When I argued Ex Parte Lo at the Court of Criminal Appeals, I used section 33.021(c), the “actual solicitation” portion of Texas’s Online Solicitation of a Minor statute as an example of a constitutional limitation on speech. I hadn’t given section 33.021(c) a lot of close attention, but it talked about “soliciting” a “minor” for sex, and soliciting a minor for sex is generally recognized as unprotected speech.

Looking at it more closely, it’s obvious that the “solicitation” described by section 33.021(c) is not necessarily solicitation (because a defendant cannot raise his lack of intent to meet as a defense) and the “minor” described by section  33.021(c) is not necessarily a minor (because it can be an adult who represents himself to be a minor, but whom the defendant knows not to be a minor). Non-solicitation of a minor is constitutionally protected speech, as is solicitation of a non-minor.

But now that the section 33.021(c) cases are rolling in and I’m challenging the constitutionality of that statute, my ill-thought-out argument in Lo, holding up section 33.021(c) as an example of a speech restriction done right, is coming back to bite me in the butt: in its opinion in Lo the Court of Criminal Appeals adopted, in dicta, that particular argument.

Now I’m much more careful about agreeing that a content-based restriction on speech is valid. So this caught my eye:

Arizona’s law clearly violates the First Amendment, because it criminalizes protected speech,” said Lee Rowland, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. She added, “States can address malicious invasions of privacy without treading on free speech, with laws that are carefully tailored to address real harms.”

(ACLU.org)

I wonder how Rowland derived this principle of First Amendment law. Neither “malicious speech,” “invasions of privacy,” “malicious invasions of privacy,” nor “really harmful speech” is a category of speech that the Supreme Court has identified as unprotected.

The ACLU

is our nation’s guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country.

These rights include:

• Your First Amendment rights – freedom of speech, association and assembly; freedom of the press, and freedom of religion.
• Your right to equal protection under the law – protection against unlawful discrimination.
• Your right to due process – fair treatment by the government whenever the loss of your liberty or property is at stake.
• Your right to privacy – freedom from unwarranted government intrusion into your personal and private affairs.

Criminalization is the opposite of liberty. Admitting the possibility of criminalization when there’s no constitutional basis for it is giving up that fight before it begins.

[Updated because of a unaccountable reading-comprehension fail on my part. I’m glad I got to it before anyone, y’know, read it.]