Free Speech vs. Criminal Threats Online in Texas

In the digital age, it’s easier than ever to express yourself—but it’s also easier than ever to be charged with a crime because of what you post, tweet, message, or comment. And in Texas, online speech that crosses the line into harassment, threats, or impersonation can quickly become the basis for a criminal charge—even if you thought you were just blowing off steam.

This raises a critical legal and cultural question: Where does free speech end, and criminal conduct begin?

In this post, we’ll explore how Texas courts distinguish protected speech under the First Amendment from criminal threats, harassment, and online abuse, and how this distinction plays out in real-world prosecutions. We’ll also explain what happens when someone is arrested for things they said online—and how we defend clients facing those charges.

If you’re under investigation or already charged because of something you posted online, you do have rights—but you’ll need a clear legal strategy to protect them.

The First Amendment and Online Speech

The First Amendment to the U.S. Constitution guarantees the right to freedom of speech, including:

• Criticism of government or public figures
• Political and social commentary
• Religious and artistic expression
• Offensive, unpopular, or emotionally charged speech

But that right is not absolute. There are several narrow categories of speech that are not protected, including:

• True threats of violence
• Obscenity and child pornography
• Incitement to imminent lawless action
• Defamation and libel
• Fraud or deceptive speech
• Fighting words or speech integral to criminal conduct

Online communication can easily cross into these unprotected categories—especially when directed at a specific person.

Texas Laws That Criminalize Online Speech

Texas doesn’t criminalize free speech—but it does prosecute specific conduct involving communication that is intended to:

• Harass
• Threaten
• Embarrass
• Defraud
• Intimidate

The most commonly used statutes include:

• Texas Penal Code § 42.07 – Harassment
• Texas Penal Code § 42.072 – Stalking
• Texas Penal Code § 33.07 – Online Impersonation
• Texas Penal Code § 21.16 – Unlawful Disclosure of Intimate Visual Material (Revenge Porn)
• Texas Education Code § 37.0832 – David’s Law (Anti-Bullying Statute)

These laws are explained in depth in cluster posts like Understanding Online Harassment Charges in Texas, What Qualifies as Cyberstalking in Texas?, and Online Impersonation and Fake Profiles.

The “True Threat” Doctrine

The key legal standard in many online threat cases is the concept of a “true threat.”

The U.S. Supreme Court defines a “true threat” as a statement meant to communicate a serious expression of intent to commit an act of unlawful violence against a particular individual or group.

In 2023, the Court ruled in Counterman v. Colorado that for online threats to be criminal, the speaker must be aware that their statements would be viewed as threatening—a ruling that provides stronger First Amendment protection, especially in digital communication.

But Texas courts may still prosecute online threats when:

• Messages contain specific, credible threats of violence
• Victims experience real fear or emotional distress
• The speaker shows a pattern of escalating behavior or obsession
• The statements are accompanied by doxing, impersonation, or stalking behavior

Real Examples of Speech Becoming Criminal

Criminal:

• “I’m going to shoot up your house tonight. Watch your back.”
• “Your kids go to [insert school]. I’m coming for them.”
• “Here’s their address—someone go teach them a lesson.”
• Posting nudes or intimate videos without consent
• Pretending to be someone else and messaging their coworkers

Possibly Protected:

• “You’re a liar and everyone should know it.”
• “I hope something bad happens to you.”
• Sarcastic or hyperbolic statements without specific threats
• Exposing public behavior or misconduct (e.g., sharing public tweets or videos)

Even speech that feels abusive or cruel is not always criminal. The intent and context of the communication are critical to any legal analysis.

Can You Be Arrested for a Tweet or Text?

Yes. Many online speech cases begin with:

• A victim reporting harassment or threats to police
• Law enforcement subpoenaing Twitter, Facebook, or Google for records
• Investigators linking messages to your IP address or device
• Prosecutors filing charges under Texas harassment or stalking laws

See How to Respond If You’re Accused of Cyberbullying for step-by-step guidance on what to do next.

If federal agencies become involved—especially in cases involving public officials, cross-state conduct, or threats of mass violence—federal charges may also apply.

For more, visit What Happens If the FBI Seizes Your Computer?

How We Defend Free Speech Cases

At David Smith Law Firm, PLLC, we defend clients who have been accused of making threats, harassing others online, or impersonating someone on social media by focusing on:

1. Challenging the Intent Element

Prosecutors must prove you intended your words to be perceived as threatening or harassing. If the message was vague, satirical, or taken out of context, that defense may apply.

2. Establishing Context and History

We show the full conversation—not just the prosecution’s excerpts. Often, a “threatening” message is part of an ongoing mutual dispute or relationship.

3. Demonstrating First Amendment Protection

If the speech involves political commentary, satire, opinion, or rhetorical hyperbole, it may be constitutionally protected—even if it’s offensive or emotionally charged.

4. Disproving the Alleged Victim’s Reaction

The prosecution must prove that a reasonable person would view the message as a true threat—not just that the alleged victim was upset.

5. Suppression of Illegally Obtained Digital Evidence

We examine whether police violated your Fourth Amendment rights in seizing your phone, emails, or account data.

See Case Study: Computer Crime Charges Beaten in Houston for an example of how careful legal work dismantled a case built on digital evidence.

What to Do If You’re Under Investigation

If you’ve been:

• Reported for a threatening message or social media post
• Contacted by police or a school resource officer
• Named in a protective order
• Served a subpoena or warrant for your online accounts

Do not talk to law enforcement without a lawyer present.

• Don’t explain yourself
• Don’t apologize or “clear the air” with the alleged victim
• Don’t delete your posts or accounts
• Don’t post about the situation publicly

Preserve everything and call an attorney who understands Texas criminal law and digital speech cases.

Final Thought: You Still Have Rights—Even Online

Texas law takes digital threats and harassment seriously—but not every online statement is a crime. If you’re facing charges because of something you said online, don’t give up your First Amendment rights without a fight.

At David Smith Law Firm, PLLC, we defend clients across Texas in cybercrime cases where speech, emotion, and digital communication collide. David is board-certified in criminal law, a former felony prosecutor, and a skilled defender of cases involving online threats, harassment, and impersonation.

**Call (713) 769-5000 or schedule your confidential consultation at https://appointment.davidsmith.law/#/Schedule. We’ll help you draw the line between free speech and criminal allegations—and fight to keep you on the right side of it.