By Chuck Lindell
Texas’ highest criminal court Wednesday invalidated a state law that banned sexually explicit Internet communication between an adult and a minor, ruling the 2005 statute violates free speech protections.
A companion law criminalizing the sexual solicitation of minors was upheld by the state Court of Criminal Appeals.
Lawyers for the state had argued that without the ban on sexually explicit communication, “perverts will be free to bombard our children with salacious emails and text messages, and parents and law enforcement would be unable to stop it,” the unanimous ruling noted.
But the court said Texas children are protected by other laws that have passed constitutional scrutiny, including statutes banning solicitation, obscenity, harassment and the distribution of harmful materials to minors.
The now-invalidated state law prohibited adults from engaging in sexually explicit online communication with a minor with the intent of sexual gratification.
Laws limiting the First Amendment right to free speech based on the content of that speech — like the Texas statute on online sexually explicit communication — are presumed to be constitutionally invalid unless they serve a compelling state interest and are narrowly drawn to limit their impact, the appeals court said.
The opinion by Judge Cathy Cochran acknowledged that the state has a well-established interest in protecting children from child predators.
But the Texas law was not narrowly written, she wrote, instead covering “a whole cornucopia of ‘titillating talk’ or ‘dirty talk,’” including sexually explicit literature such as “Lolita,” “50 Shades of Grey,” “Lady Chatterly’s Lover” and Shakespeare’s “Troilus and Cressida.”
Cochran listed other “sexually explicit television shows, movies, and performances” improperly covered by the law, including Janet Jackson’s wardrobe malfunction during the 2004 Super Bowl and Miley Cyrus’s “twerking” during the 2013 MTV Video Music Awards.
“In sum, everything (the law) prohibits and punishes is speech and is either already prohibited by other statutes — such as obscenity, distributing harmful material to minors, solicitation of a minor, or child pornography — or is constitutionally protected,” Cochran wrote.
In its ruling, the court dismissed a pending indictment against _____ of Harris County, whose trial had been delayed while he challenged the law’s constitutionality. _____ had been charged with communicating in a sexually explicit manner with somebody he believed was a minor, a third-degree felony.