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Texas appeals court scrutinizes state law barring possession of child erotica images

East Texas prosecutors used the law to secure an indictment against Netflix in October 2020, accusing the company of promoting lewd images of children by streaming a French film about an 11-year-old girl who joins a dance crew.

AUSTIN, Texas (CN) — A Texas statute that criminalizes possession of images lewdly displaying the pubic area of clothed children puzzled jurists of the state’s highest criminal court Wednesday. They must decide if it violates the First Amendment.

Opponents of the statute say it is unnecessary because Texas already has anti-child porn laws and in its efforts to broaden their scope, the Legislature has potentially made it a crime for young Instagram and TikTok influencers to post videos of themselves in provocative clothing and put any Texan who follows their social media accounts in jeopardy of being charged.

Prosecutors in Houston’s Harris County convinced a grand jury to return an indictment in March 2019 against Michael Lowry for violating a statute the Texas Legislature passed in 2017 to outlaw possession or promotion of child erotica images, a conviction for which is a state jail felony carrying a maximum sentence of two years in jail and a $10,000 fine.

Lowry, 52, asked the trial judge to toss out his indictment. He argued in a habeas application the statute is facially unconstitutional.

The judge disagreed, but in October 2021 a panel of the First Texas Court of Appeals sided with Lowry. It determined the statute is overbroad because it “attempts to regulate visual material that is inherently expressive and that is protected by the First Amendment.”

The Harris County District Attorney’s Office asked the all-Republican Texas Court of Criminal Appeals to review the case, and it heard arguments Wednesday.

“Didn’t the Legislature enact this statute to close a loophole that they saw in the child pornography statute?” Judge Michelle Slaughter asked Patricia McLean, a Harris County assistant district attorney.

“Yes,” McLean replied. She said child erotica images are often found by police investigating people who have collections of child pornography.

“In certain cases, only those lewd exhibitions of pubic areas or clothed children are found,” McLean explained. “And in those cases charges cannot be filed, which is why this statute was enacted in the first place.”

Judge David Newell asked McLean about the cover of the band Nirvana’s 1991 “Nevermind” album: “That’s got a baby and you can see his genitals. Is that going to be the kind of thing that we criminalize under this statute?”

McLean said no. She noted to qualify for prosecution an image must have no serious artistic, literary, political or scientific value and appeal to a prurient interest in sex.

As for lewdness, McLean said a judge would have to consider the shot: “Is it zoomed in?” “Is the child posed in a sexually suggestive manner?”

“In that cover it’s a baby in a swimming pool," she said. "So those factors would also come into play to determine whether that was a lewd exhibition or not.”

Due to the pretrial status of the case, it has not been disclosed how Lowry obtained the image he was indicted over, who is in the image and if police found him with it or someone else reported he had it.

His attorney, Jonathan Landers of Houston, did not respond to an email after Wednesday’s hearing asking for this background information.

Landers seized on the bewilderment expressed by Judge Bert Richardson, who said he did not understand how it could get to the point of being lewd material if the child is clothed.

“That is what is so confusing about the statute, quite frankly,” Landers agreed, “is we are trying to figure out what is a lewd exhibition in this case of clothed pubic areas.”

Landers argued the statute is overbroad as evidenced by the fact that East Texas prosecutors used it to secure an indictment against Netflix in October 2020, accusing the company of promoting lewd images of children by streaming the French film “Cuties,” which is about an 11-year-old Senegalese immigrant who joins a dance crew.

Prosecutors have reportedly dismissed the charge of displaying child erotica against Netflix. But Landers said the danger of unlawful indictments in such situations is not limited to Netflix.

“Let’s say that movie ‘Cuties’ falls under this statute but not the child pornography statute,” Landers said. “One thing that’s interesting about that is it would not subject only Netflix to prosecution, it would subject anyone in Texas who has watched that movie and potentially anyone that has Netflix and therefore might be said to have possessed it.”

On rebuttal, McLean, the Harris County prosecutor, argued Landers had forfeited his claims the statute is overbroad because he affirmatively said he was not arguing overbreadth before the trial judge.

Eight of the Texas Court of Criminal Appeals’ nine judges heard the case Wednesday. They did not say when they would issue a ruling.

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