Ex parte Lo

424 S.W.3d 10

Ex Parte John Christopher LO.

No. PD–1560–12.

Court of Criminal Appeals of Texas.

Oct. 30, 2013.

Opinion on Denial of Rehearing March 19, 2014.

Held Unconstitutional

V.T.C.A., Penal Code § 33.021(b); V.T.C.A., Government Code § 402.010(a, b).

Mark Bennett, Bennett & Bennett, Houston, TX, for Appellant.

Jessica Akins, Assistant District Attorney, Houston, TX, Lisa C. McMinn, State's Attorney, Austin, for The State.

OPINION

COCHRAN, J., delivered the opinion of the unanimous Court.

Appellant was charged with the third degree felony of communicating in a sexually explicit manner with a person whom he believed to be a minor with an intent to arouse or gratify his sexual desire.¹ He filed a pretrial application for a writ of habeas corpus alleging that this specific subsection of the felony offense of online solicitation of a minor is facially unconstitutional ² for three distinct reasons: (1) it is overbroad and criminalizes a wide range of speech protected by the First Amendment; (2) it is vague because the term “sexually explicit” communications that “relate to” sexual conduct chills the exercise of free-speech by causing citizens to steer wide of the uncertain boundaries between permitted and prohibited speech; and (3) it violates the Dormant Commerce Clause. The trial judge denied relief, and the court of appeals affirmed.³ We granted discretionary review to determine, as a matter of first impression,⁴ whether Section 33.021(b)—the “sexually explicit communications” provision—is facially unconstitutional.⁵

Because the court of appeals used the wrong standard of review for addressing constitutional challenges to a penal statute that restricts speech based on its content, it reached the wrong conclusion. Applying the constitutionally required presumption that “content-based regulations [of speech] are presumptively invalid” ⁶ and subject to strict scrutiny,⁷ we conclude that Section 33.021(b) of the Texas Penal Code is overbroad because it prohibits a wide array of constitutionally protected speech and is not narrowly drawn to achieve only the legitimate objective of protecting children from sexual abuse. We need not, therefore, address whether the provision is also unconstitutionally vague or violates the Dormant Commerce Clause.

I.

A. The Standard of Review

Whether a statute is facially constitutional is a question of law that we review de novo.⁸ When the constitutionalityof a statute is attacked, we usually begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily.⁹ The burden normally rests upon the person challenging the statute to establish its unconstitutionality.¹⁰ However, when the government seeks to restrict and punish speech based on its content, the usual presumption of constitutionality is reversed.¹¹ Content-based regulations (those laws that distinguish favored from disfavored speech based on the ideas expressed) ¹² are presumptively invalid, and the government bears the burden to rebut that presumption.¹³ The Supreme Court applies the “most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.” ¹⁴

To satisfy strict scrutiny, a law that regulates speech must be (1) necessary to serve a (2) compelling state interest and (3) narrowly drawn.¹⁵ A law is narrowly drawn if it employs the least restrictive means to achieve its goal and if there is a close nexus between the government's compelling interest and the restriction.¹⁶ If a less restrictive means of meetingthe compelling interest could be at least as effective in achieving the legitimate purpose that the statute was enacted to serve, then the law in question does not satisfy strict scrutiny.¹⁷ Furthermore, when the content of speech is the crime, scrutiny is strict because, “as a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” ¹⁸

In this case, the court of appeals mistakenly applied the usual standard of review, including the presumption of the statute's validity,¹⁹ instead of the presumption-of- invalidity standard of review for First Amendment, content-based statutes.

First, we examine what the statute prohibits and what is its expressed legislative purpose.

B. Section 33.021 of the Texas Penal Code1. Section 33.021(c): Solicitation of a Minor.

Section 33.021 of the Texas Penal Code is titled “Online Solicitation of a Minor.” It includes subsection (c)—a provision that prohibits and punishes an actor who uses electronic communications to “solicit” a minor, “to meet another person, including the actor, with the intent that the minor will engage in” certain sexual behavior.²⁰ Such solicitation statutes exist in virtually all states and have been routinely upheld as constitutional because “offers to engage in illegal transactions [such as sexual assault of a minor] are categorically excluded from First Amendment protection.” ²¹ Thus, it is the conduct of requesting a minor to engage in illegal sexual acts that is the gravamen of the offense. The First Court of Appeals previously upheld the constitutionality of the Texas online-solicitation-of-minors statute.²² That specific provision is not at issue in this case, but it provides an excellent contrast to the provision that is at issue.

2. Section 33.021(b): Sexually Explicit Communications.

Article 33.021 contains a separate, very different, subsection (b), that prohibits and punishes speech based on its content.²³ That subsection prohibits a person from communicating online in a “sexually explicit” manner with a minor if the person has the intent to arouse and gratify anyone's sexual desire. According to the statute, “ ‘[s]exually explicit’ means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct.” ²⁴ The statute bars explicit descriptions of sexual acts, but it also bars any electronic communication or distribution of material that “relates to” sexual conduct. That bar would encompass many modern movies, television shows, and “young adult” books, as well as outright obscenity, material harmful to a minor, and child pornography.

3. The Legislative Purpose of Section 33.021.

The online-solicitation statute was enacted in 2005. As the State notes,²⁵ the legislative purpose of that provision was to “allow for the filing of charges against individuals who engage in conversations over the Internet with the intent of meeting the child for sexual activity before any physical contact takes place.” ²⁶It is directed against those who “engage in conversations over the Internet with the intent of meeting a minor for sexual activities.” ²⁷ But subsection (c), read in conjunction with subsection (d),²⁸ covers that “luring” scenario. Subsection (b) punishes, as a third-degree felony, salacious speech over the internet (but not “dirty talk” spoken face-to-face) and the distribution of sexually explicit materials over the internet (but not the distribution of those same materials hand-to-hand) to a minor as long as the actor has the intent to arouse or gratify anyone's sexual desires. It does not require that the actor ever have any intent to meet the minor for any reason. We turn now to the First Amendment.

II.

A. The First Amendment Overbreadth Doctrine

According to the First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a “substantial” amount of protected speech “judged in relation to the statute's plainly legitimate sweep.” ²⁹ The State may not justify restrictions on constitutionally protected speech on the basis that such restrictions are necessary to effectively suppress constitutionally unprotected speech, such as obscenity, child pornography, or the solicitation of minors.³⁰ “The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse.” ³¹ This rule reflects the judgment that “[t]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted[.]” ³²

Thus, in Ashcroft v. Free Speech Coalition, the Supreme Court rejected the government's argument that a statute criminalizing the distribution of constitutionally protected “virtual” child pornography ³³ was necessary to further the state's interest in prosecuting the dissemination of constitutionally unprotected child pornography that used “real” children. The government had argued that “the possibility of producing images by using computer imaging makes it very difficult for [the government] to prosecute those who produce pornography using real children.” ³⁴ Thus, according to the government, the protected speech (virtual child pornography) could be banned along with the unprotected speech (real child pornography). The Supreme Court rejected that notion entirely: “The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” ³⁵Free Speech Coalition tells us that a ban upon constitutionally protected speech may not be upheld on the theory that “law enforcement is hard,” ³⁶ and the State may not punish speech simply because that speech increases the chance that “a pervert” might commit an illegal act “at some indefinite future time.” ³⁷

The State may regulate the content of constitutionally protected speech to promote a “compelling interest,” such as the physical and psychological well-being of minors, if it chooses “the least restrictive means” to further that interest.³⁸ But it is not enough that the governmental ends are compelling, the means to achieve those ends must be narrowly drawn to achieve only those ends.³⁹

B. ...