Online Solicitation of a Minor Statutes and Free Speech

By:  Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

In 2005 the Texas Legislature enacted Article 33.021, Texas Penal Code, which prohibits “sexually explicit” communications between someone who is 17 years or older and someone who “represents himself or herself to be younger than 17 years of age.” Some respected legal bloggers have opined that such online sexually explicit “communications” may violate the First Amendment’s guarantee of free speech.

Existing case law, however, indicates this will be a difficult constitutional violation to establish. A First Amendment challenge to a criminal statute must be based on two established constitutional doctrines: overbreath and vagueness. First, “the overbreath doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002).

Although similar, the vagueness doctrine is not identical to the overbreath doctrine. A criminal statute runs afoul of the First Amendment for vagueness if it “forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application.” See: Connally v. General Constr. Co., 269 U.S. 385, 391 (1926)

The issue of whether § 33.021 violates either doctrine has not been addressed by either the Texas Court of Criminal Appeals or the federal courts. But it should be pointed out that § 33.021 is similar to 18 U.S.C. § 2422(b) which prohibits:

(b) Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

§ 2422(b) prosecutions primarily involve adults trying to solicit minors online to engage in prohibited sexual activity. Often the “minor” in the case is a state or federal law enforcement officer representing himself or herself as a minor. The federal courts have uniformly rejected all First Amendment challenges to § 2422(b). For example, the Third Circuit Court of Appeals in United States v. Tykarsky, 446 F.3d 458 (3d Cir. 2006) addressed the issue by saying:

“Section 2422(b) is not overbroad. There is no First Amendment right to persuade minors to engage in illegal sex acts. United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000); United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 200) (‘Speech attempting to arrange the sexual abuse of children is no more constitutionally protected than speech attempting to arrange any other type of crime.’). Section 2422(b) regulates only conduct, not speech. As the Court of Appeals for the Ninth Circuit observed in United States v. Meek: ‘No otherwise legitimate speech [is] jeopardized by § 2422(b) because the statute only criminalizes conduct, i.e., the targeted inducement of minors for illegal sexual activity. . . . [S]peech is merely the vehicle through which a pedophile ensnares the victim.’ 366 F.3d at 721. Moreover, ‘the scienter and intent requirements of the statute sufficiently limit criminal culpability to reach only conduct outside the protection of the First Amendment.’ United States v. Dhingra, 371 F.3d 557, 561-62 (9th Cir. 2004) (observing that a family planning provider could not be prosecuted under § 2422(b) unless it knew that it was persuading minors to engage in illicit sexual conduct). Accordingly, § 2422(b) is not overbroad.

”Albeit a closer question, we also conclude that § 2422(b) is not unconstitutionally vague. Although § 2422(b) does not define the terms ‘persuade,’ ‘induce,’ ‘entice’ and ‘coerce,’ they ‘have a plain and ordinary meaning that does not need further technical explanation.’ Id., at 562; see also Batsell v. United States, 403 F.2d 395, 399 (8th Cir. 1968) (‘The word “induces” in § 2422 is one of common usage and meaning and requires no explanation or definition.’). To be sure, there may be a certain degree of imprecision around the edges of these terms, such as where the line between mere ‘asking’ and ‘persuading’ is drawn. But any ambiguity in § 2422(b) is no greater than that found in many criminal statutes. These terms are sufficiently precise to give a person of ordinary intelligence fair notice as to what is permitted and what is prohibited and to prevent arbitrary and discriminatory enforcement. See Graynard v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (observing that fair warning and the prevention of arbitrary enforcement are two of the most important values offended by vague laws). Moreover, the absence of definitions for these terms poses no danger of chilling legitimate speech. The statute’s scienter requirement clarifies the law and excludes legitimate activity, including pure speech, from its scope. Dhingra, 371 F.3d at 562; United States v. Panfil, 338 F.3d 1299, 1301 (11th Cir. 2003) (‘[Section 2422(b)’s] scienter requirement discourages “unscrupulous enforcement” and clarifies § 2422(b)’); see also United States v. Loy, 237 F.3d 251 (3d Cir. 2001) (‘[I]n some situations, a scienter requirement may mitigate an otherwise vague statute[.]’). We therefore conclude that § 2422(b) is not impermissibly vague.” Id., at 473. See also: United States v. Schaefer, 2008 U.S. Dist. LEXIS 44571 (U.S.S.D.N.Y. June 2, 2008)[§ 2422(b) is not facially unconstitutional under the First Amendment, citing Tykarsky with approval]; United States v. Gagliardi, 506 F.3d 140, 148 (2d Cir. 2007) [also following the Tykarsky lead.]

Will a First Amendment challenge to Texas’ § 33.021 will meet the same fate as the § 2422(b) challenges. The issue is quite simple: is there a “free speech” protection when a person 17 years or older engages “sexually explicit” communications with a real person who is under 17 years of age or even a person who is actually 17 years or older but represents himself or herself to be under 17 years of age, such as a law enforcement officer?

Criminal statutes such as § 33.021 and § 2422(b) were enacted not so much as to punish prohibited conduct but rather to prevent actual prohibited conduct; specifically, to prevent adults from using the Internet to persuade, entice or encourage minors into prohibited sexual activity.

As a result Congress and the federal courts have made one thing abundantly clear: adults do not have a constitutionally protected right or constitutionally inherited freedom to use the Internet to engage in any kind of sexually explicit communications with a person who represents himself or herself to be a minor [under the age of seventeen in Texas].

The Internet was created to be an “information highway.” But it has morphed into a world of “virtual” reality. More often than not, nothing is what it seems or appears on the Internet – not even persons representing themselves to be a minors willing to engage in sexual activity with adults. Law enforcement and intelligence communities are now patrolling nearly every nook n’ cranny of the Internet in search of pedophiles, human traffickers, drug dealers, contract killers, terrorists, illegal gamblers, steroid hunters, child pornographers, bestiality pursuers, and a host of other people looking to engage in unlawful activity.

In reality, the Internet is no longer solely a highway for information but a investigative vehicle for the government to drive directly into your personal world, including your bedroom. This tragic result was brought about because the Internet has been corrupted by those, as the axiom says, “with larceny in their hearts”, and the courts are not a receptive venue for establishing constitutional protections on what was once the “information highway.”

And that is why § 33.021 will most likely survive the inevitable First Amendment challenges.

By:  Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair