In Cohen v. California the U.S. Supreme Court said:

The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.

That the government can shut off discourse to protect others from hearing it if substantial privacy interests are being invaded in an essentially intolerable manner is mere dicta.¹ While the Supreme Court has quoted that language since 1971 in cases invalidating speech-restricting statutes, it has not, in the forty-two years since Cohen, upheld a speech-restricting statute based on this theory.

In other words, while it has invalidated numerous statutes that restricted speech that did not invade on substantial privacy interests in an essentially intolerable manner, the U.S. Supreme Court has never upheld a statute because it restricted such speech.

New York’s Appellate Term, Second Department in People v. Smith, and the Texas Court of Criminal Appeals in Scott v. State, have.

The New York statute at issue in People v. Smith, Penal Law, § 240.30, subd 2, forbids “mak[ing] a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication,” “with intent to harass, annoy, threaten or alarm.”

The Texas statute at issue in Scott v. State, Section 42.07(a)(4) of the Texas Penal Code, is worse, forbidding “mak[ing] repeated telephone communications…in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass or offend,” “with intent to harass, annoy, alarm, abuse, torment, or embarrass.”

Both Smith and Scott based their justifications of the speech restrictions on Cohen v. California’s “essentially intolerable manner” language.² When these courts upheld their respective statutes they upheld every part of them. So they held that “torment” is essentially intolerable, which might be fair, but also that annoyance, embarrassment, and offense are essentially intolerable.

If the Texas Court of Criminal Appeals is right, Texans can’t tolerate annoyance, embarrassment, or offense. Which is ridiculous. Tolerating these things is part of being a grownup. Annoyance, embarrassment, and offense are legitimate and potent rhetorical and political weapons.³ In fact, the U.S. Supreme Court has explicitly affirmed the protected status of embarrassing speech,⁴ annoying speech,⁵ and offensive speech.⁶

So Mr. Scott appealed to the U.S. Supreme Court, right? And the Supremes struck down the statute? Sadly, no. The lawyer who appealed the case to the Court of Criminal Appeals appealed to the Supreme Court, which denied certiorari. The denial of certiorari is not approval of the underlying court’s opinion. The Supreme Court can’t be blamed for denying cert—the Scott opinion is muddled.⁷ But now every defendant charged with violating Section 42.07 is hindered by a Court of Criminal Appeals opinion holding the statute constitutional. Until the U.S. Supreme Court overturns some other state’s annoying–embarrassing–or–offensive harassment statute or a Texas lawyer makes the leap from intermediate court of appeals to Supreme Court, Texas courts will keep enforcing the statute.

The Supreme Court could eventually uphold such statutes—possibly the requirement that the communications be made repeatedly (more than once?) and over the telephone will save this manner-and-means restriction from unconstitutionality under the “intermediate scrutiny” standard of review.⁸ But not for the reasons used by the Court of Criminal Appeals—not because telephone communication is not “communication,” and not because embarrassment, annoyance, and offense are essentially intolerable, either to Texans or to anyone else.

1. Mere dicta, or just dicta, is something in a court opinion that was not necessary to the decision of the case. [↩]
2. Scott also based its justification on the notion that harassment, annoyance, alarm, abuse, torment, embarrassment, and offense are not “communication,” which is funny given that the statute forbids telephone communications. [↩]
3. “The squeaky wheel gets the grease”? That’s annoyance at work. [↩]
4. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982) (“Speech does not lose its protected character … simply because it may embarrass others or coerce them into action”). [↩]
5. Norwell v. Cincinnati, 414 U.S. 14 (1973). [↩]
6. Carey v. Population Services Int’l, 431 U.S. 678, 701 (1977). [↩]
7. Perhaps because the case was poorly briefed: “On direct appeal, Scott reiterated the arguments that he had made in the trial court. In addition, he argued, for the first time, that: (1) § 42.07(a)(4) and (a)(7) were both unconstitutionally vague as applied to his conduct (although he failed to explain how they were unconstitutionally vague as applied to his conduct); and (2) § 42.07(a)(4) and (a)(7) were both unconstitutionally vague and overbroad because the terms ‘abuse,’ ‘torment,” ’embarrass,’ and ‘repeated’ included in those statutory subsections were ‘inherently vague.'” [↩]
8. Under intermediate scrutiny, the State must show that the law being challenged furthers an important government interest in a way that is substantially related to that interest. [↩]