Posted on
December 19, 2008 in
A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet or by electronic mail or a commercial online service, intentionally communicates in a sexually explicit manner with an individual who represents himself or herself to be younger than 17 years of age.
That’s one part of the Texas Online Solicitation of a Minor statute (cut and pasted for readability); it is my opinion that it violates the First Amendment by criminalizing protected communications between adults.
There is no requirement that the person on the other end of the line be a child, or even that the actor believe the person on the other end of the line to be a child. So the statute criminalizes dirty talk between adults if one of them is pretending to be a child — even if the other one knows that the other is just pretending.
Because it reaches constitutionally protected speech (for example, sexually explicit communication between two grown-ups playing “naughty teenager” on the internet — both could be prosecuted), the Online Solicitation of a Minor statute is overbroad and unconstitutional.
What do you think? First Amendment experts? Anyone?
It sounds like the reasonableness of this law depends on whether two adults role-playing that one or both are juveniles are considered to be “representing” to each other that they are juveniles, or not. If the answer the court comes up with is no, then the problem goes away.
I’m not optimistic that it will go that way, since Texas judges are not known for treating defendants reasonably. It would be far better if the law had been written so as not to allow room for misinterpretation (indeed, this ought to be a constitutional requirement for all laws).
Unconstitutional? A grown man or woman pretends to be a 14 year old teen girl and professionally lures a young man, sometimes for months. I think the constitution and common sense have gone out the window.
These statutes are clearly unconstitutional because they result in arbitrary and discriminatory enforcement, especially when one is engaging in protected speech in a venue (e.g., chat room) that is restricted to adults.
I agree it seems like with this particular offense you are guilty whether or not you are not innocent til proven guilty as stated in the constitution.Just my opinion
Where in the Constitution does it say “innocent until proven guilty”?
[…] my favorite Texas defense lawyer blog, Defending People. He has been arguing that part of the Texas law regarding Online Solicitation of a Minor is unconstitutional since 2008. Today, the Court of Criminal Appeals agreed and ruled 9-0 that part of the statue is a violation […]
It doesn’t specifically say that in the constitution but it is a part of our right under the fifth amendment to due process.