Is it possible for Lege to resuscitate unconstitutional online solicitation statute?

The Fort Worth Star-Telegram recently reported ("A teacher, sexting, and the right to free speech," Feb. 25) on a case of a teacher sexting with a student in which prosecutors dropped charges, claiming the episode shows why the Legislature needs to reinstate Texas' recently-declared-unconstitutional online solicitation of a minor statute. The story opened:

He was 30 and she was 13 — a teacher and his student — but their relationship went far beyond the classroom, authorities say.

In six days in October 2012, they sent 688 text messages to each other, and the conversation became sexual, according to an arrest warrant affidavit.

The messages — known as “sexting” — included descriptions of sexual preferences and fantasies and discussions of dreams about each other, the affidavit says.

Sean Arlis Williams, now 31, who was a junior high school teacher in the Everman district, was eventually arrested on a charge of online solicitation of a minor, which was later changed to improper relationship between an educator and student.

But this month, based on a recent appeals court ruling dealing with a similar case in Harris County, Tarrant County prosecutors dismissed his case.

In consequence, reported the Startlegram, "Chad Ruback, an appellate attorney who worked at the Fort Worth [Court of] Appeals, said the court’s message is directed to state lawmakers, saying they need to rewrite the law so that it achieves its stated purpose of protecting minors against sexting." Rob Kepple, the executive director of the Texas District and County Attorneys Association who helped draft the statute, has also suggested the Lege should revive and revise the statute.

Here's the problem with the argument that legislators should rewrite the law: the unanimous ruling by the all-Republican court found 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).

The court's opinion elaborated in detail the statutes forbidding all manner of communications that could be prosecuted under other statutes. For example, the CCA noted that "section 42.07 of the Penal Code, the harassment law, already prohibits and punishes an electronic communication that 'makes a comment, request, suggestion, or proposal that is obscene.' Or, if the repeated emails or text messages are not obscene, but they are 'reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend' the child, the sender may be prosecuted under Section 42.07(a)(7)." And the court left intact the portion of the online solicitation statute that outlaws adults actually soliciting sex with a minor.

So if, as all nine members of the Texas Court of Criminal Appeals agreed, "everything" covered by the statute in question was "either already prohibited by other statutes ... or is constitutionally protected," I fail to see how the Lege can rewrite the law in a constitutional fashion. As the CCA noted, longstanding US Supreme Court precedents have held that "Sexual expression which is indecent but not obscene is protected by the First Amendment."

The school can and should terminate the teacher and the state IMO would be justified in taking away his teacher's license, but that doesn't mean a crime has been committed if he didn't solicit a meeting or distribute obscene materials.

Here's the text of the online solicitation statute (only subsection [b] was held unconstitutional) and here's the unanimous opinion (pdf) from the Court of Criminal Appeals, which closely tracks federal First Amendment rulings. Maybe some of you legal eagles out there can suggest how the unconstitutional statute might be modified to criminalize such behavior in a way that comports with the First Amendment. I'm not a lawyer, but personally, I can't see it.

See related Grits posts:

• Taking judicial notice of Miley Cyrus' twerking: Texas online solicitation of a minor statute ruled unconstitutional
• What happens to people already convicted under now unconstitutional online solicitation statute?
• First Amendment fouling prosecutors' efforts to criminalize online sexual content
• State prosecuting attorney to Greg Abbott: Butt out