In re Lowry

693 S.W.3d 388

EX PARTE Michael LOWRY, Appellant

NO. PD-0887-21

Court of Criminal Appeals of Texas.

Delivered: July 31, 2024

West Codenotes

Negative Treatment Reconsidered

Tex. Penal Code Ann. § 43.262(b)

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS, HARRIS COUNTY

Patricia McLean, for State.

Jonathan Landers, for Appellant.

OPINION

Hervey, J., delivered the opinion of the Court in which Keller, P.J., and Richardson, Newell, Walker, and McClure JJ., joined.

Section 43.262(b) of the Penal Code prohibits a person from knowingly possessing, accessing with intent to view, or promoting visual material that depicts the lewd exhibition of the genitals or pubic area of an unclothed, partially clothed, or clothed child who is younger than 18 years old when the visual material was created and if the visual material appeals to the prurient interest in sex and has no serious literary, artistic, political, or scientific value. We granted review to decide whether Section 43.262(b) is facially unconstitutional because it restricts too much protected speech and whether it is overbroad for violating the rights of too many third parties. The court of appeals held that Section 43.262(b) is unconstitutional on both bases. We will reverse the judgment of the court of appeals and remand this case to the court of appeals to address the remaining points of error.

I. Background

The record has not been fully developed because this case is about a pretrial writ application. But according to the probable-cause affidavit, investigators from the Montgomery County District Attorney’s Internet Crimes Against Children Task Force conducted an undercover operation. Appellant became a person of interest, and investigators eventually executed a search warrant and found child pornography on his cell phone. A grand jury indicted Appellant under Section 43.262(b) for knowingly possessing visual material—a photograph, depicting the lewd exhibition of the pubic area of a clothed child, who was younger than 18 years old when the photograph was created, and the photograph appealed to the prurient interest in sex and had no serious literary, artistic, political, or scientific value.

A. Pretrial Application for a Writ of Habeas Corpus, Notice of Additional Evidence & the State’s Response

i. Pretrial Writ Application

Appellant filed a pretrial writ application, arguing that Section 43.262 is unconstitutional for five reasons: (1) it is an impermissible content-based restriction on protected speech that fails strict scrutiny, (2) it does not regulate obscenity, (3) it is overbroad because the statute includes, within its plainly legitimate sweep, a substantial amount of protected speech, (4) it is void for vagueness, and (5) it violates Article I, Section 8 of the Texas Constitution.¹ We address each claim in turn.

a. Appellant’s Argument That Section 43.262(b) Regulates Protected Conduct and Fails Strict Scrutiny

Appellant argued that Section 43.262(b) fails strict scrutiny because, although the State has a compelling interest in regulating obscenity and child pornography, Section 43.262(b) regulates "child erotica," which is a distinct category of speech. He also argued that, even if the State had met its burden to show it has a compelling interest in regulating child erotica, it did not show that Section 43.262(b) furthers that interest or that Section 43.262(b) is narrowly tailored.

b. Appellant’s Argument That Section 43.262(b) Does Not Regulate Obscenity

Appellant asserted that Section 43.262(b) does not regulate obscenity because it did not require that the visual material must be "patently offensive." Appellant noted that an earlier version of the bill included that element but that the legislature removed it before the bill’s final passage. He also argued that the legislature should have included a scienter requirement for the visual material because, as currently written, a person is guilty even if they did not know that the visual material is prohibited under Section 43.262(b).

c. Appellant’s Argument That Section 43.262(b) is Unconstitutionally Overbroad

Appellant argued that the statute is overbroad because "most Instagram ‘social influencers’ under the age of 18, who in reality do nothing more than post provocative, but clothed, pictures of themselves online for their millions of followers" would be guilty under Section 43.262(b). In a Notice of Additional Evidence, Appellant cited the Netflix documentary, Cuties, which he asserted, "is a French film about an 11-year-old Senegalese immigrant who joins a dance group" and includes "a minute-long scene with close-ups of the girls in the dance group gyrating their thighs, butts and stomachs …. "² Appellant also cited an indictment out of Tyler County charging Netflix under Section 43.262(b) for distributing Cuties. These examples, Appellant argued, showed that his overbreadth claim is not based on mere hypotheticals but real-world happenings. Appellant further observed that "[t]he film’s writer and director, Maïmouna Doucouré, said that ‘Cuties’ is a critique of the hypersexualization of young girls" and that it is meant to protect children, not harm them.

d. Appellant’s Argument That Section 43.262(b) is Void for Vagueness

Appellant argued that Section 43.262(b) is void for vagueness because a person of ordinary intelligence is not on notice as to what it prohibits. For support, he cited the Netflix indictment and his belief that the Tyler County District Attorney unwittingly violated Section 43.262(b) when he admitted to knowingly accessing Cuties with the intent to view.³

ii. State’s Response

The State began its response by discussing the black-letter law of the overbreadth doctrine, but it did not address the specifics of Appellant’s claim. It correctly noted that the defendant bears the burden to show that the law is unconstitutionally overbroad. The State argued that Section 43.262(b) restricts only unprotected speech, obscenity, and child pornography, and it relied on courts of appeals decisions holding that the "Possession or Promotion of Child Pornography" and the "Promotion of a Sexual Performance by a Child" statutes are constitutional.⁴

B. The Hearing

i. Appellant’s Arguments

At the hearing, Appellant argued that Section 43.262(b) is facially unconstitutional because it restricts too much protected speech, it is overbroad and violates the rights of too many third parties, and it is void for vagueness. He also responded to the State’s argument that Appellant bore the burden of proof.

Appellant contended that strict scrutiny applies because Section 43.262(b) is a content-based restriction, meaning that the burden of proof is on the State to rebut the presumption that the statute is unconstitutional. According to the Appellant, the State could rebut that presumption only by showing that it has a compelling interest in regulating child erotica, that Section 43.262(b) furthers that interest, and that Section 43.262(b) is narrowly tailored to further the State’s compelling interest. Appellant also argues that the statutes and courts of appeals cases relied on by the State are distinguishable because this case does not involve the "Possession of Child Pornography" or "Promotion of a Sexual Performance" statutes, and the court of appeals’ opinions addressed those statutes, not the one at issue here.

ii. State’s Arguments

Although the State did not address Appellant’s over-breadth claim in its response to his pretrial application, it did at the hearing. It argued that knowingly accessing with intent to view or promoting Cuties is not a crime because the documentary has some political, literary, and artistic value. The judge reminded the State that a Tyler County grand jury disagreed, indicting Netflix under Section 43.262(b), and the State responded that the Harris Coun- ty District Attorney’s Office disagrees with the Tyler County District Attorney’s interpretation.

The State also argued that child erotica is obscene and is child pornography, both of which the State has a compelling interest in regulating. Therefore, it continued, Section 43.262(b) should be considered an expansion of existing obscenity and child-pornography laws. The State also argued that the statute is narrowly tailored because it is "limited to images or visual materials that appeal to the [prurient] interest [in] sex and have no culturally redeeming value …. " According to it, these limitations narrow the scope of the statute to only depictions involving obscenity, child sexual abuse, and child exploitation.

The State conceded that adding an additional scienter requirement reduces the vagueness of a statute, but it asserted that the lack of a scienter requirement does not necessarily mean a statute is unconstitutionally vague. It argued that the statutory language of Section 43.262(b) is not void for vagueness because it is specific enough to give an ordinary person fair notice of what the statute proscribes.

iii. The Ruling

At the end of the hearing, the trial court orally denied Appellant’s pretrial writ application. It concluded that Section 43.262(b) is a content-based restriction and that it passes strict scrutiny. It found that Section 43.262(b) regulates only obscenity and child pornography, that the State has a compelling interest in regulating obscenity and child pornography, and that Section 43.262(b) furthers that interest by preventing child sexual abuse and exploitation.

The trial court also concluded that Section 43.262(b) regulates obscenity even without a "patently offensive" element because visual material under Section 43.262(b) is necessarily patently offensive and that the "knowing" requirement sufficiently narrowed Section 43.262(b)’s application because it applies to the conduct and the circumstances of the offense.

Appellant asked for a ruling on the vagueness part of his argument, and the trial court denied the pretrial writ application on that basis also. The...