The State's Revenge-Porn Arguments 4: Speech Integral to Criminal Conduct

 Posted on January 31,2018 in Uncategorized

Having failed to justify section 21.16(b) of the Texas Penal Code as an obscenity statute, the State seeks hope elsewhere in the Supreme Court's enumeration of categories of historically unprotected speech.

Aha! Speech incident to criminal conduct!

Section 21.16(b) restricts only speech causing harm, and that's criminal conduct, right?

Well, no.

To be speech integral to criminal conduct, the speech has to be an integral part of conduct in violation of a valid criminal statute.

We harm each other in many different ways. We offend, and embarrass, and outrage each other. There is no valid criminal statute forbidding it. Nor should there be.

The only thing that makes the speech restricted to section 21.16(b) criminal is... section 21.16(b). As the State conceded in Lopez, pending in the Beaumont Court of Appeals,

It is bootstrap-pulling to argue that a statute is constitutional because it falls within a category of statutes that prohibits behavior.

Section 21.16(b) cannot justify itself as a restriction on conduct integral to violation of itself. Otherwise every speech restriction would be a valid speech restriction.