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Ex Parte Lo

Court of Criminal Appeals of Texas

October 30, 2013


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[Copyrighted Material Omitted]

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FOR APPELLANT: Mark Bennett, Bennett & Bennett, Houston, TX.

FOR THE STATE: Jessica Akins, Assistant District Attorney, Houston, TX.


COCHRAN, J., delivered the opinion of the unanimous Court.

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Appellant was charged with the third degree felony of communicating in a sexually explicit manner with a person whom he believed to be a minor with an intent to arouse or gratify his sexual desire.[1] He

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filed a pretrial application for a writ of habeas corpus alleging that this specific subsection of the felony offense of online solicitation of a minor is facially unconstitutional[2] for three distinct reasons: (1) it is overbroad and criminalizes a wide range of speech protected by the First Amendment; (2) it is vague because the term " sexually explicit" communications that " relate to" sexual conduct chills the exercise of free-speech by causing citizens to steer wide of the uncertain boundaries between permitted and prohibited speech; and (3) it violates the Dormant Commerce Clause. The trial judge denied relief, and the court of appeals affirmed.[3] We granted discretionary review to determine, as a matter of first impression,[4] whether Section 33.021(b)--the " sexually explicit communications" provision--is facially unconstitutional.[5]

Because the court of appeals used the wrong standard of review for addressing constitutional challenges to a penal statute that restricts speech based on its content, it reached the wrong conclusion. Applying the constitutionally required presumption that " content-based regulations [of speech] are presumptively invalid" [6] and subject to strict scrutiny,[7] 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. We need not, therefore, address whether the provision is also unconstitutionally vague or violates the Dormant Commerce Clause.


A. The Standard of Review

Whether a statute is facially constitutional is a question of law that we review de novo .[8] When the constitutionality

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of a statute is attacked, we usually begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily.[9] The burden normally rests upon the person challenging the statute to establish its unconstitutionality.[10] However, when the government seeks to restrict and punish speech based on its content, the usual presumption of constitutionality is reversed.[11] Content-based regulations (those laws that distinguish favored from disfavored speech based on the ideas expressed)[12] are presumptively invalid, and the government bears the burden to rebut that presumption.[13] The Supreme Court applies the " most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content." [14]

To satisfy strict scrutiny, a law that regulates speech must be (1) necessary to serve a (2) compelling state interest and (3) narrowly drawn.[15] A law is narrowly drawn if it employs the least restrictive means to achieve its goal and if there is a close nexus between the government's compelling interest and the restriction.[16] If a less restrictive means of meeting

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the compelling interest could be at least as effective in achieving the legitimate purpose that the statute was enacted to serve, then the law in question does not satisfy strict scrutiny.[17] Furthermore, when the content of speech is the crime, scrutiny is strict because, " as a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." [18]

In this case, the court of appeals mistakenly applied the usual standard of review, including the presumption of the statute's validity,[19] instead of the presumption-of- invalidity standard of review for First Amendment, content-based statutes.

First, we examine what the statute prohibits and what is its expressed ...

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