When you think of impersonation, the first thing to come to mind might be a mime mirroring a passerby’s inattentive, hurried walk, or an actress in Disneyland dressed as Elsa from Frozen, twirling around with a child. As benign and jovial as this type of impersonation may be, the law correctly recognizes that impersonation has a much darker side.

Traditional criminal impersonation included crimes like posing as another person, using someone’s identification card, or pretending to be a police officer to arrest another civilian. However, society changes and the law must evolve to conform with new norms. For example, as credit and debit cards became a preferred method of payment, Texas criminalized certain conduct such as using another’s credit card as your own without the owner’s consent. Today, the Internet and social media sites are inescapable components of modern society. Approximately 1.9 billion people use Facebook at least once a month and 800 million use Instagram with the same frequency. Because social media sites and blogs identify users by their real or user name, impersonation and other criminal activities have found new waters.

Following these tidal affairs, Texas enacted Penal Code section 33.07, criminalizing certain online impersonation. Texas is not alone in enacting this type of statute, and, like similar statutes in sister states, the Texas statute is frequently litigated. Recently, following the lead of the courts before it, the Waco Court of Appeals in Ex parte Maddison concluded that the statute is not overly broad or vague and therefore does not violate the First Amendment.

Unfortunately, the court failed to recognize the potential impact of its precedent in the Maddison decision and the role the Internet plays in today’s digital society. Not only is Texas’ online impersonation statute unconstitutional, but the Maddison decision highlights a First Amendment workaround that ultimately permits the State to criminalize legitimate conduct, lump protected speech into a pile of improperly criminalized conduct, and ignore the content of the speech.