The case is today’s Ex parte Lo (Tex. Ct. Crim. App. Oct. 30, 2013) — from Texas’ highest criminal court — and the provisions truck down is Tex. Penal Code § 33.021(b):
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 [defined as “any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct”] with a minor [defined as anyone who represents himself or herself as under 17, or whom the actor believes is under 17]; or
(2) distributes sexually explicit material to a minor.
(Other statutes, not challenged here, ban sexual solicitation of a minor, and the distribution of obscene-as-to-minors material to minors.) The court reasons:
Subsection (b) covers a whole cornucopia of “titillating talk” or “dirty talk.” But it also includes sexually explicit literature such as “Lolita,” “50 Shades of Grey,” “Lady Chatterly’s Lover,” and Shakespeare’s “Troilus and Cressida.” It includes sexually explicit television shows, movies, and performances such as “The Tudors,” “Rome,” “Eyes Wide Shut,” “Basic Instinct,” Janet Jackson’s “Wardrobe Malfunction” during the 2004 Super Bowl, and Miley Cyrus’s “twerking” during the 2013 MTV Video Music Awards. It includes sexually explicit art such as “The Rape of the Sabine Women,” “Venus De Milo,” “the Naked Maja,” or Japanese Shunga. Communications and materials that, in some manner, “relate to” sexual conduct comprise much of the art, literature, and entertainment of the world from the time of the Greek myths extolling Zeus’s sexual prowess, through the ribald plays of the Renaissance, to today’s Hollywood movies and cable TV shows….
Many states have enacted statutes aimed at preventing the dissemination of “harmful” materials to minors and solicitation of minors over the internet. Courts all across the United States have upheld these statutes. They share either of two characteristics: (1) the definition of the banned communication usually tracks the definition of obscenity as defined by the Supreme Court in Miller v. California [though with “for minors” added to each prong of the definition -EV]; or (2) the statutes include a specific intent to commit an illegal sexual act, i.e., the actor intends to “solicit” or “lure” a minor to commit a sexual act. All of the cases cited by the State in its brief deal with such solicitation or dissemination statutes. None of them deal with non-obscene, non-solicitative, non-child pornographic, non-harmful-to-minors sexually explicit communications to minors….
Looking at the present statute, the compelling interest of protecting children from sexual predators is well served by the solicitation-of-a-child prohibition in subsection (c). But subsection (b) does not serve that same compelling purpose. It may protect children from suspected sexual predators before they ever express any intent to commit illegal sexual acts, but it prohibits the dissemination of a vast array of constitutionally protected speech and materials.
The State argues that this provision is intended to target “grooming” by predators who develop a relationship with their intended victim by befriending the child online, developing their trust, and then eventually engaging in sexually explicit conversations. We are unable to find anything in the 2005 legislative history to support an intent to criminalize “grooming” by titillating speech. The intent expressed in the bill analyses, the committee hearings, and the floor debate was that the crime of solicitation of a minor on the internet is complete at the time of the internet solicitation, rather than at some later time if and when the actor actually meets the child. Furthermore, the Supreme Court [in Free Speech Coalition v. Ashcroft] has rejected the notion that allowing the dissemination of “virtual” child pornography would “whet the appetites of pedophiles,” and therefore could be banned. We must do the same here.
But even if the Legislature did have an intent to prohibit “grooming” in subsection (b), the culpable mental state prescribed in that provision — “intent to arouse or gratify the sexual desire of any person” — is not narrowly drawn to achieve that end. A more narrowly drawn culpable mental state would be “with intent to induce the child to engage in conduct with the actor or another individual that would constitute a violation of §§ 21.11, 22.011, or 22.021.” The State suggests that, without the current provision, perverts will be free to bombard our children with salacious emails and text messages, and parents and law enforcement would be unable to stop it. But as we have just observed, there are more narrow means of drawing a statute to target the phenomenon of “grooming.” …
[T]he State argues that appellant “has failed to demonstrate how intentional conversations, sexually explicit in nature, with minors constitute protected speech.” That is, of course, exactly backwards. Statutes that regulate the content of speech … are presumed to be invalid, and it is the State, not appellant, that must establish its validity. The State has not cited a single case from any jurisdiction that has held that sexually explicit speech that is not obscene or “harmful” to minors is outside the protection of the First Amendment as long as the actor has an intent to arouse or gratify sexual desire. And, as noted above, we are unable to find any such case or other state statute. The Supreme Court decisions in [Reno v. ACLU, Ashcroft v. ACLU II, and Free Speech Coalition] … appear to contradict the State’s position.
[T]he State claims that the “explicit sexual communications” law is not overbroad because it “is specifically tailored to battle the widespread use of the Internet and technology as a tool for adults who prey on children, with the specific intent to arouse or gratify a sexual desire.” It argues that this law is narrowly tailored by this scienter requirement. But the First Amendment protects thoughts just as it protects speech. As the Supreme Court warned,
The government “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.
A man’s thoughts are his own; he may sit in his armchair and think salacious thoughts, murderous thoughts, discriminatory thoughts, whatever thoughts he chooses, free from the “thought police.” It is only when the man gets out of his armchair and acts upon his thoughts that the law may intervene. To protect the right of citizens to think freely and to protect speech for its own sake, the Supreme Court’s cases “draw vital distinctions between … ideas and conduct.” Section 33.021(b) prohibits constitutionally protected speech when that speech is coupled with constitutionally protected thought.