In light of the Texas Court of Criminal Appeals decision holding Section 33.021(b) of the Texas Penal Code (the “dirty talk” portion of the Online Solicitation of a Minor Statute) unconstitutional under the First Amendment, there is a good constitutional challenge to Section 33.021(c) (the “solicitation” portion of the Online Solicitation of a Minor Statute):

A person commits an offense if the person, over the Internet or by electronic mail or a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

As a preliminary matter, this is a content-based speech restriction: to determine whether the law is violated you have to determine whether the communication is solicitative or not. If it is not solicitative speech (for example, the dirty talk forbidden by 33.021(b)), it is not forbidden by 33.021(c).

In Maloney v. State the First Court of Appeals upheld the constitutionality of Section 33.021(c) in the face of a vagueness and overbreadth challenge. It analyzed the statute as one regulating conduct rather than speech. But the analysis is wrong. Solicitation is speech—unprotected speech, but speech nonetheless. The correct approach, following Stevens v. United States, is to ask whether the speech forbidden by Section 33.021(c) is within a historically unprotected category.

Solicitation is a historically unprotected category of speech, but the category is narrowly drawn—as the Court said in the 2008 case U.S. v. Williams,

Many long established criminal proscriptions—such as laws against conspiracy, incitement, and solicitation—criminalize speech…that is intended to induce or commence illegal activities.

Or in the 1969 case Brandenburg v. Ohio,

[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Various child-solicitation statutes have been upheld. And soliciting a child to meet for sex is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” and so is unprotected under the Brandenburg test…or is it?

Here’s where the Texas Legislature overreached itself. Section 33.021(d) of the Texas penal code says:

It is not a defense to prosecution under Subsection (c) that:
…;
(2)  the actor did not intend for the meeting to occur;  or
(3)  the actor was engaged in a fantasy at the time of commission of the offense.

If the defendant did not intend for the meeting to occur and was engaged in a fantasy at the time of his words, then his words were not “directed to producing imminent lawless action,” were not solicitation, and do not lose First Amedment protection. Sections 33.021(c) and (d) combined explicitly criminalize fantasy, forbidding speech—fantasy speech—that is protected by the First Amendment.

It gets worse. Section 33.021(a) defines “minor” as (among other things) “(A) an individual who represents himself or herself to be younger than 17 years of age.” So if the “minor” is just pretending to be a minor, and the defendant knows it, and the defendant sends a text proposing a meeting for sex with no intent that it happen, the defendant has committed a felony. If you and your longtime partner have ever engaged in “age play” in which you were both sixteen again, and you text her suggesting that you meet for sex, boom. Felony.

@MarkWBennett Congrats. You’ve been saying this for a while. It’s like Babe Ruth calling his own shot. https://t.co/VuLhGjoW2H

— Robert Guest (@RobertSGuest) October 30, 2013

You read it here first: Section 33.021(c), combined with Section 33.021(d), is unconstitutional.

Add it to the list with improper photography and online impersonation.

I hate to sound unnecessarily arrogant, but there are very few lawyers in Texas whom I would trust to handle these challenges. This is a very specialized area of the law, at the intersection of the First Amendment and criminal law. Most lawyers thought I was crazy to say that 33.021(b) was unconstitutional; they kept pleading those cases even after they knew about the pending appeal in the Texas Court of Criminal Appeals.

If you’re a lawyer, please don’t try this at home. Call me and we’ll do it together.