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Texas Can’t Ban|Dirty Online Speech

AUSTIN (CN) - A Texas law banning sexually explicit online conversations with minors is unconstitutionally overbroad and infringes on protected speech, the state's highest criminal court ruled.

In a unanimous decision, the Texas Court of Criminal Appeals ruled that the subsection of the 2005 law "is not narrowly drawn to achieve only the legitimate objective of protecting children from sexual abuse."

The appeals court dismissed a pending indictment against John Christopher Lo, of Harris County. He was charged with a third-degree felony for communicating in a sexually explicit manner with a person he believed to be a minor with an intent to arouse or gratify his sexual desire.

Lo's pretrial application for writ of habeas corpus, alleging the law is unconstitutional, was rejected by the trial judge. The Texas First Court of Appeals in Houston affirmed such dismissal, but the high court granted discretionary review to determine whether the law is facially unconstitutional.

Writing for the court Wednesday, Judge Cathy Cochran attributed the incorrect handling of the case to the wrong standard of review regarding the constitutional challenges.

"Applying the constitutionally required presumption that 'content-based regulations [of speech] are presumptively invalid' and subject to strict scrutiny, we conclude that Section 33.021(b) of the Texas Penal Code is overbroad because it prohibits a wide array of constitutionally protected speech and is not narrowly drawn to achieve only the legitimate objective of protecting children from sexual abuse," Cochran wrote.

When the constitutionality of a statute is questioned, the burden normally rests with the challenger to establish its unconstitutionality, the judge ruled.

"However, when the government seeks to restrict and punish speech based on its content, the usual presumption of constitutionality is reversed," according to the 25-page opinion. "Content-based regulations (those laws that distinguish favored from disfavored speech based on the ideas expressed) are presumptively invalid, and the government bears the burden to rebut that presumption."

Cochran said the lower appeals court "mistakenly" applied the former standard of review that presumed the statute's validity. She said the state is allowed to regulate the content of protected speech to promote a "compelling interest," such as the well-being of minor, if it chooses the least restrictive means to do so.

"But it is not enough that the governmental ends are compelling, the means to achieve those ends must be narrowly drawn to achieve only those ends," the opinion states.

"Although the state has a compelling interest in protecting children from sexual predators, this 'explicit sexual communications' provision is not narrowly drawn to achieve that legitimate goal. Indeed, this subsection does not serve any compelling interest that is not already served by a separate, more narrowly drawn, statutory provision."

The judge added: "Subsection (b) covers a whole cornucopia of 'titillating talk' or 'dirty talk.' But it also includes sexually explicit literature such as 'Lolita,' '50 Shades of Grey,' 'Lady Chatterley's Lover,' and Shakespeare's 'Troilus and Cressida.' It includes sexually explicit television shows, movies, and performances such as 'The Tudors,' 'Rome,' 'Eyes Wide Shut,' 'Basic Instinct,' Janet Jackson's 'Wardrobe Malfunction' during the 2004 Super Bowl, and Miley Cyrus' 'twerking' during this year's MTV Video Music Awards. It includes sexually explicit art such as 'The Rape of the Sabine Women,' 'Venus De Milo,' 'the Naked Maja' or Japanese Shunga."

Cochran found that the solicitation-of-a-child provision in the law does serve a compelling purpose, but that subsection (b) does not.

She said the subsection may take the step of protecting children from predators before "they ever express any intent to commit illegal sexual acts," but it also bans constitutionally protected speech.

"The state argues that this provision is intended to target 'grooming' by predators who develop a relationship with their intended victim by befriending the child online, developing their trust, and then eventually engaging in sexually explicit conversations," the opinion states. "We are unable to find anything in the 2005 legislative history to support an intent to criminalize 'grooming' by titillating speech. The intent expressed in the bill analyses, the committee hearings, and the floor debate was that the crime of solicitation of a minor on the Internet is complete at the time of the Internet solicitation, rather than at some later time if and when the actor actually meets the child. Furthermore, the Supreme Court has rejected the notion that allowing the dissemination of 'virtual' child pornography would 'whet the appetites of pedophiles,' and therefore could be banned. We must do the same here."

Before remanding the case to dismiss the indictment against Lo, Cochran emphasized that the law must be focused on prohibiting improper actions between adults and minors.

"A man's thoughts are his own; he may sit in his armchair and think salacious thoughts, murderous thoughts, discriminatory thoughts, whatever thoughts he chooses, free from the 'thought police," she wrote.

"It is only when the man gets out of his armchair and acts upon his thoughts that the law may intervene," Cochran added.

A harassment law already on the books bans and punishes obscene electronic communications, anyway, according to the ruling.

Appellate attorney Mark Bennett, of Houston, applauded the ruling.

Bennett told the Houston Chronicle that parents, not government, should police who their children talk to and what is said.

"Parents have the job of dealing with this. This is not the government's job," Bennett told the newspaper.

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