Posted on | November 1, 2013 | 40 Comments
Talking dirty to minors, just like Miley Cyrus “twerking” on MTV or Janet Jackson having a “wardrobe malfunction” during prime time, is constitutionally protected free speech, the highest criminal court in Texas ruled Wednesday.
The Texas Court of Criminal Appeals struck down a section of a 2005 law that banned adults from sexually explicit online communication with children.
That means soliciting a person under the age of 17 for sex remains illegal, but talking dirty with a child is protected by the U.S. Constitution.
(In other words, perverts can send anything they want to minors, as long as they avoid a narrow definition of “solicitation.”)
Judge Cathy Cochran, who penned the ruling, said the law “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 opinion centered on a Harris County case in which a 53-year-old man was accused of sending sexually explicit text messages to a teenager with an intent to arouse or gratify his sexual desire.
(And we all know that protecting this stuff is exactly what the authors of the First Amendment had in mind, right?)
“It’s unclear whether the messages are serious or whether he was joking around,” said attorney Grant Scheiner, who represented the man. “Nevertheless, he got charged with a crime.”
Because the court tossed out the law, the charges against the man have been dismissed.
(Perverts who like talking dirty to teenagers are all moving to Texas now. Anthony Weiner could not be reached for comment.)
The court’s ruling said the 2005 law makes illegal a “whole cornucopia of titillating talk or dirty talk” but would also outlaw online discussions of other sexually explicit content including famous works like “Lolita” “50 Shades of Grey” “Lady Chatterly’s Lover” and Shakespeare’s “Troilus and Cressida.”
This absurd false equivalence — comparing a pervert’s text messages to works of literature — is indicative of how a devotion to intellectual abstraction has corrupted the legal community. The intent of the legislature was both clear and legitimate: To protect minors from the corrupting influence of perverse adults.
As with any other law, police, prosecutors and trial courts all have discretion in regard to enforcement of such a law. At each step of the way, from the moment potentially illegal communications are brought to the attention of law enforcement until a trial jury renders a verdict, officials and citizens are empowered to exercise their own common-sense judgment about whether the communications violate the law, and whether the person sending these messages acted with criminal intent. Sure, the defense attorney says his client was just “joking around” and, not having seen the messages at issue, let’s stipulate that the content was ambiguous. But doesn’t the fact that someone (the teen or the teen’s parents) complained to the cops indicate that whatever this 53-year-old creep said to this kid was something the average Texas citizen wouldn’t want someone saying to a kid?
This is not literature. This is not a novel, a play, a movie or a TV show. These are private messages between an adult and a teenager. Does the Texas court mean to prohibit the exercise of common sense?
Legal beagles among our readers can examine the court’s decision in Ex Parte John Christopher Lo and explain, in common-sense terms, why the court ruled unanimously to strike down the law.
The court seems to be making an argument that other laws, presumably constitutional, could be applied against genuinely harmful communications with minors, and that the specific law the court is striking down has some particularly erroneous provision.
Please discuss this in the comments.