Q: Can I be charged with defamation of character or harassment in this situation?
I got into a social media dispute with an old friends mother. We had a few pretty mild words in Facebook comments and then I blocked her. She then proceeded to text me racial slurs on Snapchat through her daughters Snapchat. I screenshot those texts and later posted them on several social media platforms as well as with a screenshot of her Facebook profile. I spread NO FALSE INFORMATION ABOUT HER. I simply stated what happened and provided screenshots on various social media platforms. I then informed her employer of the situation and what she had called me. Throughout the day I went back and forth with her daughter through text. I left the situation alone at the end of the day. Today I get a text saying that if I don’t take my posts with the screenshots of what she said down…they will file harassment and defamation of character charges…seeing as though I spread no false information and that I did not in anyway reasonably make them feel threatened…would they really have a case?
A: Truth is a defense. She could hire a lawyer and sue you. You could win if you can prove everything said was true
Texas has a criminal Harassment statute that might apply, because a threat is not required. Making the other person feel "emotional distress" is enough. That said, Texas has no criminal charge for defamation of character because that is a tort (i.e. a civil matter, not criminal.) Try to remember exactly what they really said because if they threatened defamation "charges" then they're ill-informed on Texas criminal law... and perhaps bluffing.
Consider turning it around on her... if she sent racial slurs then she was committing the crime of Harassment against YOU!
Anyway, the facts that describe could be a basis fort a Harassment charge against you under either Penal Code 42.07(a)(7) or 42.07(a)(8) which read:
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; or
(8) publishes on an Internet website, including a social media platform, repeated electronic communications in a manner reasonably likely to cause emotional distress, abuse, or torment to another person, unless the communications are made in connection with a matter of public concern.
At the other attorney mentioned, TRUTH is a defense to defamation of character. However, it is not a defense against the crime of Harassment. The reason for this is that the Harassment statute is designed to punish CONDUCT rather than SPEECH. For example, the prohibited conduct in 42.07(7) is REPEATEDLY sending messages. A message could be 100% positive like "You're a nice person!" but if you send that sort of message 100 times it would be really annoying invasion into a person's right to enjoy their private time, even if the content of the message is true and you phrased it in 100 different ways. The Texas Court of Criminal Appeals affirmed this reading of the statute just today in a trio of opinions: PD-0469-19, PD-0478-19, and PD-1123-19. They have previously ruled that "repeatedly" means two or more occasions. Zealous prosecutors will even go so far as to charge felony Stalking when there are four or more messages on the theory that two are required for Harassment and two instances of Harassment can be prosecuted as Stalking.
If you do get charged with Harassment or Stalking, your best hope would probably be an "as applied" writ right at the beginning of the case. This option is left open by the opinion in PD-1123-19. However, there are very few criminal defense attorneys who are prepared to do a good job of this because (1) this issue almost never comes up, and (2) there is a bunch of applicable First Amendment case law that is not easy to follow. If you decide to go that route, it would be wise (but expensive) to consider hiring one of the attorneys who handled those cases decided today... even though they lost today's decisions. Attorneys don't make the facts and appellate attorneys are constrained by the record left by the trial attorney. So, if you really want to challenge the constitutionality of this law, it would be wise to have an appellate attorney in your corner from the very beginning.
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