When Grant Scheiner first approached me about challenging the online-solicitation-of-a-minor statute before trial, we thought we were probably just postponing an inevitable trial on the merits. The client was accused of “with the intent to arouse and gratify the sexual desire of the defendant, intentionally communicating in a sexually explicit manner with [the complainant] . . . whom the defendant believed to be younger than 17 years of age, by text message.” It seemed intuitively obvious that an adult couldn’t talk dirty to a child with the intent to arouse or gratify his own sexual desire. But I had challenged Texas Penal Code Sec. 33.021(b) before, with some success in trial courts, in cases involving complainants representing themselves to be children—so we knew there was something wrong with the statue. We just didn’t realize how much was wrong with it.
There are two ways to attack the constitutionality of a statute: with a motion to quash or with a writ of habeas corpus. The denial of a motion to quash is not appealable before trial, so if we had challenged the constitutionality of the statue with a motion to quash, we would have had to try the case before appealing.
If the client had been convicted of online solicitation of a minor, he would immediately have had to register as a sex offender. His registration would have spread across websites that revel in and profit from republishing the misfortunes of others; that stain would have been indelible.
The facial (as opposed to “as applied”) unconstitutionality of a statute can be asserted with a pretrial writ of habeas corpus, and the denial of such a writ can be appealed before trial. See Ex Parte Ellis, 309 S.W.3d 71, 79 (Tex. Crim. App. 2010). It seemed obvious to us that the proper procedure in this case would be to file a writ of habeas corpus alleging that Section 33.021(b) violated the First Amendment. Then we could appeal the trial court’s denial of the writ, assuming 248th District Court Judge Joan Campbell in fact denied our writ.
So we did.
And she did.
We appealed to the First Court of Appeals in Houston. We took our time filing the brief, making certain our argument was thoughtful and well-researched. (As the late Percy Foreman said, “A continuance is as good as an acquittal, for as long as it lasts.”) The State briefed the issue. The court didn’t hear argument; it issued an opinion upholding the statute. Lo v. State, 393 S.W.3d 290 (Tex. App.—Houston (1st Dist.) 2011, rev’d, Ex Parte Lo, __S.W.3d__ (Tex. Crim. App. 2013). We filed a motion for rehearing. It was then—when addressing the First Court’s opinion—that I realized that Grant and I were right.
I remember excitedly calling Grant when I finished the first draft for our rehearing: “I think we’re right. We might win this.”
Ten months later the First Court denied our motion for rehearing. It had been 33 months since our client had been charged, and two years since we had filed our writ on his behalf.
Once we realized that we were right—that Section 33.021(b) did not pass muster under current Supreme Court standards—the pace picked up. It took 364 days from filing PDR to getting a unanimous 25-page opinion.
Traditionally, a content-based speech restriction is presumptively invalid, and the State has the burden of showing that the statute meets strict scrutiny. In this case the Court of Criminal Appeals held that the State had failed to show that Section 33.021(b) survived strict scrutiny.
“Sexually explicit” communications are defined as anything that relates to sex. It’s hard to imagine something that doesn’t, in some way, relate to sex. The State argued that coupling “sexually explicit” with “the intent to arouse or gratify” narrowed the statute sufficiently to satisfy the First Amendment. But the intent to arouse or gratify sexual desire is not forbidden thought, and sexually explicit communications are not forbidden speech; the court found that coupling the two did not render the restriction constitutional:
“Section 33.021(b) prohibits constitutionally protected speech when that speech is coupled with constitutionally protected thought. . . . [C]onsistent with the First Amendment, it is conduct designed to induce a minor to commit an illegal sex act with titillating talk that may be proscribed, not the titillating talk itself.”
I say that strict scrutiny is “traditionally” the test because this is in doubt after U.S. v. Stevens (559 U.S. 460 (2010)), in which the Supreme Court did not mention strict scrutiny, rejected any sort of balancing test as “startling and dangerous,” and applied a categorical test: If the forbidden speech falls within a category of traditionally unprotected speech, the statute is valid; otherwise it is not. The result in our case would have been the same had the Texas Court of Criminal Appeals applied a strict categorical test, but it’s something to keep in mind for future challenges to Texas statutes regulating speech.
What Happens Next
At the time of writing, the Harris County District Attorney’s Office’s public position is that the office will have to review what to do about anyone convicted under the voided law. We hope that Harris County will agree to relief, and that other counties will follow their lead. It’s inherently unfair for people to remain in prison, remain on probation, keep registering as sex offenders, or have criminal records for violating an unconstitutional law. But even if the State agrees to relief, there will be no one-size-fits-all solution; a single lawyer taking the wrong approach for a particular defendant might screw things up for many other defendants.
For the same reasons that Section 33.021(b) is unconstitutional, Texas’ improper-photography and online-impersonation statutes are unconstitutional under either strict scrutiny or the categorical test. There may be others, as well. Unless it has already been vetted by the Court of Criminal Appeals, any statute that forbids speech based on its content should be scrutinized and tested—even if intermediate courts have already upheld it—and such litigation, as Grant and I learned, is highly specialized, with a long learning curve. If you are fighting charges for a statute that you think might violate the First Amendment, please drop me an email at .