Online Solicitation of Minor Statute- 33.021(b)(1) Held Unconstitutional

Mark Bennett runs my favorite Texas defense lawyer blogs, Defending People. Mark has been arguing that part of the Texas law regarding Online Solicitation of a Minor is unconstitutional since 2008. Today, the Court of Criminal Appeals agreed and ruled 9-0 that part of the statue, 33.021(b)(1) is a violation of the First Amendment. Congrats to Mark. Let’s look at the opinion.

Online Solicitation of a Minor- What’s the law? 

The statute is a mess to read, so I’ll summarize. Basically, a person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet or by electronic mail or a commercial online service  communicates in a sexually explicit manner with a minor; or distributes sexually explicit material to a minor, or knowingly solicits a minor to meet with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse.

Ok, so which part did the Court of Criminal Appeals rule on?

One specific subsection regarding sending sexual expicit material to a minor. The indictment in this case read, in pertinent part, that 1 “on October 31st, 2009, the defendant did then and there unlawfully with the intent to arouse and gratify the sexual desire of the defendant, intentionally communicate in a sexually explicit manner with [the complainant], an individual whom the defendant believed to be younger than 17 years of age, by text message and that the defendant was at that time more than 17 years of age.”

What was their decision?

From the opinion-

Applying the constitutionally required presumption that “content-based regulations [of speech] are presumptively invalid” and subject to strict scrutiny, we conclude that Section 33.021(b) of the Texas Penal Code is overbroad because it prohibits a wide array of constitutionally protected speech and is not narrowly drawn to achieve only the legitimate objective of protecting children from sexual abuse.



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