looking to lose on appeal – s4ll

 Posted on November 26, 2012 in Uncategorized

Is this illegal?

A Splendora woman is facing charges for allegedly posting a personal ad on a classified website for her husband's ex-girlfriend as a joke.Christy Dawn Rash, 35, is facing an online solicitation charge. According to court documents, she's accused of posting the classified on Craigslist earlier this month with the victim's photo and cell phone number.The victim contacted Pasadena police after she says she received several calls from men requesting to have sex with her. Through an investigation, police were able to link the ad to Rash, who is married to the victim's ex-boyfriend.

(More on KTRK.)

Here's the criminal complaint (PDF). The defendant is accused of using the complainant's "name and persona" with the intent to "harm, defraud, intimidate, and threaten" to "post one or more messages on and through an Internet website, namely, Craigslist" without the complainant's consent.

(In Texas, a prosecutor is allowed to plead in the conjunctive-"and"-and prove in the disjunctive-"or." Because Texas appellate courts think prosecutors aren't smart enough to write "or" when they mean "or.")

Here's the relevant portion of the Texas Online Impersonation statute, Texas Penal Code Section 33.07:

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...post...one or more messages on or through a[n]...Internet website, other than on or through an electronic mail program or message board program."

Here's the text of the ad:

looking to get laid – w4mm[ Reply To ]Date: 2012-11-05 09:35:15 EDTI'm a single woman in need of sex. Size or race don't matter looking to do this asap an yes I am real it got up in the 70s today please call or text me either is fine but please hurry. Eight three two seven two five [etc.]

State, you have a bunch of problems here.

Did the defendant use the complainant's "name or persona"? The ad does not include the complainant's name, but includes her gender and telephone number; it can't fairly be said that this is her "persona."

Can you prove that the defendant intended to harm, defraud, intimidate, or threaten the complainant? The defendant said it was "a joke." (I discount KTRK legal analyst Joel Androphy's shallow analysis of this issue. Joel is a really smart lawyer, but he doesn't bring his A game to his media job.)

Is "calls from men requesting to have sex with her" harm? Doesn't that depend on the complainant's character? The defendant says that it shouldn't be a problem because "the victim had given sex away in the past." I am not sure what that signifies, but State, do you really want to go there?

If "calls from men requesting to have sex with her" is harm, is that the sort of harm the statute contemplates?

And if that is the sort of harm the statute contemplates, State, we have the First Amendment problem.

If I had this case, if the State didn't fold, and if the client were willing to spend the time and money to fight it, I would file a pretrial writ of habeas corpus alleging that the statute is unconstitutional. The denial of a pretrial writ of habeas corpus alleging that the statute is unconstitutional as written is one of the things that can be appealed pre-trial. We'd take it up to the First or Fourteenth Court of Appeals, then to the Court of Criminal Appeals and take a shot at getting the Supreme Court to grant cert on Texas's novel limitation on free speech on the Internet.

I am on a tear about this online-impersonation law because a) it looks like a great opportunity for some First Amendment litigation like my online-solicitation litigation, and I want a piece of it, so if you're hired on this case, please bring me in as your law man; and b) it seeks to outlaw political comment like JudgeRubenGuerrero.com.

Incidentally, this case is in Judge Guerrero's court.