The Fourth Court of Appeals (Texas’s San-Antonio-based intermediate appellate court) three weeks ago in Ex Parte Thompson held unconstitutional (pdf) the portion of Texas’s improper photography statute that outlawed taking photos of other people without their consent in places other than bathrooms and dressing rooms with the intent to arouse or gratify sexual desire.

This week a twelve-year-old girl was “convicted” (adjudicated delinquent) in juvenile court of improper photography in Harris County (Chronicle). To prosecutors and the complainant’s family the case was about “bullying.”

This week the Texas Court of Criminal appeals heard oral argument in a case involving the unconstitutionality of the sexually-explicit-communication portion Texas’s online-solicitation-of-a-minor statute.

This week the Fifth Court of Appeals (the Dallas-based intermediate appellate court) in Freeman v. State held the sexually-explicit-communication portion of Texas’s online-solicitation-of-a-minor statute constitutional (pdf).

The unconstitutionality of a statute as it is written (that is, without considering the facts of the case) can be challenged pretrial with a writ of habeas corpus. The reasoning for allowing this pretrial challenge is that a person should not have to face prosecution for an unconstitutional crime.

If the trial court denies the writ of habeas corpus, the defendant can appeal to the intermediate court of appeals. That’s how Thompson got to the Fourth Court of Appeals.

If the defendant loses in the intermediate court of appeals he can appeal to the Court of Criminal Appeals. That’s how the Court of Criminal Appeals got the case it heard this week.

If the State loses in the intermediate court of appeals it can appeal to the Court of Criminal Appeals. That’s where Thompson is probably headed next.

Instead of filing a writ of habeas corpus and appealing, the trial lawyer can steam ahead and try the case. That’s what happened in Freeman. Now Mr. Freeman can ask the Court of Criminal Appeals to review the Fifth Court of Appeals’ decision. But meanwhile Mr. Freeman has to register as a sex offender, and that status has been picked up and republished by various websites. So even if he keeps his case on appeal and the Court of Criminal Appeals holds the statute unconstitutional, he’s going to have a hard time clearing his name.

Until Texas’s online-solicitation, improper-photography, and online-impersonation statutes have been stricken by the Court of Criminal Appeals or upheld by the U.S. Supreme Court, every such case ought to be sent into pretrial appellate orbit. They are plainly violative of free speech.

A content-based restriction on speech is presumed unconstitutional. It is the State’s burden to show that the statute is constitutional. The standard of review is “strict scrutiny.” This is the highest level of constitutional scrutiny, the most difficult to satisfy. To satisfy strict scrutiny, a statute must be justified by a compelling state interest, must be narrowly tailored to accomplish that interest, and must be the least restrictive means for achieving that interest.

A restriction on speech is content-based if the legality of the speech depends on its content.

So how did the Fifth Court in Freeman justify upholding the online-solicitation statute? Simple: it ignored strict scrutiny and applied a lower standard by calling speech “conduct”:

A statute is impermissibly overbroad if it includes within its coverage speech or conduct protected by the First Amendment in addition to properly prohibiting activities that are not protected. Bynum v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989); see also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). We hesitate to strike down a statute on its face because of the far-reaching effect, so we do so only “as a last resort.” New York v. Ferber, 458 U.S. 747, 769 (1982). We will not invalidate a statute for overbreadth merely because it is possible to imagine some unconstitutional application. In re Shaw, 204 S.W.3d 9, 15 (Tex. App.—Texarkana 2006, pet. ref’d) (citing Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)). The United States Supreme Court requires substantial overbreath before invalidating on its face a statute regulating conduct. Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). The Supreme Court has recognized that, particularly when conduct and not merely speech is involved, the overbreadth of a statute must “not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id. It is at the point of substantial overbreadth that the quantity of protected speech and conduct within the statute— “at best a prediction”—justifies invalidating a statute on its face. Id.

But the sexually-explicit-communication portion of the online-solicitation statute would regulate pure speech, not “conduct and not merely speech.” It doesn’t require an intent to commit any crime, but only to arouse or gratify—protected thought.

The Freeman opinion is non-sequitur laden, which is what it takes to uphold the statute in the face of a well-developed body of U.S. Supreme Court caselaw: dirty talk to kids, even with the intent to titillate (the speaker or the kids), short of obscenity or solicitation of a crime, is protected.

The Fifth Court wrote,

To paraphrase the Supreme Court, one would hardly be surprised to learn that communicating sexually explicit material to a child younger than seventeen years old is not an innocent act.

Good old common sense. One might not be surprised to learn that. The court may be surprised to learn that, innocent or not, it is protected by the First Amendment.