2015.52: Hot Texas First Amendment Action

Ex Parte J.I.L. (that’s the real name; it’s a juvenile case) is pending in the Fifth Court of Appeals in Dallas. Cocounsel Josh Andor of McKinney and I are challenging the constitutionality of the Online Impersonation statute, Texas Penal Code Section 33.07. I had to go to Collin County to make this challenge because the Harris County DA’s Office had been dismissing online-impersonation cases out from under me when I filed writs.

But recently in the 209th District Court here in Harris County the State filed a response to my writ challenging Section 33.07. So maybe the Online Impersonation statute isn’t dead in Harris County. Amusingly but unfortunately the State included this in its response:

He’s right: Section 33.07 is similar to Section 33.021(b). But that “pet. granted” bit in the cite means that something else could happen in the case, and what happened in that case is that the Court of Criminal Appeals reversed the court of appeals on that very issue and held Section 33.021(b) unconstitutional. You might have heard about it. It made the news.

But the state’s strategy won’t be set by the prosecutor who thinks that Lo upheld Section 33.021(b). So if Judge McSpadden upholds the constitutionality of Section 33.07 we’ll appeal and the State will dismiss rather than get an adverse ruling on appeal; and if Judge McSpadden grants habeas relief and holds the statute unconstitutional, the State will not appeal.1

That’s okay, because I have J.I.L. in Dallas, but J.I.L. also includes interesting procedural issues about the appeal of the denial of habeas relief on behalf of a juvenile. Apparently there aren’t a lot of applications for writs of habeas corpus filed on behalf of juveniles and appealed. So that case may be resolved on issues other than the unconstitutionality of the statute. If so, I may need other vehicles for that particular challenge. (So if you know a lawyer defending an online impersonation case anywhere in Texas, have her call me.)

Fortunately, the Texas Legislature seems to have no intention of amending Section 33.07, so we have plenty of time to kill that statute. The same can’t be said of Section 33.021; amendments to that statute that are making their way through the legislature would do away with the major points of unconstitutionality. That’s a good thing, but there have been hundreds of people convicted under the current, unconstitutional, Section 33.021(c). If nobody makes a pretrial challenge to the statute as it is now and succeeds, all of those people are stuck with felony convictions and sex-offender registration for violating a void statute.

I am doing my part to challenge 33.021(c) before it changes. I have a pretrial writ pending in Abilene (where the appeal will go to the Eastland Court of Appeals) and Conroe (Beaumont Court of Appeals), and I have appeals pending in the First Court of Appeals and the Beaumont Court of Appeals.

The Beaumont court had upheld Section 33.021(c) in the face of a constitutional challenge in Victorick v. State, but that opinion is unpublished (and so of no precedential value), and it doesn’t appear that the argument for why Section 33.021(c) is unconstitutional was clearly made or understood.

The First Court of Appeals had also upheld Section 33.021(c) in the face of a constitutional challenge in the published opinion of Maloney v. State. Justice Higley wrote that opinion, holding that:

the incidence of the State seeking to prosecute two consenting adults engaging in online role playing or “fantasy” would likely be exceedingly low. See Ferber, 458 U.S. at 773, 102 S.Ct. at 3363; Smith, 806 N.E.2d at 1265. Considering the overly broad scope and purpose of section 33.021, we have been given no basis to believe that prosecutions of consenting adults engaging in role-playing would amount to any more than a “tiny fraction” of all prosecutions under the statute.

How often the State would seek to prosecute people engaging in constitutionally protected age play wasn’t quite the right question to ask, for:

The First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

U.S. v. Stevens.

The right question would, rather, have been how often the State could seek to prosecute people engaged in age play. The relevant inquiry is whether constitutionally protected age play is substantial compared to the legitimate sweep of the statute.

The answer to that inquiry is “yes.” While the First Court in Maloney arguably didn’t have any basis to believe that prosecutions of consenting adults engaged in age play would be more than a tiny fraction of prosecutions,2 the First Court in W. has reason—an uncontroverted affidavit from an age play expert—to believe that age play is substantial. And while it might not be substantial compared to vanilla sex, age play is, I will bet, more prevalent than sexual abuse of children.

The First Court in Lo cited Maloney approvingly, and was reversed by the Court of Criminal Appeals. Justice Jennings wrote the First Court’s opinion in Lo. My panel in W. is Justices Jennings, Hudson, and Higley. At the end of the day it turned out that I was right, and Justice Jennings wrong, in Lo. I contend that, because she didn’t have enough information about age play, Justice Higley was wrong in Maloney. The court has that information now.

The First Court has granted oral argument in W. It’ll be the afternoon of April 29th. I have to think that they wouldn’t bother if they weren’t open to abrogating Maloney.

Killing Section 33.021(c) will get a bunch of people out of prison and off probation, but not as many as killing Section 32.51, Fraudulent Use or Possession of Identifying Information, will. This is one that people are doing lots of prison time for. I have several pretrial writs in the pipeline, but the only case that has hit the Court of Appeals got dismissed when the State read my brief.3

Prosecutors seem to think that Section 32.51 forbids only identity theft, but it forbids “using” someone’s “identifying information” without their consent with intent to “harm” them. “Using” is undefined, so it takes its usual meaning; “identifying information” is anything that, alone or in conjunction with something else, can be used to identify someone; “harm” is anything reasonably regarded as loss, disadvantage, or injury. So if I speak (use) your name without your consent with the intent to damage your reputation, embarrass you, or offend you (any of which a jury might reasonably regard as loss, disadvantage or injury) I can be prosecuted for a felony.

What’s more, if I know (possess) your name without your consent with the intent to damage your reputation, embarrass you, or offend you, I can be prosecuted for a felony.

What’s more, if I possess the identifying information of more than three people, I am presumed to have the intent to harm or defraud another. Remember telephone books? Possessing the white pages (possessing the identifying information of more than 50 people without their consent; intent to harm is presumed) is a first degree felony, the same level of offense as murder.

But I’m just being a paranoid First Amendment zealot when i worry about such things, right? No government official would ever dream of using such a law to attack critics, right?


  1. What does it take to get Harris County DA Devon Anderson to defend the constitutionality of a statute? 

  2. The counterargument is that the fact that the Legislature explicitly excluded a fantasy defense is itself evidence that fantasy prosecutions will be substantial. 

  3. Thanks again, Harris County. 

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