and virtually any

prohibited conduct can be performed for an expressive purpose—if only expressive of the fact that
 16

the actor disagrees with the prohibition.”). Thus, the Supreme Court has rejected “the view that an

apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the

conduct intends thereby to express an idea.” United States v. O’Brien, 391 U.S. 367, 376 (1968).

Instead, First Amendment protection extends “only to conduct that is inherently expressive.”

Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 66 (2006) (FAIR). To

determine “whether particular conduct possesses sufficient communicative elements to bring the

First Amendment into play,” the question to ask is “whether ‘an intent to convey a particularized

message was present, and whether the likelihood was great that the message would be understood

by those who viewed it.’” Johnson, 491 U.S. at 404 (quoting Spence, 418 U.S. at 410–11)). But “a

‘particularized message’” is not required, or else the freedom of speech “would never reach the

unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky

verse of Lewis Carroll.” Hurley, 515 U.S. at 569. The answer to the question oftentimes depends on

the circumstances surrounding the conduct. “[T]he context in which a symbol is used for purposes

of expression is important, for the context may give meaning to the symbol.” Spence, 418 U.S. at

410.

Where the conduct does not have a significant expressive element, then “the First

Amendment is not implicated by the enforcement of a [law] of general application[.]” Arcara v.

Cloud Books, Inc., 478 U.S. 697, 706–07 (1986). Such laws, applicable to “nonexpressive conduct,”

do not “[have] anything to do with the First Amendment.” See Virginia v. Hicks, 539 U.S. 113, 123

(2003) (holding that city policy authorizing police to bar non-residents from low income housing

development and thereafter arrest individuals violating barment order for trespassing did not violate

First Amendment, even if trespasser sought to engage in speech); Arcara, 478 U.S. at 706–07
 17

(finding that enforcement of statute authorizing closure of premises used for prostitution did not

violate First Amendment as applied to bookstore; even though bookstore sold books, such activity

did not confer First Amendment protection to prostitution activity occurring on the premises). “Any

other conclusion would lead to the absurd result that any government action that had some

conceivable speech-inhibiting consequences, such as the arrest of a newscaster for a traffic violation,

would require analysis under the First Amendment.” Arcara, 478 U.S. at 708 (O’Connor, J.,

concurring).

Thus:

[N]onverbal expressive activity can be banned because of the action it entails, but not
because of the ideas it expresses—so that burning a flag in violation of an ordinance
against outdoor fires could be punishable, whereas burning a flag in violation of an
ordinance against dishonoring the flag is not.

R.A.V., 505 U.S. at 385.

Delineating and applying the above principles, the Supreme Court has recognized a wide

array of conduct as expressive, including displaying a red flag “as a sign, symbol, or emblem of

opposition to organized government[;]”17 saluting and not saluting the flag;18 conducting a silent sit-

in;19 burning a draft card in demonstration against the war and the draft;20 wearing black armbands

to object to the hostilities in Vietnam;21 displaying the flag upside down with a “peace symbol” made

17
Stromberg v. California, 283 U.S. 359, 369 (1931).
18
Barnette, 319 U.S. at 632–34, 642.
19
Brown v. Louisiana, 383 U.S. 131, 141–42 (1966).
20
O’Brien, 391 U.S. at 376.
21
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504–06 (1969).
 18

of black tape affixed to the flag to express that America stood for peace after the Cambodian

invasion and the Kent State massacre;22 camping in Lafayette Park and the National Mall to call

attention to the plight of the homeless;23 burning the flag during a protest rally;24 nude dancing;25

marching in a parade;26 organizing and choosing the participants in a parade;27 and cross-burning.28

In comparison, the Supreme Court found the conduct in FAIR was not inherently expressive

and thus did not implicate the First Amendment. FAIR, 547 U.S. at 66. In that case, an association

of law schools and law school faculties, opposed to the military’s policy on homosexuals, began

restricting access to military recruiters for on-campus interviews. Id. at 51. In response, Congress

enacted the Solomon Amendment which stripped federal funding from institutions that denied access

to military recruiters. Id. The law schools and faculties sought a preliminary injunction against the

application of the Solomon Amendment, arguing that the law put them to the choice of exercising

their First Amendment rights or ensuring federal funding for their universities. Id. at 52–53.

Among other arguments, the Supreme Court “consider[ed] whether the expressive nature of

the conduct regulated by the statute brings that conduct within the First Amendment’s protection.”

Id. at 65 (emphasis in original). The Supreme Court determined that:

22
Spence, 418 U.S. at 409–10.
23
See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (assuming,
without deciding, that conduct was expressive).
24
Johnson, 491 U.S. at 406.
25
Barnes, 501 U.S. at 565–66.
26
Hurley, 515 U.S. at 569–70.
27
Id. at 574–75.
28
Virginia v. Black, 538 U.S. 343, 360–61 (2003).
 19

Unlike flag burning, the conduct regulated by the Solomon Amendment is not
inherently expressive. . . . [L]aw schools “expressed” their disagreement with the
military by treating military recruiters differently from other recruiters. But these
actions were expressive only because the law schools accompanied their conduct
with speech explaining it. For example, the point of requiring military interviews to
be conducted on the undergraduate campus is not “overwhelmingly apparent.” . . .
An observer who sees military recruiters interviewing away from the law school has
no way of knowing whether the law school is expressing its disapproval of the
military, all the law school’s interview rooms are full, or the military recruiters
decided for reasons of their own that they would rather interview someplace else.

The expressive component of a law school’s actions is not created by the conduct
itself but by the speech that accompanies it. The fact that such explanatory speech is
necessary is strong evidence that the conduct at issue here is not so inherently
expressive that it warrants protection. . . .

Id. at 66.

Similarly, in Carrigan, the Supreme Court considered a recusal provision in a Nevada

governmental ethics law that requires public officials to recuse themselves from voting on, or

advocating the passage or failure of, a matter the official has a personal interest in. Nev. Comm’n on

Ethics v. Carrigan, 564 U.S. 117, 119, 121 (2011). The Nevada Supreme Court determined that the

law violated the First Amendment, finding that a legislator’s vote is protected speech. Id. at 121.

Reversing, the United States Supreme Court considered several arguments—including the

contention raised by the concurrence “that legislators often ‘use their votes to express deeply held

and highly unpopular views, often at great personal or political peril.’” Id. at 126 (quoting id. at 133

(Alito, J., concurring)). Invoking the reasoning of FAIR, the Supreme Court majority responded:

How do they express those deeply held views, one wonders? Do ballots contain a
check-one-of-the-boxes attachment that will be displayed to the public, reading
something like “( ) I have a deeply held view about this; ( ) this is probably desirable;
( ) this is the least of the available evils; ( ) my personal view is the other way, but my
constituents want this; ( ) my personal view is the other way, but my big contributors
want this; ( ) I don’t have the slightest idea what this legislation does, but on my way
in to vote the party Whip said vote ‘aye’”? There are, to be sure, instances where
 20

action conveys a symbolic meaning—such as the burning of a flag to convey
disagreement with a country’s policies . . . But the act of voting symbolizes nothing.
It discloses, to be sure, that the legislator wishes (for whatever reason) that the
proposition on the floor be adopted, just as a physical assault discloses that the
attacker dislikes the victim. But neither the one nor the other is an act of
communication. Cf. [FAIR, 547 U.S. at 66] (expressive value was “not created by the
conduct itself but by the speech that accompanies it”).

Id. at 126–27.

Turning to the conduct proscribed by § 42.07(a)(4), is such conduct inherently expressive?

See FAIR, 547 U.S. at 66. Is an intent to convey a particularized message present? See Johnson, 491

U.S. at 404. Is the likelihood great that the message would be understood by those who viewed it?

See id. Because Appellant’s challenge to the statute came pre-trial, and there is no record evidence

of conduct to examine for elements of expression, we return to the statute’s literal text:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse,
torment, or embarrass another, the person:

(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;

TEX. PENAL CODE Ann. § 42.07(a)(4); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)

(“[W]e necessarily focus our attention on the literal text of the statute in question[.]”). The §

42.07(a)(4) offense has three gravamen: causing the telephone of another to ring repeatedly (a result

of conduct offense); making repeated telephone communications anonymously (a nature of conduct

offense); and making repeated telephone communications in a manner reasonably likely to harass,

annoy, alarm, abuse, torment, embarrass, or offend another (a nature of conduct offense). See

generally Price v. State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015) (discussing gravamen of the

offense).
 21

Causing a telephone to ring repeatedly is not inherently expressive; there is no intent to

convey a particularized message, nor is there any likelihood that an observer would understand a

message from the conduct. See FAIR, 547 U.S. at 66; Johnson, 491 U.S. at 404.

As for the “makes repeated telephone communications anonymously” offense, we recognized

in Scott that “the text [of the statute] does not require that the actor use spoken words.” Scott, 322

S.W.3d at 669. Repeated calls where the anonymous caller says nothing at all, or where the calls

contain indistinct noise, would constitute the making of “repeated telephone communications.” An

observer would not comprehend any communicative message from those calls. See Johnson, 491

U.S. at 404.

Finally, regarding the “makes repeated telephone communications in a manner reasonably

likely to harass . . . ” offense, the use of harassing, annoying, alarming, abusive, tormenting,

embarrassing, or offending words could easily show the calls were made in a harassing, annoying,

alarming, abusive, tormenting, embarrassing, or offending manner. Again, however, “the text [of the

statute] does not require that the actor use spoken words.” Scott, 322 S.W.3d at 669. Repeated

telephone communications can be made in a harassing, annoying, alarming, abusive, tormenting,

embarrassing, or offending manner without any words used at all. For example, if the telephone calls

are consistently repeated or made during particularly inconvenient hours, such calls could very well

be made in the prohibited manner, regardless of the content of those calls. And an observer, viewing

such conduct, would not understand the calls to be portraying a message. See Johnson, 491 U.S. at

404.

The bare statutory conduct prohibited by § 42.07(a)(4) is distinct from the expressive conduct

recognized by the Supreme Court. It does not involve symbols which carry special symbolic meaning
 22

like the flag. See, e.g., Stromberg, 283 U.S. 359; Barnette, 319 U.S. 624; Spence, 418 U.S. 405;

Johnson, 491 U.S. 397. It does not involve acts that communicate an idea in light of societal context

such as conducting a sit-in during the midst of the Civil Rights Movement, burning a draft card as

part of an anti-war protest during the Vietnam War, or taping a peace sign to an upside down flag

in the aftermath of the Kent State massacre. See, e.g., Brown, 383 U.S. 131; O’Brien, 391 U.S. 367;

Spence, 418 U.S. 405. It is not “closely akin to ‘pure speech’” like wearing a black armband to show

solidarity with the anti-war movement. Tinker, 393 U.S. at 505–06. It does not even occupy the outer

limits of the First Amendment’s protection where one would find nude dancing that communicates

a message of eroticism. Barnes, 501 U.S. at 565–66.

Instead, statutory conduct covered by § 42.07(a)(4) fails to express any ideas at all. Like law

schools requiring military recruiters to conduct their interviews on their undergraduate campus, or

a legislator’s vote, an observer viewing a person repeatedly make telephone calls would not perceive

any expressive element by the calling alone. Is the caller trying to annoy the person who he is

calling? Or is the caller sincerely trying to reach the person, wholly intending to have a conversation?

The same is true when the observer views the conduct from the receiving end. An observer would

not perceive any expressive message by witnessing a telephone ring repeatedly or by seeing a person

receive repeated phone calls. There is no likelihood that those who view the bare statutory conduct

of making repeated phone calls would understand any expressive message from this conduct. See

Johnson, 491 U.S. at 404. The only way for observers to know that the caller means to express

anything by these acts is for the caller to explain it to them; making repeated telephone calls is pure

conduct that must be explained by separate speech. See FAIR, 547 U.S. at 66.

Nevertheless, Appellant argues that intentional harassment constitutes protected speech
 23

because the speaker who intends to harass has a communicative intent. In other words, the speaker’s

intent to harass is an intent to communicate, and, if a speaker intends to communicate, his speech

implicates the First Amendment.

The Supreme Court has “rejected the view that ‘conduct can be labeled ‘speech’ whenever

the person engaging in the conduct intends thereby to express an idea.’” FAIR, 547 U.S. at 65–66

(quoting O’Brien, 391 U.S. at 376). Instead, First Amendment protection extends “only to conduct

that is inherently expressive.” Id. The Supreme Court’s rejection is common sense. If the conduct

is not inherently expressive, then an observer would not know that the conduct is intended to be

expressive regardless of the actor’s subjective intent.

Furthermore, even assuming that a person intending to harass, etc., by engaging in conduct

covered by § 42.07(a)(4) accompanies that conduct with messages stating his intent to harass (“I

want to harass you;” “I am going to harass you;” or “This is me harassing you”), that does not

convert the conduct itself into speech. To the contrary, it remains non-speech conduct accompanied

by explanatory speech. The Supreme Court cautioned that:

If combining speech and conduct were enough to create expressive conduct, a
regulated party could always transform conduct into “speech” simply by talking about
it. For instance, if an individual announces that he intends to express his disapproval
of the Internal Revenue Service by refusing to pay his income taxes, we would have
to apply O’Brien to determine whether the Tax Code violates the First Amendment.
Neither O’Brien nor its progeny supports such a result.

FAIR, 547 U.S. at 66.

It is not difficult to imagine scenarios similar to the tax protestor. For example, assume a

person driving his car on the highway intends to harass another driver. He drives his car aggressively,

tailgates the other driver, quickly passes and cuts off that driver, repeatedly “brake checks,” and, in
 24

the course of doing so, makes several rude gestures and yells several epithets that unmistakably

convey his feelings. The statutes in the Transportation Code governing driving do not become

subject to the First Amendment simply because those driving acts were done to express anger at the

other driver.

And, frankly, we need not even imagine. Would the government’s power to punish the

assassination of the President be subjected to modern First Amendment scrutiny simply because the

assassin accompanied his act with speech (“sic semper tyrannis”)? See John Wilkes Booth Shoots

Abraham Lincoln, History (Nov. 13, 2009), www.history.com/this-day-in-history/john-wilkes-booth-

shoots-abraham-lincoln. Would the government’s power to punish the bombing and destruction of

a federal building, resulting in 168 deaths and the wounding of hundreds more, be subjected to First

Amendment scrutiny simply because the bomber intended to express a message against the federal

government due to their “siege of the Branch Davidians in Waco”? United States v. McVeigh, 153

F.3d 1166, 1177–78 (10th Cir. 1998).

No one would doubt the government’s power to assess taxes or prohibit reckless driving. No

one would say the First Amendment stands to protect Presidential assassinations or allow for the

deadliest act of domestic terrorism in American history. A statute or regulation proscribing non-

speech conduct does not suddenly become subject to First Amendment scrutiny because the actor

accompanies his non-speech conduct with speech.

In sum, we find that Scott was not wrongly decided, and Scott is not unworkable. We

therefore decline Appellant’s suggestion that we overrule Scott, and we reaffirm our holding that on

its face, § 42.07(a)(4), the telephone harassment statute, proscribes non-speech conduct that does not

implicate the protections of the First Amendment.
 25

VIII — § 42.07(a)(7)

As for § 42.07(a)(7), at issue in Appellant’s case, that statute and subsection (b)(1) provide:

(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse,
torment, or embarrass another, the person:

(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.

TEX. PENAL CODE Ann. § 42.07(a)(7), (b)(1).

The gravamen of the § 42.07(a)(7) offense is the sending of repeated electronic

communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass,

or offend another (nature of conduct). See Price, 457 S.W.3d at 441. Based upon the definition of

“electronic communication,” we find that this offense is like the § 42.07(a)(4) repeated telephone

communication offense, and speech is not necessary for commission of the offense. “Electronic

communication” consists of a transfer of signs, signals, writing, images, sounds, data, or intelligence

of any nature. TEX. PENAL CODE Ann. § 42.07(b)(1). To be sure, some of those items, such as a

writing, an image, and a sound, evoke traditional categories of communication. But the statute does

not require the electronic communication to be a writing, an image, or a sound. By the literal text of

the statute, the electronic communication that is sent could be in the form of “data . . . of any nature.”
 26

Id.; see also Boykin, 818 S.W.2d at 785.

The bare fact that data of any nature is sent electronically does not mean that anything has

been expressed. The statute is equally violated by the repeated sending of communications

containing expressive speech as it is by the repeated sending of communications containing no

speech at all. A person intending to harass another could violate the statute by sending several e-

mails containing only the letter “B” (arguably a “writing”) or e-mails containing nothing (some

minimal level of “data”). Or the person could violate the statute by sending computer code (“signals”

or “data”) that would be a readable sequence of machine language understood by a computer but

entirely indecipherable and meaningless to humans. And there is no requirement that the data be

actually usable. Entirely meaningless data understandable by neither man nor machine could just as

well be sent, repeatedly, in a manner reasonably likely to harass, etc., with the specific intent to

harass, etc.

But has anything been inherently expressed by such an act? See FAIR, 547 U.S. at 66. We

think not. There is no likelihood that an observer who views the bare conduct of sending repeated

electronic communication would understand any expressive message from this conduct. See

Johnson, 491 U.S. at 404. An observer may glean, at the most, that the sender wants to send

something to the receiver. The only way for an observer to know that the sender means to express

anything by these acts is for the sender to explain it to them; the repeated sending of some sort of

electronic communication is pure conduct that must be explained by separate speech. See FAIR, 547

U.S. at 66. Accordingly, the electronic harassment statute does not regulate expressive conduct.

Instead, it focuses upon conduct that is not inherently expressive. If there was an intent to be

expressive, the actor would have to provide separate speech accompanying and explaining the
 27

conduct.

In sum, we hold that on its face, § 42.07(a)(7), the electronic harassment statute, proscribes

non-speech conduct that does not implicate the protections of the First Amendment, although

elements of speech may be employed to commit the offense.

VIII — Conclusion: Scott Applies

In conclusion, in Scott, we did not create a new category of speech outside of the protection

of the First Amendment. Instead, we concluded that § 42.07(a)(4), the telephone harassment statute,

regulates non-speech conduct and therefore does not implicate the First Amendment even though

words may be used in the commission of the offense. The same can be said for § 42.07(a)(7), the

electronic harassment statute. On its face, § 42.07(a)(7) does not implicate and does not violate the

First Amendment of the United States Constitution. Whether § 42.07(a)(4) or (a)(7) could implicate

the First Amendment on an as-applied basis, and, if so, whether such application is permissible under

the appropriate standard of scrutiny are questions for another day.29

The judgment of the court of appeals is affirmed.

Delivered: April 6, 2022
Publish

29
See O’Brien, 391 U.S. at 376–77 (providing test for regulations that on their face do not
suppress free expression that nevertheless cause an incidental limitation on speech where speech and
non-speech elements have been combined into the same course of conduct).