2016.004: Why Criminal First Amendment Cases Matter

 Posted on February 25,2016 in Uncategorized

Chris was charged in Texas with Online Solicitation of a Minor under Section 33.021(b) of the Texas Penal Code. He hadn't tried to solicit anyone, but he had allegedly communicated sexually explicit words to a minor with the intent to sexually arouse or gratify himself or the minor.

Jack was charged in Georgia with Obscene Internet Contact with a Child under Georgia Code 16-12-100.2(e). He hadn't had obscene contact with anyone, but had allegedly communicated sexually explicit words to a child with the intent to sexually arouse or satisfy himself or the child.

I stood up in the highest courts of Texas and Georgia to argue that 33.021(b) and 16-12-1002(e) violated the First Amendment by forbidding a real and substantial amount of protected speech. Texas agreed with me; we will find out by July whether Georgia does.

You might ask yourself, "how is that protected speech?"

The boiled-down judicially conservative answer is that speech is protected unless it falls into a recognized category of historically unprotected speech, and the speech forbidden by the Texas and Georgia statutes falls into no such category. (The particular question didn't arise in Texas; in Georgia the State even admitted that no such category existed. In light of the State's admission, upholding the statute will require judicial activism on the part of the Georgia Supreme Court.)

"Okay," you might say, "but the alleged speech is still gross. So-Constitutional originalism aside-why should adult speech to children that is intended to sexually arouse or gratify be protected? Why does it matter to me?"

Anti-porn outfit Morality in Media knows why it matters to you. This organization (which after half a century changed its name to National Center on Sexual Exploitation to cash in on leftwing social-justice money) filed an amicus brief in the Georgia case: it knows that allowing states to forbid speech based on its lawful intent would kick in the door on the First Amendment and allow the State to forbid any speech.

If you forbid saying "X" with lawful intent Y, nobody is going to say "X" for fear that people will think he has intent Y, and indict him.

So if the State can forbid sexually explicit communications to children with the intent to arouse or gratify, it can forbid other communications to children with the intent to arouse or gratify. For example:

It is a felony to criticize a prosecutor with intent to arouse or satisfy the sexual desire of a child.

You laugh. Sure, criticism of a prosecutor with intent to arouse or satisfy the sexual desire of a child is not widespread, but it happens, and when a child is aroused by an adult, the child is harmed. The State can and must act to prevent this harm. So says National Center on Sexual Exploitation.

When a person has criticized a prosecutor, who decides whether he has spoken with the intent to arouse or satisfy the sexual desire of a child? The prosecutor decides ((We all know how much independence grand juries show.)) who is arrested and charged, who has to bail and hire a lawyer, who faces a jury and possible imprisonment for criticizing him. You can beat the rap, but you can't beat the ride.

Which is fine, because we trust prosecutors. And children must be protected.

Except that we don't trust prosecutors. So anyone facing the choice of criticizing the prosecutor under this regime would be well-advised to keep his mouth shut.

National Center on Sexual Exploitation‘s mission is not to eliminate criticism of prosecutors but to eliminate pornography. So if you like pornography, or you don't like pornography but you like something that National Center on Sexual Exploitation‘s right-wing harpies think is pornography, or if your tastes in entertainment coincide exactly with said harpies' tastes but you still think the government shouldn't punish people whose tastes differ from yours, that's why it matters to you.