In Ex Parte Fournier, the Court of Criminal Appeals rejected an actual-innocence claim from a guy who had gone to prison for violating Section 33.021(b). I hadn’t had a lot of hope for the actual-innocence claim—I figured the state would find a way to wire around the damage done to it by Ex Parte Lo so that it wouldn’t have to pay millions in civil claims. Judge Yeary dissented, joined by Judge Keller; they would hesitate to give Ex Parte Lo retroactive effect on the theory that there may have been some constitutional applications of the unconstitutional statute—some of the speech punished under Section 33.021(b) was not constitutionally protected.
And indeed some of the speech punished under Section 33.021(b) was not constitutionally protected; that speech was forbidden under other statutes as well. The state chose to prosecute that speech under the easy-to-prove-and-unconstitutional Section 33.021(b) rather than under a more-difficult-to-prove-but-constitutional statute. The State, rather than the accused, should bear the consequences of this decision.
I expect that Yeary’s argument will resurface when we kill other void penal statutes. Until it is definitively rejected by the court, it highlights the importance of lawyers making First Amendment challenges pretrial, getting trial-court rulings in every case.
Speaking of other void penal statutes, here are some of the challenges we have going:
- Texas Penal Code Section 33.021—the balance of the online-solicitation statute (pre-9/15), which forbids fantasy solicitation and solicitation of people whom the defendant knows not to be children. I had high hopes for the First Court of Appeals in Wheeler; those hopes were dashed when the court essentially reissued its Maloney opinion with Lo dicta added in. I’ve filed a petition for discretionary review with the Court of Criminal Appeals. If the court refuses discretionary review, I have several other 33.021 cases in the appellate pipeline, in the 3rd, 7th, 9th, 10th, and 11th Courts of Appeals. Neither Maloney nor Wheeler is binding precedent in those courts, so they may be more receptive than the First was to applying the correct presumption, of unconstitutionality, to this content-based restriction on speech.
- Texas Penal Code Section 33.07—the online-impersonation statute, which forbids using someone’s name online without consent but with intent to harm them. The 208th District Court court in Ex Parte Stubbs agreed with us that the statute is unconstitutional, the State’s appeal is pending in the 14th Court of Appeals. Toby Shook and I have a case pending in Dallas County as well. The State had dismissed two other Online Impersonation prosecutions in the face of constitutional challenges; they committed to defending the statute on appeal in Stubbs before Judge McSpadden granted relief.
- Texas Penal Code Section 32.51—the fraudulent-use-of-identifying-information statute, which forbids using someone’s name (or anything else about them) without consent but with intent to harm them. This is going to be a big one. I have cases pending in trial courts in Galveston, Harris, Fort Bend, Lubbock, Denton, McLennan, Montgomery, and Wharton Counties. I had briefed the issue, but the State dismissed the indictment the day their brief was due.
- Texas Penal Code Section 42.01(a)(8)—disorderly conduct by exhibiting a firearm in a manner calculated to alarm. The State dismissed this case as well.
- Texas Penal Code Section 21.15—improper photography. The Court of Criminal Appeals held half of this statute unconstitutional last year; we’re going after the other half, which forbids taking or broadcasting bathroom or dressing-room images with the intent to invade the privacy of the complainant or arouse or gratify the sexual desire of any person. My appeal is pending in the Fourteenth Court of Appeals; the State’s brief is due November 18th.
When the State starts prosecuting people under Section 21.16 of the Texas Penal Code—Unlawful Disclosure or Promotion of Intimate Visual Material, Texas’s new revenge-porn statute, effective September 1, 2015—I’m sure Texas lawyers will keep me in that loop as well.