2016.004: Why Criminal First Amendment Cases Matter

Chris was charged in Texas with Online Solicitation of a Minor under Section 33.021(b) of the Texas Penal Code. He hadn’t tried to solicit anyone, but he had allegedly communicated sexually explicit words to a minor with the intent to sexually arouse or gratify himself or the minor.

Jack was charged in Georgia with Obscene Internet Contact with a Child under Georgia Code 16-12-100.2(e). He hadn’t had obscene contact with anyone, but had allegedly communicated sexually explicit words to a child with the intent to sexually arouse or satisfy himself or the child.

I stood up in the highest courts of Texas and Georgia to argue that 33.021(b) and 16-12-1002(e) violated the First Amendment by forbidding a real and substantial amount of protected speech. Texas agreed with me; we will find out by July whether Georgia does.

You might ask yourself, “how is that protected speech?”

The boiled-down judicially conservative answer is that speech is protected unless it falls into a recognized category of historically unprotected speech, and the speech forbidden by the Texas and Georgia statutes falls into no such category. (The particular question didn’t arise in Texas; in Georgia the State even admitted that no such category existed. In light of the State’s admission, upholding the statute will require judicial activism on the part of the Georgia Supreme Court.)

“Okay,” you might say, “but the alleged speech is still gross. So—Constitutional originalism aside—why should adult speech to children that is intended to sexually arouse or gratify be protected? Why does it matter to me?”

Anti-porn outfit Morality in Media knows why it matters to you. This organization (which after half a century changed its name to National Center on Sexual Exploitation to cash in on leftwing social-justice money) filed an amicus brief in the Georgia case: it knows that allowing states to forbid speech based on its lawful intent would kick in the door on the First Amendment and allow the State to forbid any speech.

If you forbid saying “X” with lawful intent Y, nobody is going to say “X” for fear that people will think he has intent Y, and indict him.

So if the State can forbid sexually explicit communications to children with the intent to arouse or gratify, it can forbid other communications to children with the intent to arouse or gratify. For example:

It is a felony to criticize a prosecutor with intent to arouse or satisfy the sexual desire of a child.

You laugh. Sure, criticism of a prosecutor with intent to arouse or satisfy the sexual desire of a child is not widespread, but it happens, and when a child is aroused by an adult, the child is harmed. The State can and must act to prevent this harm. So says National Center on Sexual Exploitation.

When a person has criticized a prosecutor, who decides whether he has spoken with the intent to arouse or satisfy the sexual desire of a child? The prosecutor decides1 who is arrested and charged, who has to bail and hire a lawyer, who faces a jury and possible imprisonment for criticizing him. You can beat the rap, but you can’t beat the ride.

Which is fine, because we trust prosecutors. And children must be protected.

Except that we don’t trust prosecutors. So anyone facing the choice of criticizing the prosecutor under this regime would be well-advised to keep his mouth shut.

National Center on Sexual Exploitation‘s mission is not to eliminate criticism of prosecutors but to eliminate pornography. So if you like pornography, or you don’t like pornography but you like something that National Center on Sexual Exploitation‘s right-wing harpies think is pornography, or if your tastes in entertainment coincide exactly with said harpies’ tastes but you still think the government shouldn’t punish people whose tastes differ from yours, that’s why it matters to you.


  1. We all know how much independence grand juries show. 

6 Comments

  1. With 33.021(b) ruled unconstitutional, will Texas ever have consequence for devastating so many lives? Or does Texas reap the benefits of all the revenue created by this unlawful law, with those affected left trying to pick up the pieces?
    I am one of those who were crucified with this law.

    1. In my case they didn’t necessarily benefit much. When my case was dismissed, my attorney made the judge stated that I get reimbursed the expenses I paid in my fees and fines.

    2. Mark … Do you know if there is a time limit for requesting probation fee reimbursement? I was convicted in 2010 … did about a year and a half probation and was then sent to prison (probation revoked). I was way ahead of my probation fees since I did not want them to use that as an excuse to revoke me. My PO was not exactly my best friend. One of my restrictions included only being able to use a computer at work … all the computers in my house had to be in a locked room that I did not have access to … but occasionally I would type in a password to log my kids in for school work (when my wife was not around). In a subsequent polygraph I was told I didn’t “score real well” in a particular section and I mentioned the whole “kids and password” thing … and it went south from there. Eight months later I was on a bus pulling in to the Holliday unit.
      Anyways … I received my expunction in early 2015 but I’ve always wondered what, if anything, I could get back financially. I’m guessing an apology from my old PO is not in the cards. Thanks for any thoughts.

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