Here’s a quick summary (more than a soundbite, less than a brief) of the status of the remains of Texas’s online-solicitation-of-a-minor statute.
The statute forbids adults soliciting people whom they believe are minors to have sex, but it also forbids their soliciting other adults whom they believe to be adults to have sex, as well as soliciting people to not have sex (that is, fantasy communications or communications with no intent to meet).
Soliciting a child to have sex, with the intent that a crime be committed, is unprotected speech.
Soliciting someone you believe to be a child to have sex, with the intent that a crime be committed, is probably unprotected speech.
But soliciting an adult to have sex is generally protected speech. And making solicitive noises to a child, with no intent to actually carry through, is protected speech. It’s the intent to commit a (non-speech) crime that makes the speech unprotected.
So section 33.021, as it currently stands, forbids protected speech as well as unprotected speech.
The law will change as of September first, to correct this problem. ((The new law comes close to being right; it may be close enough to survive an as-written challenge, but I can envision as-applied challenges.))
Here’s what Joan Huffman, the sponsor of Senate Bill 344, wrote in her Statement of Intent:
The current statute is overbroad. Though the statute was enacted to impose sanctions upon those who engage in Internet conversations with minors with an intent for physical contact to take place, the statute’s sexually explicit communication provision contains no requirement that an actor ever possess the intent to meet the child.
Like Section 33.021(b), the current Section 33.021(c) contains no requirement that an actor ever possess the intent to meet the child. It appears to, but the requirement that subsection (c) gives, subsection (d) takes away:
(c) A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.
(d) It is not a defense to prosecution under Subsection (c) that: …
(2) the actor did not intend for the meeting to occur; or
(3) the actor was engaged in a fantasy at the time of commission of the offense.
“The actor did not intend for the meeting to occur” would, if not for (d)(2), be an inferential-rebuttal defense: it negates the “intent that the minor will engage…” element of the offense. If “the actor did not intend for the meeting to occur” is not a defense, then “intent that the minor will engage…” is not an element (because inferential rebuttal of an element is always a defense).
Likewise, “The actor was engaged in a fantasy at the time of commission of the offense” would inferentially rebut intent; if “fantasy” is not a defense then “intent” is not an element.
So what have the courts said about this argument? There are four cases:
In Ex Parte Lo, the Court of Criminal Appeals addressed 33.021(c) in dicta:
Section 33.021 of the Texas Penal Code is titled “Online Solicitation of a Minor.” It includes subsection (c) — a provision that prohibits and punishes an actor who uses electronic communications to “solicit” a minor, “to meet another person, including the actor, with the intent that the minor will engage in” certain sexual behavior. Such solicitation statutes exist in virtually all states and have been routinely upheld as constitutional because “offers to engage in illegal transactions [such as sexual assault of a minor] are categorically excluded from First Amendment protection.” Thus, it is the conduct of requesting a minor to engage in illegal sexual acts that is the gravamen of the offense. The First Court of Appeals previously upheld the constitutionality of the Texas online-solicitation-of-minors statute. That specific provision is not at issue in this case, but it provides an excellent contrast to the provision that is at issue.
Subsection (c) was not at issue in Lo; to my eternal embarrassment I hadn’t yet looked closely at the interplay of (c) with (d) and (a), so I held out (c) as an example to the Court of Criminal Appeals of a constitutional statute, which resulted in this bit of dicta. Fortunately, though, dicta are not binding.
Footnote 22 of Lo links to Maloney v. State, the First Court of Appeals’ 2009 case upholding 33.021(c) in the face of overbreadth and vagueness challenges. Maloney, a published opinion, is the major obstacle to relief. Justice Higley wrote the opinion in Maloney, and made the same mistake that that intermediate court later made in Lo: “applying an incorrect standard of review.” That is, a content-based restriction on speech is presumptively invalid, and the First Court in Maloney treated 33.021(c) as presumptively valid. When the burden shifts to the State, everything changes.
At the end of April I had oral argument in Ex Parte Wheeler, in the First Court of Appeals. The panel to which I argued included Justice Jennings (who wrote the erroneous opinion in Ex Parte Lo) and Justice Higley (whose opinion in Maloney v. State the First Court will have to overrule to invalidate the statute). We’re waiting for an opinion on that case, which will — thanks to the court hearing oral argument — at least apply the correct standard of review. If the court reaches the correct result, the Court of Criminal Appeals will most likely grant discretionary review; if the court applies the correct standard but reaches the wrong result, I will petition for discretionary review, and hope the Court of Criminal Appeals is interested.
So Lo‘s 33.021(c) language is dicta and is not binding. Maloney‘s 33.021(c) language is published and binding on courts within the First Court of Appeals’ geographic jurisdiction, but Maloney applied the wrong standard of review and will be revisiting 33.021(c) in light of Lo.
There are two other cases that the State relies on in support of the remnants of Section 33.021. First, there is the published San Antonio opinion in Ex Parte Zavala. In Zavala the defendant argued that the statute was vague, but not that it was overbroad. In finding that the statute, with conflicting subsections (c) and (d), was not vague, the San Antonio court made this baffling statement:
The crime of soliciting a minor under section 33.021(c) is committed, and is completed, at the time of the request, i.e., the solicitation. … Indeed, it is the requirement that the defendant must solicit “with the intent that the minor will engage in sexual contact” that operates to make otherwise innocent conduct, i.e., soliciting a minor to meet, into criminal conduct. It follows then, that for purposes of a subsection (c) solicitation offense, … it does not matter … that the defendant did not intend for the meeting to actually occur, or that the defendant was engaged in a fantasy at the time of the solicitation.
Zavala didn’t answer the overbreadth question; it’s a published opinion, but it is binding only on courts within the geographic jurisdiction of the San Antonio Court of Appeals.
The case that did answer the overbreadth question is Victorick, out of the Beaumont Court of Appeals. In Victorick the Court of Appeals, like the First Court in Lo and Maloney, applied the wrong test:
Victorick makes a facial challenge to the statute and he must therefore prove the statute is unconstitutional in every application, and that it could never be constitutionally applied to any defendant under any set of facts or circumstances.
This is not the law. When the statute is a content-based restriction on speech, the burden is on the State to show that the statute is constitutional, and the State must prove that the statute meets the very high standard of strict scrutiny.
The Beaumont court ignored this standard, writing:
On the other hand, if the statute punishes conduct rather than speech, the courts apply a “rational basis” level of review to determine if the statue has a rational relationship to a legitimate state purpose.
For this proposition the Beaumont court cited Broadrick v. Oklahoma. Neither on the cited page nor on any other does Broadrick say anything about a “rational basis” test. The Beaumont court seems to have pulled its proposition from thin air.
The Beaumont court and others (including the State in every brief they’ve filed anywhere in Texas) reads far too much into this line from Broadrick:
where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep
They read too much into it because recent Supreme Court cases ((Such as Ferber, in 1982, but there’s no reason the State should know about that.)) make clear that whether speech or expressive conduct is involved the overbreadth of a statute must be real and substantial.
The Supreme Court does not treat expressive conduct differently than speech, and speech does not become unprotected merely because you call it conduct. But the State’s defense of Section 33.021(c) hinges on this:
A conduct based restriction is presumed constitutional and requires a rational basis standard of review.
For this proposition the State cites Victorick, which in turn cites Broadrick, which doesn’t say that.
In any case, Victorick is an unpublished opinion, and is not binding authority anywhere.
To sum up: Lo — dicta, not binding; Zavala — vagueness only, binding only in San Antonio area; Maloney — under attack in Wheeler, binding only in Houston appellate district; Victorick — goofy, unpublished, not binding.
Next I’ll talk, in light of this roadmap, about the litigation this week in Conroe that has brought Judge Kelly Case unfair and unethical criticism from Phil Grant and the Montgomery County District Attorney’s Office.
Then I’ll talk about why Phil Grant’s criticism was unethical, and what it shows about his fitness for office.