Regular readers know that for nearly three years, since right after killing the dirty-talk portion of Texas’s Online Solicitation of a Minor statute, I’ve been going after the balance of that statute, which appears at first to forbid only actual solicitation (which is unprotected speech), but on further reading explicitly criminalizes protected fantasy by eliminating lack-of-defense and fantasy defenses. The argument is that the statute is constitutionally overbroad.
Texas lawyers know that I’ve racked up an impressive record of failure in the intermediate courts of appeals, which have uniformly held that the statute forbids “conduct” rather than speech.
Friends know that I’m not going to let that bunch of Mensa-aspiring civil lawyers running for reelection tell me what the U.S. Constitution protects. After all, until the Court of Criminal Appeals ruled 9–0 in Lo every court had upheld section 33.021(b) of the Texas Penal Code as well.
So I filed petitions for discretionary review in the cases in which the courts of appeals upheld the statute: Wheeler, Fisher, Alvarez, Chapman, Radford, Mahmoud, Leax, Parker, each petition different than the one before. The Court of Criminal Appeals refused the first couple (no telling why). Five of them are still pending. Last month the Court of Criminal Appeals granted discretionary review (with oral argument) in Leax.
In Leax I have presented a single issue: The Ninth Court of Appeals erred when it held that Section 33.021 is not a content-based restriction. Whether the statute is a content-based restriction (on communication) is the key to an as-written overbreadth challenge such as this one because a content-based restriction is presumed to be unconstitutional, and the State has the burden of showing that it meets strict scrutiny (by demonstrating that it is the least restrictive means of achieving a compelling government interest).
Last year the Texas Legislature amended section 33.021 to permit fantasy and lack-of-intent defenses. So conduct post September 1, 2015 is covered by a statute that probably passes constitutional muster as written. This is a good thing for three reasons. First, because it allows the State to prosecute people who intend to commit sex crimes against children. Second, because it doesn’t allow the State to prosecute people who are engaged in age play. And third, because it is proof that the pre-9/1/15 statute is not the least restrictive means of achieving the compelling government interest.
The Texas Court of Criminal Appeals has already held that if it is necessary to look at the content of the communication to decide if the speaker violated a statute — true of 33.021 — the statute is content based.
Because the Texas Legislature has already passed a less restrictive statute that achieves the same compelling government interest, section 33.021 is not likely to survive a finding that it is content based.