First Amendment Defense in Stalking Cases

Evidence Types in Stalking Cases

First Amendment Defense to Stalking prosecutions rely heavily on electronic evidence: text messages, social-media posts and direct messages, email, location data, surveillance video, and phone records. The defense's foundation work in a First Amendment defense to a stalking charge is rigorous review and authentication of every piece of evidence the State intends to use.

Counsel should request preservation letters and discovery for the complete communication record — not just the messages the State has highlighted. Selective excerpts often misrepresent the full course of communication. Where the defendant and complainant exchanged hundreds of messages, the prosecutor's curated selection of 10 to 20 messages may strip away context that supports the defense.

Cell-site location data, third-party application records (Snapchat, Instagram, WhatsApp), and ISP records are all subject to preservation deadlines that run quickly. Counsel should serve preservation letters within days of taking the case, and should issue subpoenas where the defense is entitled to do so. Late-preserved evidence may be permanently lost.

Protective Order Overlap

First Amendment Defense to Stalking matters often coincide with civil protective-order proceedings under Texas Family Code Chapter 85 or Code of Criminal Procedure Chapter 7B. The protective-order hearing typically occurs within weeks of the filing — long before any criminal case proceeds to trial. The defense's approach to the protective-order hearing affects the criminal case in important ways.

For a First Amendment defense to a stalking charge, statements made by the defendant at the protective-order hearing can be used in the criminal case. The protective-order hearing's evidentiary rules are more relaxed than the criminal trial's. The standard of proof is lower (preponderance vs. beyond reasonable doubt). The defendant may face the choice between testifying to defeat the protective order and preserving silence to protect the criminal defense.

Counsel should coordinate the protective-order defense with the criminal defense from the start. In some cases, agreeing to a limited protective order may be preferable to a contested hearing that creates a record harmful to the criminal case. In others, contesting the protective order vigorously may produce a no-finding outcome that supports the criminal defense at trial.

First Amendment Framework for Stalking Statutes

Stalking statutes face First Amendment scrutiny because they regulate speech and expressive conduct. Texas Penal Code §42.072 has been upheld against First Amendment challenges in multiple decisions. The court applies intermediate scrutiny because the statute regulates conduct rather than the content of speech.

The Supreme Court's decision in Counterman v. Colorado, 600 U.S. 66 (2023), addressed the mens rea standard for true threats. The Court held that the State must prove the defendant had at least some subjective understanding of the threatening nature of the statements; pure objective standards violate the First Amendment.

The Counterman framework affects stalking cases involving alleged threats. The State must prove the defendant's subjective awareness that the statements were threatening. Negligence is not sufficient; the defendant must have had at least recklessness about the threatening nature.

Protected Versus Unprotected Speech

Some speech is unprotected by the First Amendment. True threats, fighting words, and speech integral to criminal conduct (such as solicitation) fall outside First Amendment protection. Speech that constitutes harassment or that creates substantial emotional distress may also be regulated.

The defense workflow examines whether the conduct charged falls within the unprotected categories. True threats require subjective awareness under Counterman. Fighting-words doctrine has been narrowed over time and rarely applies to online communications. Speech-integral-to-conduct requires the speech to be inseparable from criminal conduct, not merely accompanying it.

Where the conduct involves political speech, social commentary, or criticism of public figures, the First Amendment protection is at its strongest. The defense should examine whether the conduct addressed matters of public concern. Where it did, the First Amendment scrutiny is most rigorous.

Where the conduct involved private communications between specific individuals, the First Amendment analysis is different. Private speech receives less protection than public speech, particularly where it constitutes harassment.

Texas Stalking Statute Precedent

Texas appellate courts have addressed First Amendment challenges to §42.072 in multiple cases. The Texas Court of Criminal Appeals has generally upheld the statute against facial challenges. As-applied challenges remain available in specific cases where the conduct involved protected speech.

The Texas Court of Criminal Appeals in Ex Parte Nuncio, 2022 Tex. Crim. App. LEXIS 234, addressed §42.07 (harassment) and found subsection (a)(1) unconstitutional as content-based regulation of speech that could not survive strict scrutiny. The holding may affect stalking cases that rely on harassment-based course of conduct.

Defense workflow includes briefing the controlling Texas precedent on First Amendment challenges. The specific subsections of §42.072 and the specific conduct alleged may produce different First Amendment analysis. Counsel should examine each element of the State's case against the controlling precedent.

Practical First Amendment Defense

Mounting a First Amendment defense requires careful development of the legal framework and the factual record. The defense should brief the First Amendment issues thoroughly, develop the factual record supporting the speech-protective interpretation, and preserve the issues for appellate review.

Pretrial motions to dismiss or to quash can raise the First Amendment issues before trial. Where the conduct involved clearly protected speech, the motions can produce dismissal. Where the conduct is mixed, the motions can narrow the State's case to the unprotected portions.

At trial, the defense can present evidence and argument about the protected nature of the conduct. Where the State's evidence includes protected speech alongside potentially unprotected conduct, the defense can emphasize that the protected portion cannot support liability.

Appellate preservation is critical. The First Amendment issues should be raised specifically at trial through objections, motions, and proposed jury instructions. Failure to preserve issues at trial limits appellate review.

Practical Checklist

• Document everything early. Communications, records, and witness contact information lose value as time passes. Preserve them at the start of the case.
• Identify all parallel proceedings. Criminal, administrative, civil, and regulatory tracks often run in parallel. A statement in one becomes evidence in another. Map the full picture before any disclosure.
• Calendar every deadline. Filing deadlines, response deadlines, discovery deadlines, and hearing dates all have consequences. Missing a deadline can foreclose defenses that the facts otherwise support.
• Build the mitigation package early. Witness letters, treatment records, employment verification, and character references take time to gather. Counsel should begin building the package at the first consultation, not as the hearing approaches.
• Coordinate counsel across forums. Where the matter implicates multiple proceedings, having coordinated counsel (whether one firm or multiple firms in close communication) avoids the strategic errors that inconsistent representation creates.
• Understand the public-record dimension. Many dispositions create searchable records that follow the licensee, defendant, or respondent for years. The decision to contest versus resolve must account for the public visibility of each path.

For a confidential evaluation of your matter, call L&L Law Group at (972) 370-5060 or email info@landllawgroup.com. Initial consultations are free.