Posted on
January 31, 2018 in
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.
Wait, they may almost have something here. OK, the statute fails as to the person posting the material, no doubt about that, since it is a content-based speech regulation. This may cover all the persons charged to date.
But the speech is kind of integral to someone else’s criminal conduct. Consider the guy who says that he will keep the material posted on his website unless you pay $200 .. $500 to the “takedown hammer” guy. That could run afoul of blackmail statutes.
Not licensed in Texas, no idea if Texas has a blackmail statute, do not normally do criminal, and so on.
Interestingly, the Supreme Court has never signed off on “blackmail” or “extortion” as a category of historically unprotected speech.
Have they ever refused to do so?
Nope. Unaddressed question. I suspect the answer is “obv.”
True. I tend to think of blackmail or extortion as requiring something beyond pure speech. In Florida, blackmail is deemed coersion, and is lumped in with what we might call “true threats”.
Your analysis is incorrect. “True threats” are speech; they are just historically unprotected speech. (The scope of that unprotected speech is an interesting open question.) I would guess that common-law extortion is historically unprotected speech.