The Texas Court of Criminal Appeals (TexCrimApp) this past October upset district attorneys and “tough on crime” legislators throughout the state when it declared a key provision of the state’s “Online Solicitation of a Minor” statute unconstitutional. Texas Penal Code § 33.021(b)(1) specifically criminalized any online communications with a minor “in a sexually explicit manner.” For the purpose of this statute, a “minor” is defined as a person who either represents himself or herself to be younger than 17 years of age or is believed to be younger than 17 years of age.


§ 33.021 was enacted in 2005. The legislative intent of the statute was to provide law enforcement with a means to stop child sex predators before they had an opportunity to meet or injure a child. The TexCrimApp said “it is directed against those who ‘engage in conversations over the Internet with the intent of meeting a minor for sexual activities.’” Subsection (b) (1) of the statute made it a third-degree felony to talk in what the TexCrimApp described as a “salacious” manner whose intent [is] to “arouse or gratify anyone’s sexual desires.” The court added that it did not “require that the actor ever have any intent to meet the minor for any reason.”


Put simply, the Legislature criminalized any kind of “dirty talk” over the Internet between an adult and a minor. The problem is that the legislature neglected or deliberately failed to define “sexually explicit communications.” While the State has an indisputable “compelling interest” in protecting children from sexual predators, there was absolutely no need for Subsection(b)(1) because, as the TexCrimApp  pointed out, there were already more precise statutes prohibiting the conduct proscribed in this subsection. These statutes included prohibitions against “obscene communications and materials;” “harmful or obscene materials” as to minors that appeal to the “prurient interest in sex, nudity, or excretion;” and child pornography.


Thus, the question squarely before the TexCrimApp was whether indecent sexual expression that is not “obscene” is protected by the First Amendment. While Subsection (b) (1) covered what the court said was “a whole cornucopia of ‘titillating talk’ or ‘dirty talk’,” it also covered the following sexually explicit literature identified by the court as: “Lolita,” “50 Shades of Grey,” “Lady Chatterly’s Lover,” and Shakespeare’s “Troilus and Cressida.”  It also covered the following television shows, movies and performances: Miley Cyrus’s “twerking” during the 2013 MTV Video Music Awards; Janet Jackson’s “Wardrobe Malfunction” during the 2004 Super Bowl; “The Tudors;” “Rome;”


“Eyes Wide Shut;” and “Basic Instincts.” It also covered the following sexually explicit art: “The Rape of the Sabine Women;” Venus De Milo;” “The Naked Maja;” or Japanese Shunga.


In other words, an adult repeating over the Internet “sexually explicit” language used on CBS’s “Two Broke Girls” to a minor could constitute a violation of Subsection(b)(1). The TexCrimApp found this subsection violated what is known as the First Amendment “overbreadth doctrine.” This doctrine bars a State from restricting “constitutionally protected speech on the basis that such restrictions are necessary to effectively suppress constitutionally unprotected speech, such as obscenity, child pornography, or the solicitation of minors.”


Lawful speech often resembles, even mimics unlawful speech, but this does not make it a crime. The Supreme Court in 1973 held this constitutional rule reflects the reasoning that “[t]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted.”


Following the lead of the Supreme Court, the TexCrimApp put it this way: “… a ban upon constitutionally protected speech may not be upheld on the theory that “law enforcement is hard,” and the State may not punish speech simply because that speech increases the chance that “a pervert” might commit an illegal act “at some indefinite future time.”


To shore up the TexCrimApp’s finding that § 33.021(b) (1) is unconstitutional, the appeals court said “everything” in that subsection prohibits and punishes speech which is either constitutionally protected or already prohibited by other laws. The court recognized the State’s right, even duty to protect children from sex predators. The TexCrimApp pointed out that many states have statutes which prevent the dissemination of “harmful” materials to minors and their solicitation over the Internet. These statutes have all survived judicial scrutiny under First Amendment challenges. These statutes, however, differ from § 33.021(b)(1) in two ways: First, their definition of the banned communication mirrors the definition of obscenity set forth by the Supreme Court; and, second, they include a “specific intent to commit an illegal sex act” with a minor.


The State relied upon these statutes, and the cases upholding their constitutionality, to defend § 33.021(b))(1). The TexCrimApp was not buying it, saying: “ … None of them deal with non-obscene, non-solicitative, non-pornographic, non-harmful-to-minors sexually explicit communications to minors.” Only two other states, New Mexico and Virginia, enacted statutes that tracked § 33.021(b(1)) and both were struck down by federal courts as being “unconstitutionally overbroad.”


These decisions are consistent with the Supreme Court’s line of precedents upholding state laws prohibiting the dissemination of “obscene” material to children but striking down those prohibiting either the communication or dissemination of material that is simply “indecent” or “sexually explicit.”


The TexCrimApp  noted that while § 33.021(b)(1) “may” protect children from a “suspected” predator before he ever expresses “any intent to commit illegal sexual acts,” the subsection nonetheless overreached because it criminalized a “vast array of constitutionally protected speech.” The State argued this was necessary to target and prevent “grooming” by sex predators. The TexCrimApp rebuffed that proposition, saying “we are unable to find anything in the 2005 legislative history to support any intent to criminalize ‘grooming’ by titillating speech.”


And that, in a nutshell, is why the TexCrimApp found § 33.021(b)(1) did not meet constitutional muster under the First Amendment. The Legislature simply got so carried away with an unspoken, undefined intent to prevent “grooming” (if you accept the State’s reasoning) that it criminalized any speech that could be remotely considered “dirty” or  sexually “titillating.” We, of course, welcome the TexCrimApp’s courage to recognize this constitutional flaw in the case of Ex Parte John Christopher Lo.


It didn’t take long for the Lo decision to have an impact in the state’s school system. Two “sexting” cases were recently dismissed by prosecutors because of the ruling. The first case involved a Clear Creek ISD choir teacher who was arrested in 2008 for “sexting” explicit sexual messages to a student. The second case involved a junior high school teacher in the Everman district in Fort Worth who, during a six day period in October 2012, traded 688 text messages with a student, some of which included content about sexual preferences, fantasies, and dreams.


The spokesperson for the Tarrant County District Attorney’s Office, Melody McDonald, told the local media that: “The recent opinion by the Texas Court of Criminal Appeals has certainly caused us to re-examine a handful of cases, and, where appropriate, seek to re-indict them under … online solicitation of a minor. In this particular case, however, the facts didn’t fit that statute and that wasn’t an option.”


We do not believe, as some have suggested, that the Lo decision is an unfettered license for adults to “talk dirty” to children. Rather the decision effectively curtailed bad legislation that infringed upon established constitutional protections. The legislature now has an opportunity to get it right (if it can, and that is doubtful).


South Texas College of Law Professor T. Gerald Treece explained the impact of Lo to the local Houston media this way: “Talking about sex can’t be prohibited, but talking about sex and suggesting that a person engage in sex with them is prohibited.”  And as Professor Treece pointed out, an adult having sex with a minor is already against the law.  There are also, as the TexCrimApp noted, criminal laws that already punish everything 33.021(b(1) intended to criminalize in its overly broad terms.  This was ill conceived feel good legislations, and, as such, deserved the scrap heap.


Kudos to criminal defense lawyer Mark Bennett who spotted the issue and doggedly fought for his client as this case worked its way through the system.  His work not only served his client well, but has forced dismissals in other cases.