Monday, March 16, 2015

Can/will Lege write a constitution-friendly ban on online solicitation of a minor?

After the Texas Court of Criminal Appeals ruled the existing "online solicitation of a minor statute" unconstitutional in 2013, quite a few legislators would like to revive the statute. The first bill to be heard this session addressing the topic will be HB 861 by Tony Dale, which is on Wednesday's House Criminal Jurisprudence Committee agenda.

I mention it because Mark Bennett, who litigated the case overturning the statute as unconstitutional, authored a blog post in February offering his analysis of companion legislation to Dale's, praising its restraint in several areas and describing a handful of remaining, arguably unconstitutional provisions which he says would still subject it to First Amendment attack if the bill is not amended.

Bennett's is not an idle claim. The (not exactly liberal, namby-pamby) Texas Court of Criminal Appeals ruled unanimously that "everything that Section 33.021(b) prohibits and punishes is speech and is either already prohibited by other statutes (such as obscenity, distributing harmful material to minors, solicitation of a minor, or child pornography) or is constitutionally protected" (emphasis in original). So if everything that can be illegal has already been made illegal, it's hard to see room for this statute to afford additional protections to victims of sex crimes, good intentions notwithstanding.

Bennett showed up last week to testify before the same committee regarding proposed "revenge porn" statutes, making related First Amendment arguments. Some members of the panel - most prominently Rep. Jeff Leach - strongly disagreed with Bennett's analysis, but from Grits' perspective it was an odd conversation. Bennett was describing the state of the law as articulated in a 9-0 vote by the CCA, while his critics made normative claims about what the law should be. That's a recipe for having your new statute struck down just like Texas' online solicitation and improper photography laws.

In the case of online solicitation of a minor, Bennett has told legislators already exactly what it would take to write a constitutional statute. If they want any law they write to have an effect in the real world - as opposed to merely affording an opportunity for politicized grandstanding - it would behoove them to accept his advice.

4 comments:

Katy Anders said...

If solicitation of a minor is already illegal, what is gained by having a separate statute for online solicitation of a minor? I can understand the feds using the "online" element as a way to get involved (interstate commerce and all that jazz), but the state?

I suppose if we're that worried about it, they could simply enhance the sentence for regular solicitation of a minor if it's found the defendant used the internet to do it.

Gritsforbreakfast said...

Likely nothing is gained, but there was a round of media stories claiming the Constitution is a big problem on this so legislators feel the need to "do something." This is that something.

There's not a crime of solicitation of a minor per se, just several other crimes listed in the CCA quote that criminalize aspects of solicitation behavior. The issue is that you can't criminalize dirty talk (to minors or anybody else) in and of itself, but a lot of folks would like to.

dfisher said...

You would think in second largest state in a nation, where the largest law school in that state is in the capitol, that law school would employ a constitutional scholar, that the legislature could consult with before passing a law.

But in Texas the elected leadership believes private business is more efficient than government, so only the private law schools employ constitutional scholars and none of them are in the state capitol.

If Texas does not learn from this mistake, expect more laws both existing and coming to be declared unconstitutional.





rodsmith said...

as long as the so-called "minor" is a 50 year old cop. Not a chance in hell. This has already been all the way to the United States Supreme Court and lost.

Of course then it was arresting and charging people with possession of drugs given to them by police in stings...like above and it turned out the so-called drugs were sugar, flour or another legal substance. rule became no real drugs. NO CHARGE.

nothing is changed here.