Sen. Joan Huffman's SB 344 attempts to reinstate Texas' online solicitation of a minor statute, which the Court of Criminal Appeals unanimously struck down in 2013. But Huffman didn't adopt all the changes Bennett insists are necessary to prevent it from being attacked again on First Amendment grounds. Bennett has praised Huffman's bill for being "much closer to constitutional than the statute as it exists now." But he also laid out in the same post exactly how he'll challenge the statute as proposed and what changes would be necessary to make it constitutional, so if the House doesn't revise it they'll have nobody but themselves to blame. The companion bill, HB 861 by Tony Dale, has cleared committee and is waiting for the Calendars Committee to set it for a floor vote, at which time Huffman's bill will be substituted in and finally passed.
Meanwhile, Sen. Sylvia Garcia's "revenge porn" bill, SB 1135, also cleared the Senate this week, though its companions are not so far along. The Dallas Morning News coverage referenced none of the constitutional concerns, but the bill in its present form almost certainly won't pass First Amendment muster. Analyzing the bill earlier this week, Bennett explained that:
Since the speech restricted does not fall into a recognized category of unprotected speech, under current Supreme Court (and Court of Criminal Appeals) jurisprudence this statute does not pass First Amendment muster. Proponents of this law would have to convince the Supreme Court to recognize a new category of historically unprotected speech that covers most of the speech forbidden by the statute. That’s long odds.The bills to reinstate the improper photography statute, by contrast, don't appear to be moving.
Observing the Lege pass laws one can already tell are unconstitutional is like watching a slow moving train wreck. You can see a crash is coming well in advance but it seemingly can't be stopped. They pass these laws now then a couple of years later the courts declare them unconstitutional and the state has to figure out what to do with everybody who was convicted under invalid statutes. (Rep. Alonzo's bill on appointment of habeas counsel aims to address that topic.) We've already seen this movie and Denzel Washington doesn't show up at the end to save the train from derailment. It just flies off the tracks.
Sort of like Texas passing a ton of anti-abortion laws which always get struck down: maybe one will sneak through and entrench itself.
ReplyDeletePerhaps there should be some kind of entrance exam for public office?
ReplyDeleteMaybe with the newly comprised Court of Criminal Appeals, these bills will have a better chance of passing constitutional muster. In either case, it's troubling to me that any valid argument might be advanced that it SHOULDN'T be against the law for an adult to engage in sexually explicit conversations with a child, or publically post intimate images of a former lover without there consent. There are plenty of lawful limits to freedom of expression and these two should certainly fall within those limits. Just my opinion.
ReplyDelete2:21, fwiw, the CCA votes were 9-0 and the 1A jurisprudence they relied on comes straight from SCOTUS. Three new judges won't change it.
ReplyDeleteFirst of all, one would think that with the number of the Texas lawmakers who are attorneys, they would want to make sure that bills they enact will pass legal muster. Since that doesn't appear to be the direction they are taking, maybe they are looking towards the business they will generate for themselves by passing such garbage legislation, knowing they will have many clients to defend until the laws are tossed by the CCA.
ReplyDeleteJust because they are lawyers doesn't mean they are the sharpest tools in the shed when it comes to lawful legislation.