It has always been indecent, and criminal, for anyone in Texas to expose their anus or any part of their genitalia with the intent to arouse or gratify the sexual desire of any person. An underlying component of the crime is the exposure of the above-mentioned body parts, without regard to whether the recipient of the exposure is offended.


Indecent exposure is virtually always found in the public space.  However, with the advent of the Internet, and the social media platforms it has created, electronic exposure of what is now known as “unwanted sexually explicit material” has become a major social concern, especially given the fact that as many as 15 percent of school students have received such material.


Just last year the Texas legislature was rocked by yet another sexual misconduct scandal when Republican Senator Charles Schwertner was accused of texting a sexually explicit image and message to a University of Texas graduate student in Austin—a charge the lawmaker strenuously denied.


In an effort to address this peculiar social phenomenon, Rep. Morgan Meyer (R-Dallas) introduced House Bill 2789 that would make it a Class C misdemeanor (subject to a $500 fine) to electronically transmit unwanted sexually explicit material.


The Texas Tribune reported on August 14, 2019 that Brandy Davis, a Dallas mother who had decided to reenter “the online dating scene” several years ago, exchanged phone numbers with a “seemingly nice” man only to receive an unsolicited and unwanted nude photo of him.


At a May Senate hearing committee considering Rep. Morgan’s bill, Davis told the committee members that: “I remember thinking, ‘If this is going to come unexpected like this, it could come at a time when my son has my phone.’ I was appalled … because nobody should be subjected to that.”


Bumble is an Austin-based mobile dating app service. The company’s CEO, Whitney Wolfe Hord, told that same Senate committee that, “Lately, it feels like men and women are being told that this increasingly common problem is really no big deal. Women in particular are expected to laugh this sort of thing off. But there’s nothing funny about it.”


Gov. Greg Abbott, who has never seen a crime bill he didn’t want to sign, signed House Bill 2789 making it effective September 1, 2019. The law, according to the Tribune, makes Texas one of the first states to criminalize the practice of electronically transmitting unwanted sexually explicit material. The new law applies to dating apps, emails, texts, and social media.


New Statute will Have Constitutional Challenges


However, before those supporting the legislation celebrate, they should consider the caution expressed by Austin attorney J.T. Morris, whose firm specializes in First Amendment rights, to the Tribune that prosecutors will face “difficulties” in those cases where an accused sender claims they did not send the “lewd” message or material. Morris also warns that sending a doctor an image for medical purposes or the image of a mother breastfeeding could be “considered criminal acts” under House Bill 2789.


Former University of Texas law professor David Anderson, a free speech expert, also told the Tribune that the concerns expressed by Morris will most certainly lead to legal challenges of the new law—challenges that could meet with little, if any, success.


Anderson pointed to a 2015 “revenge porn” law that was “similar” to House Bill 2789 which was declared unconstitutional last year by a Tyler-based Court of Appeals. This past legislative session Texas lawmakers were forced to pass a new “revenge porn” law trying to salvage its 2015 law.


Anderson told the Tribune that he doesn’t think House Bill 2789 “could survive” a constitutional challenge like the one made to the 2015 revenge porn law—and “even if could,” he said, “it probably won’t ever get to that stage. Who are they going to prosecute?”


Rep. Meyer concedes that prosecution is unlikely.


“We understand that enforcement will be a challenge,” the lawmaker told the Tribune, “but this bill is intended to serve as a deterrent as well. It’s keeping people aware that sending unsolicited lewd photos will not be tolerated … and stopping them from doing it in the first place.”


Rep. Meyer’s logic escapes us. If prosecuting a sender of unsolicited sexually explicit material is virtually impossible, how can there be deterrence? Unenforceable laws are just that—unenforceable laws, or as they say in Texas, “all hat and no cattle.”