Part of Texas Online Solicitation of a Minor Statute Unconstitutional

Today I got an opinion from the Texas Court of Criminal Appeals that culminated four years of appellate litigation on the unconstitutionality under the First Amendment of the “talking dirty” portion of Texas’s “online solicitation of a minor” statute, Texas Penal Code Section 33.021(b).

The State could file a motion for rehearing with the Court of Criminal Appeals, but it’s a 25-page unanimous opinion penned by Judge Cathy Cochran, so I think the motion would be a waste of paper.

I expect that the State will file a petition for writ of certiorari with the United States Supreme Court, and that it’ll be denied. The unconstitutionality of the statute is a no-brainer. In fact, in light of Stevens the Court of Criminal Appeals (and I, in my briefs) arguably gave the State too much leeway by applying strict scrutiny rather than a purely categorical test. I am relieved that I won’t have to file a cert petition, which I would have done had the Court of Criminal Appeals come to a different conclusion.Volokh Conspiracy, Grits for Breakfast, the Austin American-Statesman, and the Houston Chronicle have taken note of the case, noting in particular this language:

Subsection (b) covers a whole cornucopia of “titillating talk” or “dirty talk.” but it also includes sexually explicit literature such as “Lolita,” “50 Shades of Grey,” “Lady Chatterly’s Lover,” and Shakespeare’s “Troilus and Cressida.” It includes sexually explicit television shows, movies, and performances such as “The Tudors,” “Rome,” “Eyes Wide Shut,” “Basic Instinct,” Janet Jackson’s “Wardrobe Malfunction” during the 2004 Super Bowl, and Miley Cyrus’ “twerking” during the 2013 MTV Video Music Awards.” It includes sexually explicit art such as “The Rape of the Sabine Women,” “Venus De Milo,” “the Naked Maja,” or Japaneses Shunga. Communications and materials that, in some manner, “relate to” sexual conduct comprise much of the art, literature and entertainment of the world from the time of the Greek myths extolling Zeus’s sexual prowess, through the ribald plays of the Renaissance, to today’s Hollywood movies and cable TV shows.

While “look at all the things that are ‘sexually explicit’ under this statute” (i.e. just about everything) was a theme of my briefs and argument, and while at oral argument we discussed Miley Cyrus and Abercrombie & Fitch, when I read the opinion I had to Google “Shunga.” Well played, Judge Cochran. Well played.

The Naked Maja
Spanish Postage Stamp with Copy of Goya’s Maja Desnuda

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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