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.

About Mark Bennett

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.
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4 Responses to Three Overbroad Texas Penal Statutes

  1. Mike Paar says:

    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

  2. Mike Trent says:

    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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