Wednesday, February 04, 2015

Bennett: How Texas can constitutionally reboot online solicitation statute

One of the sleeper issues confronting the 84th Texas Legislature are proposed revamps of the state's online solicitation of a minor statute, deemed unconstitutional last year by the Court of Criminal Appeals. Legislation to reboot the statute has been filed by Rep. Tony Dale in the House and Sen. Joan Huffman in the Senate, reported Chuck Lindell at the Austin Statesman (Feb. 3). See the text of their proposal and a press release from Dale.

Grits forwarded the legislation to Mark Bennett - the Houston attorney whose aggressive appellate work invalidated the statute and arguably the state's leading, practicing expert on the intersection between First Amendment and criminal law - and he offered up this post on his blog Defending People analyzing the Dale/Huffman proposal from a constitutionality perspective.

Bottom line, says Bennett, the language is "not quite right, but is much closer to constitutional than the statute as it exists now." He suggested a few "small changes" which would bring "the statute ... almost in line with First Amendment incitement law."

Indeed, the barrister opined, "The only element of incitement that isn’t in the statute is imminence: for incitement to be unprotected speech the defendant must intend that a crime be imminent. There is, as you might imagine, not a lot of case law on imminence. If you stuck 'the imminent' in between 'commence' and 'commission' [in his edited text], you’d have a statute that I’d have difficulty attacking (which is not to say that I won’t come up with something)."

A few observations. First, this was a 9-0 ruling by the Court of Criminal Appeals so the replacement of three judges in November likely won't change it. That means the case law Bennett helped establish on this issue will govern whatever the Lege does this session. Second, let's be clear, Bennett understands First Amendment law and the prosecutors don't. Moreover, he's been licking his chops for a chance to challenge any replacement statute. So if Mark Bennett is offering drafting advice, it would behoove the bill authors to take it and run. That's especially true since the changes he's suggested are truly not major; they've already narrowed the bill most of the way.

RELATED: Is it possible for Lege to resuscitate online solicitation statute?


Anonymous said...

I feel the best part about the revised law is that it will stop the police stings entrapping lonely not very smart people. Since in the new version the victim must be a real minor or someone the state can prove without a doubt the defendant believed to be a minor.

And that would be almost impossible since it also allows the use of "only a fantasy" as a defense.

Gilbert G. Garcia said...

Good revision to a flawed law. Please let me know what I can do to help this law get rebooted. Most of the men caught in these traps are not predators. thanks for posting.

Unknown said...

I was charged and convicted of online solicitation of a minor in 2013. I feel that at least 2 of my rights were violated. 1. According to TSC my first amendment 2. My fith amendment, the second because the state convicted me twice on the same charge. Is there something I van do about this?

Anonymous said...

I was convicted of online solicitation of a minor in 2013. I feel, no, I know that at least two of my rights were violated in the process. One under the 1st Amendment another under the 5th Amendment. The second because I was actually convicted of the same crime twice. Can anything be done about this?