SECTION 1. Chapter 21, Penal Code, is amended by adding Section 21.19 to read as follows:
Sec. 21.19. UNLAWFUL ELECTRONIC TRANSMISSION OF SEXUALLY EXPLICIT VISUAL MATERIAL.
(a) In this section, “intimate parts,” “sexual conduct,” and “visual material” have the meanings assigned by Section 21.16.
(b) A person commits an offense if the person knowingly transmits by electronic means visual material that:
(A) any person engaging in sexual conduct or with the person’s intimate parts exposed; or
(B) covered genitals of a male person that are in a discernibly turgid state; and
(2) is not sent at the request of or with the express consent of the recipient.
(c) An offense under this section is a Class C misdemeanor.
(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law.
SECTION 2. This Act takes effect September 1, 2019.
In other words, starting
SaturdaySunday it will be a Class C misdemeanor in Texas to send certain images to people without their consent.
Texas Governor Greg Abbott finds it “disgusting” that people send other people unwanted sexually explicit pictures.
Many people—especially women—get unwanted sexually explicit pictures by text or social media.
— Greg Abbott (@GregAbbott_TX) August 23, 2019
You know what I find disgusting?
I find Texas’s governor white-knighting for every woman in the world, at the expense of everyone’s free-speech rights, disgusting.
Look, don’t send unwanted sexually explicit pictures to women. It’s creepy and weak.
But creepiness, weakness, and disgustingness don’t make speech unprotected. And if speech is not unprotected it is protected from content-based restriction.
And this statute is a content-based restriction: To be restricted, the visual material has to “depict” sex, intimate parts (the naked genitals, pubic area, anus, buttocks, or female nipple of a person) or covered discernibly turgid male genitalia.
So pictures of your cat are not restricted, pictures of your …
Don’t make me finish.
“Person” means an individual, corporation, or association.
“Individual” means a human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.
So a hentai depiction of fictional character having sex is safe to send the Governor, but a depiction of a living (at the time depicted? at the time of the depiction? at the time of the transmission of the depiction?) human being’s buttocks is not.
The transmission does not have to be one-to-one. If you post a sonogram showing that it’s a boy! to your Facebook page and someone sees it who didn’t expressly consent, you’re a disgusting criminal.
And notice what Abbott says about the law in his little video: “a crime to send sexually explicit pictures by social media or by text.” Not “a crime to send unwanted sexually explicit pictures.” Abbott tells a little lie, describing the statute as he wishes it were and not as it is.
Even as it is, this statute will not stand. I believe we are going to kill section 21.19 of the Texas Penal Code.
The procedure is simple—we’ve done it scores of times—and the brief practically writes itself.
The problem, however, is getting a prosecutor to do his part to get a precedential appellate opinion holding the statute unconstitutional.
Smart prosecutors know that the statute is unconstitutional, and they don’t want to waste their time defending an obviously void statute. Nor should they.
Because it’s a Class C Misdemeanor, violations will be prosecuted in municipal court (by city prosecutors) or in Justice of the Peace Court (by county prosecutors).
If we take our usual tactical approach to killing the statute we will file an application for writ of habeas corpus challenging the statute as unconstitutional. Jurisdiction for this habeas is in county court (not the JP court or municipal court where the prosecution lies). If the county judge holds the statute unconstitutional, it seems to me unlikely that an elected DA will sign off on an appeal (which is required for the State to appeal). They’ll just let it die—stupid, but not [yet held] unconstitutional. If the county judge upholds the statute, the defense will appeal, and the State will likely dismiss the prosecution, mooting the appeal, rather than spend resources defending it.
How, then, do we maximize our chances that the State will defend the statute? We need the right complaining witness.
Someone who really finds our speech disgusting.
Someone who thinks that “disgusting” should be “illegal.”
Someone who has gone on the record saying so.
Someone whose public stance on the statute will make it hard for him to ignore very public violations of the statute directed toward him.
Someone like @gregabbott_tx.
SaturdaySunday, September 1, 2019, is Send a Butt Pic to the Governor Day.
I’ll defend you if you get charged with violating section 21.19 of the Texas Penal Code. I will probably associate local counsel, and we’ll do it for free.
So don’t give them the chance to charge them with something else.
Don’t do it more than once.
Don’t be threatening.
Don’t make it obscene. Section 43.22 of the Texas Penal Code forbids “distribut[ing] an obscene photograph, drawing, or similar visual representation or other obscene material [while] reckless about whether a person is present who will be offended or alarmed by the display or distribution.”
That’s a class C misdemeanor too, but I don’t intend to travel around Texas defending obscenity cases for free.
Mere nudity is not obscene. “Lewd exhibition” of the genitals may be. So if you want to steer far clear of obscenity, avoid genitals altogether, and stick to buttocks and nipples. There are no circumstances in which buttocks and nipples are obscene.
So send a butt pic. It doesn’t even have to be your butt—a Google image search will turn up an infinitude of depictions of human buttocks. Or send a nipple pic.
You can even keep it tasteful: plenty of fine art, shared electronically and received by someone who had not asked for it, violates the statute.
Hell, keep it friendly. This is Texas, and we are right. We are defending the frontiers of free speech, because only by defending the frontiers can we preserve the heartland.
Disgust is an emotional reaction. Speech affects emotions, good speech really affects emotions, and those emotions are not always happy.
Stand up for the principle that speech cannot be restricted based on its emotional effect.
If speech can be restricted based on emotional effect, there is no limit to the speech that the government can punish. Because any unfavored speech causes emotional harm to someone.
If we win, we make history.
And if we lose? Well, the maximum fine is $500.