People use online as a forum for free speech. Sometimes, people use satire to make points. Unfortunately, Texas law, limits a person’s ability to express themselves online. The creation of a profile for another person may be a crime. It could be prosecuted as online impersonation. The craziest part is that this offense might be a felony.
First Amendment Issues
Not every case is going to present a first amendment issue. We live in a world where people start fake twitter accounts for celebrities and public figures as a means to make a satirical point. Free speech is a vital part of our country. It is one of our founding principles. This type of speech may not be favored, but it is still important. Could a celebrity like Taylor Swift seek the prosecution of an individual for the @feministtswift twitter page? Or in the upcoming election, could a politician seek to prosecute someone for starting a satirical twitter or facebook page because the page runner wanted to cost them votes? These questions make this offense very troublesome.
Online Impersonation is outlawed by section 33.07 of the Texas Penal Code. The State has to prove that:
Without obtaining the other person’s consent;
With the intent to harm, defraud, intimidate, or threaten any person;
Uses the name or persona of another; and
To create a web page on a commercial social networking site or other internet site or to post or send one or more messages on or through a commercial social networking site or other internet website, other than on or through an electronic mail program or message board.
This offense is punishable as a third degree felony, which is punishable by 2 to 10 years incarceration and $10,000.00.
It online impersonation could also be charged another way.
Sends an electronic mail, instant message, text message, or similar communication;
That references a name, domain address, phone number, or other item of identifying information belonging to any person;
Without obtaining the person’s consent;
With the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and
With the intent to harm or defraud any person.
This offense is punishable as a Class A misdemeanor and is punishable by up to one year in jail, a fine not to exceed $4,000.00, or both. However, if the actor commits the offense with the intent to solicit a response by emergency personnel, the offense is third degree felony, which is punishable by 2 to 20 years incarceration and $10,000.00.
Online impersonation cases may be hard to prove. The state often will rely upon the technical data from computers and cell phones. These cases can be complex. The technical data is critical to the State, so a lawyer that can understand this information is just as critical. Call Brian J. Newman at 817-231-0023 to discuss your case. Analyzing the technical data, and the possible constitutional issues takes time. If you have been charged with online impersonation, time may be critical.