Why a Texas Appellate Court Struck Down a Ban on Certain Sexual Communications Online

Posted in: Criminal Law

A Texas criminal appellate decision, issued on October 30 of this year, was based on a Texas man’s being charged under the State’s penal code for the third-degree felony of communicating in a sexually-explicit manner with a person whom he believed to be a minor, with intent to arouse or gratify his sexual desire. The Texas appellate court, however, deemed the statute to be overbroad and therefore struck it down, noting that content-based regulations of speech, such as the one at issue here, are presumably invalid.

The Texas Laws At Issue

The court noted that Texas has anti-solicitation statutes that are geared to protect minors from attempts by adults to engage in sexual conduct with them. But such statutes focus on conduct, and not speech, and thus do not necessarily have a First Amendment dimension.

In contrast, Texas’s sexually explicit communications provision prohibits a person from communicating online in a sexually-explicit manner (via words, images, or films) with a minor, if the person has the intent to arouse and gratify anyone’s sexual desire. As the Texas appellate court noted, far more than pornography is encompassed by the statute’s reach.

Interestingly, the Texas appellate court, here, did not reach for classics like Lolita or revered erotic authors like Anais Nin and Henry Miller. Instead, it chose to exemplify its point by citing modern movies and television shows, and young adult books. Also interesting is the court’s eschewing any mention of the now-notorious erotic book Fifty Shades of Gray, which will reportedly soon also become a movie. All of these types of books, the Texas appellate court noted, would fall into the category of sexually explicit communications.

Yet the statute’s core purpose, the Texas appellate court noted, was to allow authorities to target persons who—after making contact with a child online—then also continue on with the intent of meeting the child for sexual activities.

First Amendment Overbreadth and This Case

The First Amendment overbreadth doctrine played a significant role in the Texas case. That doctrine states that a statute is facially invalid if it prohibits a substantial amount of protected speech, judged in relation to the statute’s plainly legitimate sweep. Citing the U.S. Supreme Court’s decision in Ashcroft v. Free Speech Coalition, the Texas appellate court noted that the First Amendment is inconsistent with a ban on “virtual” child pornography—that is, pornography that does not involve actual children. As repellent as even virtual child pornography is, banning it would be creating a thought crime, something that a free society must eschew.

Why the Statue at Issue Was Struck Down in Its Entirety

Ultimately, the Texas Appellate Court decided that part of the statute at issue was covered by other Texas statutes, and the rest of the statute at issue was constitutionally protected, including by the First Amendment.

The Texas Appellate court also took note of two relevant U.S. Supreme Court cases in its ruling: Ginsberg v. New York, which defined a set of materials that is “obscene as to minors,” and Reno v. ACLU, which struck down a federal prohibition on the knowing dissemination of indecent—and not just obscene—communications to children over the Internet.

The Texas appellate court, thus, in the end, hewed closer to Reno than to Ginsberg, and it did so, it seems, due to a fear of thought-crime, as well as a concern that literary works, and even some enduring classics would be censored from the eyes of children who ought to be free to read them, and perhaps might even be enriched and educated by some of them.