Corey Freeman had a bench trial and was convicted of online solicitation of a minor. Corey challenged the law as being unconstitutional for two reasons. One, was that he claimed the law was a strict liability offense in that there was no requirement that he actually believe he was talking to a 13 year old, and second that the statute infringed on his first amendment. The Dallas Court of Appeals disagreed, which is not surprising, almost every conviction and statute is upheld on appeal. This is Texas after all. On a side note, it’s the exact opposite situation for civil appeals, where judgments for plaintiffs are routinely thrown out to better serve our corporate overlords. But that’s a story for another day. Let’s take a closer look at Freeman vs. State.
Facts- Freeman was in a chat with a person identified by the screen name of “brook_chick13.” BrookChick13 stated in communications to Freeman that she was a thirteen-year-old girl. I’ll quote from the opinion here.
Their conversations, over the span of several months, gradually escalated in sexual explicitness. During the correspondence, appellant mentioned wanting to take the girl’s clothes off, kissing her, pulling off her pants and licking her, and “sliding into” her–all the while being reminded by her that she was only thirteen years old. In actuality, appellant was communicating with a male police officer.
The officer sent appellant a few photographs of the “fictitious Brook.” At trial, the
officer explained that he used photographs of a small, young-looking detention officer and that none of the photographs was sexually explicit. After taking appellant into custody and advising him of his Miranda rights, the officer questioned appellant about his online conversations with “Brook.” Appellant “couldn’t explain why he was chatting with a 13-year old.” Appellant told the officer that he does chat with minors “but when he discovers they’re a minor he stops the chat.”
Ok, so Freeman sounds pretty creepy, so let’s move on to the Constitutional Arguments. First, we need to understand the statute.
From the opinion-
The Texas Legislature has defined the elements of online solicitation of a minor, in
relevant part, as follows:
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, by
electronic mail or text message or other electronic message service or system, or
through a commercial online service, intentionally:
(1) Communicates in a sexually explicit manner with a minor….
TEX. PENAL CODE ANN. § 33.021(b) (West 2011). “Sexually explicit” is defined in the statute as “any communication, language, or material, including a photographic or video image,” that pertains to or describes “sexual conduct.” Id. § 33.021(a)(3); see also id. § 43.25(a)(2) (defining “sexual conduct”).
The definition of “minor” is the source of appellant’s constitutional challenge. “Minor”
is defined in the statute as,
(A) an individual who represents himself or herself to be younger than 17 years of
(B) an individual whom the actor believes to be younger than 17 years of age.
Strict liability offense?
Freeman’s first argument is that the statute imposes strict liability, and that he can be found guilty without any intent to actually talk to a minor. The court dismisses that argument by stating that, well sometimes it’s just easier to copy and paste from the opinion.
From the opinion-
Appellant claims the absence of requiring proof of an accused’s belief about the age of the recipient makes the statute a strict liability offense as to section 33.021(a)(1)(A). We will not assume with appellant that section 33.021(a)(1)(A) is properly characterized as a strict liability offense. See Lo, 393 S.W.3d at 294 (“Section 33.021(b) includes scienter requirement that applies to each element of the offense” including intent to transmit sexually explicit material to minor). But we will assume for the purposes of analyzing appellant’s constitutional challenges that the sub-element of the offense in section 33.021(a)(1)(A) requires the State to prove only that the recipient of sexually explicit communications represented to the sender that the recipient was younger than seventeen and that a mistake of fact about the age of the recipient is not a defense to section 33.021(a)(1)(A)
That’s a long way to say that, we aren’t going to call this a strict liability statute, even though it operates exactly like a strict liability statute. That is, there is no requirement that a defendant actually believe the other party is a minor. The court noted that Freeman never stated that he thought he was talking to an adult, and the court leaves open the argument that they could consider such an argument in the future.
This case involves speech, speech that most will find disgusting, but it’s still speech and therefore has a degree of First Amendment protection. First, some case law on the First Amendment and criminalizing speech.
A statute is impermissibly overbroad if it includes within its coverage speech or conduct protected by the First Amendment in addition to properly prohibiting activities that are not protected. Bynum v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989); see also Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). We hesitate to strike down a statute on its face because of the far-reaching effect, so we do so only “as a last resort.” New York v. Ferber, 458 U.S. 747, 769 (1982). We will not invalidate a statute for overbreadth merely because it is possible to imagine some unconstitutional application. In re Shaw, 204 S.W.3d 9, 15 (Tex. App.–Texarkana 2006, pet. ref’d) (citing Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)). The United States Supreme Court requires substantial overbreath before invalidating on its face a statute regulating conduct. Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). The Supreme Court has recognized that, particularly when conduct and not merely speech is involved, the overbreadth of a statute must “not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id.
Here’s some more.
To paraphrase the Supreme Court, one would hardly be surprised to learn that communicating sexually explicit material to a child younger than seventeen years old is not an innocent act. Cf. United States v. Freed, 401 U.S. 601, 607, 609 (1971) (“One would hardly be surprised to learn that possession of hand grenades is not an innocent act.”).
Speech attempting to orchestrate the sexual abuse of children is no more constitutionally
protected than speech attempting to arrange any other type of crime. United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004). Communication used as an integral part of conduct in violation of a criminal statute is only rarely protected by the constitutional freedom of speech. See United States v. Stevens, 130 S. Ct. 1577, 1586 (2010). Appellant, therefore, does not have a constitutionally protected right of speech to communicate sexually explicit material to a recipient who represents to appellant that the recipient is younger than seventeen years old or whom appellant believes is younger than seventeen years old.
So the Dallas Court of Appeals rejects the First Amendment argument, but there is still the possibility that a case with a defendant who believed that a person was not a minor, could fight this statut. That is, if you know you are talking to your 50 year old neighbor, and she says she’s a teenager and you say dirty things to her, you may have an argument.