Three Overbroad Texas Penal Statutes

 Posted on November 29, 2012 in Uncategorized

(Despite the "hey, look at me, I'm a list" title, this is a post for law geeks).

The Texas online-solicitation-of-a-minor statute, Texas Penal Code Section 33.021 (as it existed before September 1, 2015) violates the First Amendment to the United States Constitution because it bars adults making sexually-related communications that are neither solicitative nor obscene to minors.

The Texas online-impersonation statute, Texas Penal Code Section 33.07, violates the First Amendment to the United States Constitution because it bars posting webpages using the name of another person, even if not impersonative, to post harmful content, even if truthful.

The Texas improper-photography statute, Texas Penal Code Section 21.15, violates the First Amendment to the United States Constitution because it bars publishing without consent an image of another made with that person's consent.

One thing that all of these cases have in common is that they are misnamed. 33.021 is about more than solicitation. 33.07 is about more than impersonation. 21.15 is about more than photography.

Each of these statutes outlaws some communication based on its content. What Texas would outlaw with each of these three statutes is not defamatory, is not inciteful, is not obscene (not even as to children) and is not integral to criminal conduct.

In order to uphold these three statutes, the U.S. Supreme Court would have to add at least two entirely new categories of unprotected speech to the four it has recognized in the past.