Texas Free-Speech News

The Fourth Court of Appeals (Texas’s San-Antonio-based intermediate appellate court) three weeks ago in Ex Parte Thompson held unconstitutional (pdf) the portion of Texas’s improper photography statute that outlawed taking photos of other people without their consent in places other than bathrooms and dressing rooms with the intent to arouse or gratify sexual desire.

This week a twelve-year-old girl was “convicted” (adjudicated delinquent) in juvenile court of improper photography in Harris County (Chronicle). To prosecutors and the complainant’s family the case was about “bullying.”

This week the Texas Court of Criminal appeals heard oral argument in a case involving the unconstitutionality of the sexually-explicit-communication portion Texas’s online-solicitation-of-a-minor statute.

This week the Fifth Court of Appeals (the Dallas-based intermediate appellate court) in Freeman v. State held the sexually-explicit-communication portion of Texas’s online-solicitation-of-a-minor statute constitutional (pdf).

The unconstitutionality of a statute as it is written (that is, without considering the facts of the case) can be challenged pretrial with a writ of habeas corpus. The reasoning for allowing this pretrial challenge is that a person should not have to face prosecution for an unconstitutional crime.

If the trial court denies the writ of habeas corpus, the defendant can appeal to the intermediate court of appeals. That’s how Thompson got to the Fourth Court of Appeals.

If the defendant loses in the intermediate court of appeals he can appeal to the Court of Criminal Appeals. That’s how the Court of Criminal Appeals got the case it heard this week.

If the State loses in the intermediate court of appeals it can appeal to the Court of Criminal Appeals. That’s where Thompson is probably headed next.

Instead of filing a writ of habeas corpus and appealing, the trial lawyer can steam ahead and try the case. That’s what happened in Freeman. Now Mr. Freeman can ask the Court of Criminal Appeals to review the Fifth Court of Appeals’ decision. But meanwhile Mr. Freeman has to register as a sex offender, and that status has been picked up and republished by various websites. So even if he keeps his case on appeal and the Court of Criminal Appeals holds the statute unconstitutional, he’s going to have a hard time clearing his name.

Until Texas’s online-solicitation, improper-photography, and online-impersonation statutes have been stricken by the Court of Criminal Appeals or upheld by the U.S. Supreme Court, every such case ought to be sent into pretrial appellate orbit. They are plainly violative of free speech.

A content-based restriction on speech is presumed unconstitutional. It is the State’s burden to show that the statute is constitutional. The standard of review is “strict scrutiny.” This is the highest level of constitutional scrutiny, the most difficult to satisfy. To satisfy strict scrutiny, a statute must be justified by a compelling state interest, must be narrowly tailored to accomplish that interest, and must be the least restrictive means for achieving that interest.

A restriction on speech is content-based if the legality of the speech depends on its content.

So how did the Fifth Court in Freeman justify upholding the online-solicitation statute? Simple: it ignored strict scrutiny and applied a lower standard by calling speech “conduct”:

A statute is impermissibly overbroad if it includes within its coverage speech or conduct protected by the First Amendment in addition to properly prohibiting activities that are not protected. Bynum v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989); see also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). We hesitate to strike down a statute on its face because of the far-reaching effect, so we do so only “as a last resort.” New York v. Ferber, 458 U.S. 747, 769 (1982). We will not invalidate a statute for overbreadth merely because it is possible to imagine some unconstitutional application. In re Shaw, 204 S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref’d) (citing Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)). The United States Supreme Court requires substantial overbreath before invalidating on its face a statute regulating conduct. Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). The Supreme Court has recognized that, particularly when conduct and not merely speech is involved, the overbreadth of a statute must “not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id. It is at the point of substantial overbreadth that the quantity of protected speech and conduct within the statute— “at best a prediction”—justifies invalidating a statute on its face. Id.

But the sexually-explicit-communication portion of the online-solicitation statute would regulate pure speech, not “conduct and not merely speech.” It doesn’t require an intent to commit any crime, but only to arouse or gratify—protected thought.

The Freeman opinion is non-sequitur laden, which is what it takes to uphold the statute in the face of a well-developed body of U.S. Supreme Court caselaw: dirty talk to kids, even with the intent to titillate (the speaker or the kids), short of obscenity or solicitation of a crime, is protected.

The Fifth Court wrote,

To paraphrase the Supreme Court, one would hardly be surprised to learn that communicating sexually explicit material to a child younger than seventeen years old is not an innocent act.

Good old common sense. One might not be surprised to learn that. The court may be surprised to learn that, innocent or not, it is protected by the First Amendment.

7 responses to “Texas Free-Speech News”

  1. So what of the 12-year-old girl? I find it incredible that the DA would choose to prosecute the case as a felony. What a complete and total waste of resources. This could, and should have been handled without the involvement of the DA’s office. Your previous post was supportive of the “incorruptible” Belinda Hill for the job of DA, yet this story seems to judge her unfit for the position. And so far as Hill being incorruptible, I’m not buying it. She worked for a corrupt despot who by your own account was complicit along with his wife in a grand jury rigging scheme, and she had to have known about it as your blog about it has been widely read. No offense, but I guess maybe we have differing definitions of the word “incorruptible”.

    • Mike, we might think that the 12-year-old shouldn’t be prosecuted (actually, subjected to delinquency proceedings—this was a juvenile case that Brian Rogers dumbed down for his readers) for what she did, but she broke the law, and even if it was Hill’s decision (it, like the vast majority of prosecution decisions, probably never made it to her desk) to proceed, a prosecutor isn’t corrupt because she enforces the law.

      As for the grand-jury rigging scheme, you mischaracterize just about everything in an effort to make it relevant to Hill, who was a judge at the time.

  2. You know, I bet I can find a case somewhere that Judge Hill decided where a police officer was convicted in her court of a child sex crime and she went all lenient on him. Now here’s this 12-year-old little girl who will probably be required to register as a sex offender. Since the photos in question weren’t even nude, I speculate this is one of those cases where the decision to prosecute probably rested more with who the victim’s parents were rather than the seriousness of the crime itself. Again, no offense, but it seems you go from one blog that honey-coated Hill and made her out to be the perfect candidate for the job, then to the next blog which clearly reveals the reason why she shouldn’t be the DA.

  3. Yes, she was indeed a judge at that time, but she still played a role in the conspiracy to unseat Lykos. We shouldn’t insult each others intelligence by pretending Hill and The Anderson’s weren’t part and parcel to the plot to unseat Lykos. Hell, she must have been instrumental in that Michael offered her the job after victory (or maybe that was the deal they had struck beforehand) : http://bigjollypolitics.com/2013/03/15/former-district-attorney-pat-lykos-exonerated-yet-again/

    I am sickened by the thought that I am seemingly taking the side of Lykos, whom I despise every inch of, but if Hill would be part of an illegal scheme to aid her pal Anderson, then she would do likewise to someone else. As far as any mischaracterization, I take solace in the fact that I am joined by others who also consider those actions suspect and illegal: http://bigjollypolitics.com/2011/12/21/runaway-harris-county-grand-jury-or-electoral-conspiracy/

    Lastly, a quick search found one officer-involved sex case in which she presided, and which the the officer was indulged special treatment by the court: http://www.chron.com/news/houston-texas/article/Officer-accused-of-sleeping-with-suspect-strikes-1955406.php

    Since the question and answer portion of your comment form is missing, I’ll devise one myself:

    Before you submit this comment please answer the following question. What is used in lawyerspeak to minimize the effect of damaging testimony? Answer: Mischaracterization

    • You really have to squint to find any suggestion of wrongdoing on Hill’s part. She appointed a special prosecutor to investigate the DA’s political use of government resources, as she should have.

      Big Jolly is a partisan hack who makes stuff up for the right-wing echo chamber. He appears to be the originator of the “Belinda Hill is pro-abortion” meme; I’ve asked him to support the statement, and he hasn’t.

      In the case you link to, the State reduced charges. You know the difference, as do the rest of my readers. So please keep looking for that “case somewhere that Judge Hill decided where a police officer was convicted in her court of a child sex crime and she went all lenient on him.”

  4. On further reflection, and after reading your subsequent blog post http://blog.bennettandbennett.com/2013/09/the-ethics-of-judicial-support.html I’ve concluded you are indeed right. I now believe that just because Hill associates herself with known corrupt former judges that this doesn’t really make her corrupt. We’ve all got friends and deceased former bosses who commit criminal acts in the name of The Law. And it’s not really corruption anyway as long as it’s done with approval of your own Good Ole Boy network, right? And in light of your last blog I’m now going to support Belinda Hill for district attorney. I’ll also need to refrain myself from squinting my eyes so that my own ethics aren’t questioned. You never know, it just may benefit me the same as if I had lent my name to some judicial prospect .

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