Pop Law

Most people who aren’t securities lawyers—other lawyers included—don’t have opinions on what SEC regulations say.

Most people who aren’t probate lawyers—other lawyers included—don’t have opinions on the best way to write a will.

Yet everybody—other lawyers included—has opinions about what the criminal law says, and how to try a criminal case. And virtually all of them are wrong.

Everybody—other criminal lawyers included—has opinions about what First Amendment law is. And virtually all of them are wrong.

Almost everybody thought I was crazy for attacking Texas’s online-solicitation-of-a-minor statute for violating the First Amendment, because it’s solicitation, and everybody knows that solicitation of children is not protected by the First Amendment. And besides, talking dirty to minors couldn’t possibly be protected speech, because it’s talking dirty to minors. But the fact that the Texas Legislature calls it “solicitation” doesn’t make it solicitation, the fact that the Texas Legislature calls them “minors” doesn’t make them minors, and speech—even dirty talk to minors—is protected unless it isn’t.

The prosecutor, even after (presumably) reading the very conservative Texas Court of Criminal Appeals’ 9–0 opinion agreeing with me, thinks it’s a crazy idea:

[T]his Court should have held, in accor­dance with the con­trol­ling case law regard­ing the First Amend­ment over­breadth doc­trine, that Sec­tion 33.02l(b) crim­i­nal­izes a sub­stan­tial amount of pro­tected speech.… This is an impor­tant dis­tinc­tion as sex­ting with chil­dren is not cov­ered by another crim­i­nal statute, and this Court’s opin­ion will be con­strued to hold that it is now con­sti­tu­tion­ally pro­tected speech. Is that what this Court intended?

Sexting with children qua sexting with children is constitutionally protected, just as speech qua speech is. Sexting—as any speech—may be solicitative, or obscene, or both, but if the sexting, or the speech, doesn’t fall into a narrow and clearly defined category, recognized by the U.S. Supreme Court, of historically unprotected speech, it is constitutionally protected speech.

The fundamentals of criminal First Amendment law are not highly complex. If the criminality of speech depends on its content (if, for example, taking a photograph of a dog is legal but taking a photograph of a human in the same circumstances is prohibited), then there is a content-based speech restriction. If a speech restriction is content-based, it is presumptively illegal. For the statute to pass muster the speech restricted must fall into one of a very few narrow categories of historically unprotected speech: speech integral to criminal conduct, obscenity, fraud, defamation, incitement, or solicitation.

Those are the fundamentals. And First Amendment amateurs (including law profs and appellate lawyers) will take that list of categories and cram whatever speech they don’t like into one of them. Revenge porn? It’s obscene! Upskirt photography? It’s integral to criminal conduct! Offensive speech of any sort? It’s incitement! Sexting children? It’s…um…errr…solicitation! and icky!

But “narrow” means that none of these categories give the State carte blanche to restrict speech; when it comes to free speech, the opinions of amateurs on what is and isn’t protected thankfully do not matter.

“Thankfully” because amateurs who think that speech that they dislike must not be protected very rarely consider the collateral consequences of broadening the categories of unprotected speech. If we go around stretching these narrow categories of protected speech to allow restriction of this speech and that speech we don’t like, soon there will be nothing left.

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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