The attorney representing Big Bend Times publisher David Flash has filed a motion to dismiss the Class B misdemeanor harassment charge pending against him in Jeff Davis County, arguing the criminal statute at issue is facially unconstitutional and that the case infringes on Flash’s First Amendment rights.
In the 35-page motion, defense attorney Shane O’Neal argues that Texas Penal Code § 42.07(a)(4) “facially violates the First Amendment by proscribing protected speech.” He further asserts that the law is “overly broad, regulating a substantial amount of protected speech, and thereby chilling that speech,” and that it is “too vague to be constitutionally applied.”
The criminal charge alleges Flash violated the statute by making “repeated telephone communications … in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another,” specifically Judge Mary Ann Luedecke. According to the motion, this third prong of the statute—focused on manner—is the only basis for the charge, not the alternative methods of “causing the phone to ring repeatedly” or “making anonymous calls.”
O’Neal’s motion cites recent U.S. and Texas court rulings to argue that the statute, as applied here, impermissibly targets speech rather than conduct. He draws particular attention to Counterman v. Colorado, in which the U.S. Supreme Court held that a Colorado harassment statute covering “repeated communications” required a mens rea element to avoid chilling protected speech. The motion also cites Owens v. State, a 2025 decision by the Texas Court of Criminal Appeals, where the court held that when prosecution under § 42.07 is based on the content of the messages, it violates the First Amendment.
The motion explains that “[s]peech that annoys another person is clearly not a true threat of violence,” and argues that under Counterman, “the Supreme Court implicitly rejected the holding in Barton and Sanders that repeated communications can be considered noncommunicative conduct, not speech.”
Citing Owens, the motion quotes the Court of Criminal Appeals as holding that a prosecution is unconstitutional when “the content of the messages, not the manner of their sending,” is the basis of the charge. “[T]he prosecution violates the First Amendment,” the opinion explains, when it is based on a person’s “speech,” not just “actions.”
The defense further argues that because the state has only alleged the third kind of violation under the statute—communications in a manner likely to harass—it cannot later attempt to prove the other two prongs. Doing so, the motion argues, would constitute a constructive amendment of the charging instrument, which is barred under federal law.
Additionally, the motion notes that the Fifth Circuit has previously found terms like “annoy” and “alarm” unconstitutionally vague in similar statutes, citing Kramer v. Price, and argues that “the terms ‘embarrasses’ and ‘offends’” similarly lack clarity.
Ultimately, O’Neal writes that “§ 42.07(a)(4) criminalizes speech that annoys, alarms, embarrasses, and offends” and is therefore “both unconstitutionally overbroad and vague.”
A hearing on the motion to dismiss has not yet been scheduled. Flash, who was charged in April 2024, has denied the allegations and says the case is part of a broader pattern of retaliation by local officials. Public records reviewed by Big Bend Times show that Judge Luedecke—who is named as the alleged victim—previously directed courthouse staff to post a notice barring Flash from accessing public buildings, despite no valid legal authority or court order authorizing such action.
