By Texas Criminal Defense Lawyer Jeremy Rosenthal
Texas laws on cyberbullying are somewhat smattered in different places. Some laws are civil and could result in being sued, other infractions may result in school discipline and others are actually criminal.
Harassment or stalking is what most people would consider cyberbullying behavior but online conduct aimed at demeaning, harming or threatening others and may take a variety of forms.
The Texas legislature has tried to address cyberbullying in criminal contexts but – there are balances with the first amendment and there is always the problem of keeping up with the ever-changing technological and social norms.
How the Education Code Defines Cyberbullying:
“Cyberbullying” means bullying that is done through the use of any electronic communication device, including through the use of a cellular or other type of telephone, a computer, a camera, electronic mail, instant messaging, text messaging, a social media application, an Internet website, or any other Internet-based communication tool.
It’s extremely important to remember, though, the Texas Education Code doesn’t make cyberbullying a crime. It only gives school authorities enhanced abilities to deal with the problem. The reason for this approach is likely the First Amendment which makes it more difficult for the government to actually punish someone for speech or a communication.
How the Penal Code Defines Cyberbullying:
Texas Harassment statute (Texas Penal Code 42.07) was intended to protect against cyberbullying and it reads (in relevant part),
(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:
(1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene;
(2) threatens, 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 the person’s family or household, or the person’s property;
(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 through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine;
This law makes it a class a misdemeanor under 42.07(a)(7) punishable up to 1 year in the county jail and a fine not to exceed $4,000 if the victim is under 18 and the conduct attempt to get the child to either harm themselves or commit suicide. Otherwise it is a class b misdemeanor punishable by 180 days of jail and up to a $2,000 fine.
Defending Cyberbullying Charges
There is always the first amendment – but not many folks want to take their case all the way up to the Supreme Court. The First Amendment guarantees the government cannot stop people from free communication and expression. There are, of course, limits to free speech. The textbook example is you can’t yell “fire” in a movie theater.
Intrinsic to the statute is the bullying needs to be “reasonably” likely to cause the alarm sufficient to convict. This just means the criminal charges have to pass the smell test – though allowing a jury to debate an issue like this can be scary.
Juvenile Courts and Cyberbullying
Also many cyberbullying cases take case in juvenile courts who have jurisdiction over offenders who are younger than 17 years old. Those courts tend to take more of a collaborative or therapeutic approach to curb future behavior.
*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization. He is recognized as a Texas Super Lawyer by the Thomson Reuters.