First Amendment fouling Texas prosecutors' efforts to criminalize sexual content

Following up on the Court of Criminal Appeals' 9-0 decision to overturn part of Texas' law on online solicitation of a minor as facially unconstitutional, the executive director of the Texas District and County Attorney's Association, Rob Kepple, admitted on their user forum that he helped draft the language nullified unanimously by the high court:

OK, I fess up to being involved in the drafting of this statute. Seemed like a good idea at the time. The thought was that the "intent to gratify" element would take it into constitutional territory. I agree that a teacher sending a kid a book or discussing it could be protected speech, but if the teacher is sending certain passages of 50 Shades of Gray along with other inappropriate messages, seemed like grooming conduct which would support a constitutional prosecution.

If Mark Bennett has his way, Kepple will be issuing more such mea culpas in his future. Still glowing in the wake of his victory at the CCA overturning Sec. 33.021(b) of the Texas Penal Code, he offered up this post arguing that "Sections 33.021(c) and (d) com­bined explic­itly crim­i­nal­ize fan­tasy, for­bid­ding speech—fantasy speech—that is pro­tected by the First Amendment." "You read it here first," he wrote, "Sec­tion 33.021(c), com­bined with Sec­tion 33.021(d), is unconstitutional." Bennett concluded with this admonition for his fellow criminal defense lawyers:

I hate to sound unnec­es­sar­ily arro­gant, but there are very few lawyers in Texas whom I would trust to han­dle these chal­lenges. This is a very spe­cial­ized area of the law, at the inter­sec­tion of the First Amend­ment and crim­i­nal law. Most lawyers thought I was crazy to say that 33.021(b) was uncon­sti­tu­tional; they kept plead­ing those cases even after they knew about the pend­ing appeal in the Texas Court of Crim­i­nal Appeals.

If you’re a lawyer, please don’t try this at home. Call me and we’ll do it together.

Probably good advice. And speaking of advice on the intersection of criminal and First Amendment law, on the Texas prosecutors' user forum this week Brazos County prosecutor John Brick solicited some regarding another statute Bennett has argued is unconstitutional - Texas' improper photography statute. He wrote:

I need help with this scenario – i.e., is this an Improper Photography (21.15 TPC) case or not:

Girl 1 has child with guy. Guy starts dating Girl 2. Girl 1 finds a pic of Girl 2 topless on guy’s phone. Girl 1 posts the topless pic on Facebook & Instagram and calls victim bad names. The elements read that a person commits a crime if the person: photographs or by videotape or electronic means, records, broadcasts, or transmits a visual image of another at a location that is a bathroom (it is in this case) A) without the other person’s consent, and B) with intent to invade the privacy of the other person.

Suspect can also be charged if: knowing the character and content of the pic, they promote it.

Q1: do you think the defendant has to be the one who actually photographs or records, or do you think the statute reads that they can simply transmit a visual image?

Q2: do you think Girl 2 waived her privacy claim by sending it to someone in the first place?

Q3: what the heck does “knowing the character and content” mean? Do we have to prove the same elements as the underlying (lack of consent and intent to invade privacy)?

Kleberg County DA John Hubert replied:

OK, I'll attempt this one..

Q1. simply transmitting is enough.

Q2. No. Girl 2 sent this to Guy 1. If Guy 1 shared it, there might be an issue of whether G2 waived or not. However, if Girl 1 is getting the pics from the guy without his knowledge, I think there is a privacy issue. Also, you have to look at the intent...it is with intent to invade another's privacy...

Q3. OK, "knowing character and content" may be a little more squishy, but I think that a picture of a person in a bathroom with clothes on but doesn't see a person in the bathtub in the background who is showing some skin might be an example of NOT knowing character and content...... but that would be a question for the jury.

Anyone disagree?

Certainly Mark Bennett does. Indeed, a prosecutor from Groesbeck warned Brick that Bennett's First Amendment tonic may sour Hubert's optimistic argument: "Just keep in mind that the Fourth Court has ruled this statute facially unconstitutional. Coupled with the CCA ruling ... striking down a portion of the online solicitation statue on nearly identical reasoning, I would be cautious here." (See Grits' post from September on the Fourth Court of Appeals' opinion.) The improper photography statute now appears ripe for consideration by the Court of Criminal Appeals since the First Court of Appeals earlier upheld its constitutionality, meaning the law is being interpreted differently in different Texas jurisdictions.

Bottom line: Now that Bennett has busted this First Amendment nut open at the CCA, a number of similarly themed statutes criminalizing possession or transmission of sexual content could well fall like pecans in autumn. And our friends at the prosecutors' association may have more fessing up to do.