Defending People

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Three Overbroad Texas Penal Statutes

(Despite the “hey, look at me, I’m a list” title, this is a post for law geeks).

The Texas online-solicitation-of-a-minor statute, Texas Penal Code Sec­tion 33.021 vio­lates the First Amend­ment to the United States Con­sti­tu­tion because it bars adults mak­ing sexually-related com­mu­ni­ca­tions that are nei­ther solic­i­ta­tive nor obscene to minors.

The Texas online-impersonation statute, Texas Penal Code Sec­tion 33.07, vio­lates the First Amend­ment to the United States Con­sti­tu­tion because it bars post­ing web­pages using the name of another per­son, even if not imper­son­ative, to post harm­ful con­tent, even if truthful.

The Texas improper-photography statute, Texas Penal Code Sec­tion 21.15, vio­lates the First Amend­ment to the United States Con­sti­tu­tion because it bars pub­lish­ing with­out con­sent an image of another made with that person’s consent.

One thing that all of these cases have in com­mon is that they are mis­named. 33.021 is about more than solic­i­ta­tion. 33.07 is about more than imper­son­ation. 21.15 is about more than photography.

Each of these statutes out­laws some com­mu­ni­ca­tion based on its con­tent. What Texas would out­law with each of these three statutes is not defam­a­tory, is not incite­ful, is not obscene (not even as to chil­dren) and is not inte­gral to crim­i­nal con­duct.

In order to uphold these three statutes, the U.S. Supreme Court would have to add at least two entirely new cat­e­gories of unpro­tected speech to the four it has rec­og­nized in the past.

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This entry was posted by on Thursday, November 29th, 2012 at 12:43 pm and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.

About The Author

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.

Comments

4 Responses to “Three Overbroad Texas Penal Statutes”

  1. Mike Paar says:
    29 November 2012 at 2:09 pm

    Even within the solic­it­ing part of said statute, the def­i­n­i­tion of “solicit” isn’t specif­i­cally defined. Or is it? http://www.yourhoustonnews.com/east_montgomery/news/charges-dismissed-against-ex-spd-cop/article_b8b0fa71-442e-5277-ae81-b3177cd88cf0.html

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  2. Mike Trent says:
    29 November 2012 at 7:39 pm

    The Penal Code — and per­haps even moreso the many other codes that con­tain mis­cel­la­neous crim­i­nal offenses — have become rich fod­der for any com­edy rou­tine over the last 20 years. Once a model of suc­cinct clar­ity, the code is now lit­tered with ridicu­lous and unnec­es­sary offenses like Evad­ing 2nd offender, metal theft, unlaw­ful shrimpi har­vest­ing, and a host of oth­ers too numer­ous to name. I know you only wanted to address over­broad statutes, but I couldn’t help but rant just a bit about all the silly and super­flu­ous ones we now have thanks to the legislature.

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