Ex Parte Oscar Calvin Fisher

ACCEPTED
07-15-00098-CR
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
6/15/2015 6:09:46 PM
Vivian Long, Clerk
FILED IN
7th COURT OF APPEALS
AMARILLO, TEXAS
6/15/2015 6:09:46 PM
In the Court of Appeals for the VIVIAN LONG
Seventh District Court of Appeals CLERK
No. 07-15-000098-CR
On Appeal from
The 106th District Court
Ex Parte
Garza County, Texas
Oscar Calvin Fisher
Trial Court
Cause No. 14-2685
Amended Brief for Appellant
Oral argument requested.
Mark W. Bennett
TBN 00792970
Bennett & Bennett
917 Franklin Street
Fourth Floor
Houston, Texas 77002
Tel. 713.224.1747
Email MB@IVI3.com
Julie Goen Panger
The Kiechler Law Firm PLLC
619 Broadway
Lubbock, Texas 79401
Counsel for Appellant
June 15, 2015
Statement Regarding Oral Argument
In Maloney v. State, the leading case on the main subject of this brief,
the First Court of Appeals erred by applying the wrong standard of re-
view. Then in Ex Parte Lo, another First Amendment case, that court
made the same error, and was reversed for it. Appellant requests oral
argument pursuant to Texas Rule of Appellate Procedure 39.7 in hopes
of saving this Court from the same error.
ii
Names of All Parties
Mr. Oscar Calvin Fisher Appellant
Ms. Julie Goen Panger Trial Counsel for Appellant
TBN 24069793
The Kiechler Law Firm, PLLC
619 Broadway
Lubbock, Texas 79401
Mark W. Bennett Appellate Counsel for Appellant
TBN 00792970
Bennett & Bennett
917 Franklin Street
Fourth Floor
Houston, Texas 77002
Mr. Jason Bujnosek Trial Counsel for Appellee
TBN 24036285
Assistant District Attorney
District Attorney’s Office
P.O. Box 1124
Lamesa, Texas 79331
Hon. Carter T. Schildknecht Judge, 106th District Court, Gar-
za County, Texas
iii
Table of Contents
Statement Regarding Oral Argument ................................................. ii
Names of All Parties ....................................................................... iii
Table of Contents ........................................................................... iv
Table of Authorities ........................................................................ vi
Statement of the Case ...................................................................... 1
Procedural History ........................................................................... 1
Issue Presented ................................................................................2
Statement of Facts ...........................................................................2
Summary of the Argument ................................................................2
Argument ....................................................................................... 3
Point of Error One: The trial court erred in denying Mr. Fisher
relief because Section 33.021(b) of the Texas Penal Code is
unconstitutionally overbroad in violation of the First
Amendment. ............................................................................... 3
Point of Error Two: The trial court erred in denying Mr. Fisher
relief because what remains of Section 33.021 is also
unconstitutionally overbroad in violation of the First
Amendment. .............................................................................. 4
What remains of Section 33.021 is presumptively
unconstitutional. ......................................................................5
The usual presumptions are reversed........................................... 7
iv
The burden is on the State to rebut the presumption that Section
33.021 is unconstitutional. ........................................................9
What about Maloney v. State? ................................................. 10
“Conduct vs. speech” is a false dichotomy................................. 11
The State cannot rebut the presumption that what remains of
Section 33.021 is unconstitutional............................................ 14
There have been two standards of review. .................................. 17
The correct approach to overbreadth is categorical. .................... 17
There are nine categories of unprotected speech. ....................... 18
Section 33.021 forbids protected speech. ................................. 18
The unconstitutionally forbidden speech is substantial. ............... 23
What about Ex Parte Victorick? ................................................26
Section 33.021 would also fail strict scrutiny. ............................ 27
Point of Error Three: The trial court erred in denying Mr. Fisher
relief because what remains of Section 33.021 is
unconstitutionally vague in violation of the Fourteenth
Amendment. .............................................................................28
Point of Error Four: The trial court erred in denying Mr. Fisher
relief because what remains of Section 33.021 violates the
Dormant Commerce Clause. ...................................................... 30
Prayer for Relief ............................................................................. 32
Certificate of Service ...................................................................... 33
Word Count .................................................................................. 33
v
Table of Authorities
CASES
American Libraries Association v. Pataki, 969 F. Supp. 160
(S.D.N.Y. 1997) .........................................................................34
Arganbright v. State, 328 P.3d 1212 (Okla. Crim. App. 2014) ........... 14
Ashcroft v. ACLU, 542 U.S. 656 (2004) ..................................... 9, 10
Brandenburg v. Ohio, 395 U.S. 444 (1969) ......................... 17, 22, 24
Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973) ............................25
Connally v. General Construction Co., 269 U.S. 385 (1926) ............. 31
Duncantell v. State, 230 S.W.3d 835 (Tex. App.—Houston
[14th Dist.] 2009, pet. ref’d) ........................................................8
Ely v. State, 582 S.W.2d 416 (Tex. Crim. App. 1979) ..........................9
Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013), .................. passim
Ex Parte Thompson, 442 S.W.3d 347 (Tex. Crim. App. 2014) ... 6, 16, 19
Ex Parte Victorick, 2014 WL 2142129, No. 09-13-005510-CR
(Tex. App. — Beaumont May 21, 2014, pet. ref’d.) ................ 28, 29
Greater New Orleans Broadcasting Assn., Inc. v. United States,
527 U.S. 173 (1999) .................................................................. 16
Karwoski v. State, 867 So. 2d 486 (Fla. Dist. Ct. App. 2004) ............ 14
LaRose v. State, 820 N.E.2d 727 (Ind. Ct. App. 2005) ..................... 14
Maloney v. State, 294 S.W.3d 613 (Tex. App. — Houston [1st
Dist. 2009, pet. ref’d.) ......................................................... passim
State v. Rung, 774 N.W.2d 621 (Neb. 2009) ................................... 15
United States v. Alvarez, 132 S. Ct. 2357, 567 U.S. ___ (2012) ... 19, 20
vi
United States v. Hornaday, 392 F.3d 1306 (11th Cir. 2004) ........ 14, 29
United States v. Stevens, 559 U.S. 460 (2010) ................. 9, 12, 19, 20
United States v. Williams, 553 U.S. 285 (2008) .................... 11, 22, 29
STATUTES
Tex. Penal Code § 33.021 ........................................................ passim
vii
In the Court of Appeals for the
Seventh District Court of Appeals
No. 07-15-000098-CR
On Appeal from
The 106th District Court
Ex Parte
Garza County, Texas
Oscar Calvin Fisher
Trial Court
Cause No. 14-2685
Brief for Appellant
To the Honorable Court of Appeals:
Statement of the Case
Oscar Calvin Fisher appeals the trial court’s denial of his Application
for Writ of Habeas Corpus (Clerk’s Record (CR 89)).
❧
Procedural History
On January 28, 2014, Mr. Fisher was indicted for two counts of Online
Solicitation of a Minor. The first count was pled under Section
33.021(c) of the Texas Penal Code. (CR 4.) The second count was pled
under Section 33.021(b) of the Texas Penal Code. (CR 4–5.)
On August 25, 2014, Mr. Fisher filed his Application for Writ of
Habeas Corpus and Exception to Substance of Indictment making as-
written challenges to Section 33.021 of the Texas Penal Code. (CR 23.)
On December 16, 2014, the Court denied Mr. Fisher’s Applica-
tion for Writ of Habeas Corpus and Exception to Substance of Indictment
on the merits. (CR 89.)
Mr. Fisher filed a timely notice of appeal. (CR 92.)
❧
Issue Presented
The trial court erred in denying relief because Section 33.021 of the
Texas Penal Code is unconstitutional.
❧
Statement of Facts
This is an as-written challenge to a statute. The facts of the underlying
case are not relevant to such a challenge.
❧
Summary of the Argument
In Ex Parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013), the Texas Court
of Criminal Appeals held unconstitutional Section 33.021(b) of the
Texas Penal Code.
What remains of Section 33.021 of the Texas Penal Code after Lo
forbids a substantial amount of speech that is protected under the First
2
Amendment: speech that is either not soliciting, or is directed at an
adult whom the speaker does not believe to be a child.
Section 33.021 is entitled, “Online Solicitation of a Minor,” and
online solicitation of a child is not constitutionally protected speech.
But how many legs does a dog have, if the Texas Legislature calls a tail
“a leg”? Four: calling a tail a leg doesn’t make it so. A “minor” under
Section 33.021 may be an adult, and “solicitation” under Section
33.021 may be fantasy speech. Section 33.021 is unconstitutionally
overbroad in violation of the First Amendment (Points of Error One
and Two), it is unconstitutionally vague in violation of the Fourteenth
Amendment (Point of Error Three), and it violates the Dormant
Commerce Clause (Point of Error Four).
❧
Argument
Point of Error One: The trial court erred in denying Mr. Fisher relief because
Section 33.021(b) of the Texas Penal Code is unconstitutionally overbroad in
violation of the First Amendment.
In Count Two of the indictment (CR 4–5) Mr. Fisher is charged under
Section 33.021(b) of the Texas Penal Code, which the Texas Court of
Criminal Appeals held unconstitutional in Ex Parte Lo, 424 S.W.3d 10
3
(Tex. Crim. App. 2013). Because Section 33.021(b) is void, the trial
court erred in denying Mr. Fisher relief as to Count Two.
❧
Point of Error Two: The trial court erred in denying Mr. Fisher relief because what
remains of Section 33.021 is also unconstitutionally overbroad in violation of the
First Amendment.
In Count One of the indictment (CR 4), Mr. Fisher is charged under
what remains of Section 33.021 of the Texas Penal Code.
While the State may constitutionally forbid speech that is intend-
ed to lead to sex with children, in Section 33.021 it also forbids speech
that it may not constitutionally forbid: speech that is intended to lead
to sex with adults (subsection (a)(1)(A)); and speech that is not in-
tended to result in sex with either children or adults (subsections
(d)(2), (3)):
ONLINE SOLICITATION OF A MINOR. (a) In this section:
(1) "Minor" means:
(A) an individual who represents himself or herself to be younger than 17
years of age; or
(B) an individual whom the actor believes to be younger than 17 years of
age.
(2) "Sexual contact," "sexual intercourse," and "deviate sexual inter-
course" have the meanings assigned by Section 21.01.
4
***
(c) A person commits an offense if the person, over the Internet, by elec-
tronic mail or text message or other electronic message service or sys-
tem, or through a commercial online service, knowingly solicits a minor
to meet another person, including the actor, with the intent that the mi-
nor will engage in sexual contact, sexual intercourse, or deviate sexual in-
tercourse with the actor or another person.
(d) It is not a defense to prosecution under Subsection (c) that:
(1) the meeting did not occur;
(2) the actor did not intend for the meeting to occur; or
(3) the actor was engaged in a fantasy at the time of commission of the
offense.
….
Tex. Penal Code § 33.021.
❧
What remains of Section 33.021 is presumptively unconstitutional.
“Congress shall make no law … abridging the freedom of speech….”
U.S. Const. Amend. I.
“Content-based regulations of speech are presumptively inva-
lid.” Ex Parte Lo at 14 fn 6 (citing R.A.V. v. City of St. Paul, 505 U.S.
377, 382 (1992)).
5
“If it is necessary to look at the content of the speech in question
to decide if the speaker violated the law, then the regulation is content-
based.” Ex Parte Lo, 424 S.W.3d at 15 fn. 12.
An otherwise content-neutral restriction may be rendered con-
tent-based if it discriminates because of the intent of the speech. See
Ex Parte Thompson, 442 S.W.3d 325, 347 (Tex. Crim. App. 2014) (hold-
ing that a portion of Section 21.15 of the Texas Penal Code was con-
tent-based because it discriminated on the basis of the underlying sex-
ual thought).
To determine whether speech violates Section 33.021(c), a fact-
finder must discern both the content of the speech (whether it solicits
a minor to meet) and the speaker’s intent (whether the speaker intends
for a minor to engage in sexual conduct).
Because the factfinder must consider both the content of the
speech and the speaker’s intent in determining whether speech vio-
lates Section 33.021(c), Section 33.021(c) is a content-based restriction
on speech.
Because Section 33.021 is a content-based restriction on speech it
is presumptively invalid.
❧
6
The usual presumptions are reversed.
In Maloney v. State the First Court of Appeals listed several “princi-
ples governing constitutionality review:”
When reviewing the constitutionality of a statute, we presume that the
statute is valid and that the legislature has not acted unreasonably or ar-
bitrarily. If a statute can be construed in two different ways, one of which
sustains its validity, we apply the interpretation that sustains its validity.
The party challenging the statute carries the burden to establish its un-
constitutionality. We must uphold the statute if we can determine a rea-
sonable construction that will render it constitutional.
Maloney v. State, 294 S.W.3d 613, 626 (Tex. App. — Houston [1st
Dist. 2009, pet. ref’d.) (cites omitted).
The presumption of Section 33.021’s invalidity, which follows
from the recognition that the statute is a content-based restriction on
speech, has interesting and important consequences, which are the
converse of Maloney’s “principles”:
• It creates a presumption that the legislature has acted un-
reasonably or arbitrarily in passing Section 33.021 (because
if the legislature passed an unconstitutional statute, it acted
unreasonably or arbitrarily);
• If Section 33.021 can be construed in two different ways,
one of which renders it invalid, the court must apply the in-
terpretation that renders it invalid. In Duncantell v. State
the Fourteenth court wrote, “We begin our review of the
constitutionality of a statute with the presumption that the
statute is valid and assume the legislature did not act arbi-
7
trarily and unreasonably in enacting the statute. Therefore,
if a statute can be construed in two different ways, one of
which sustains its validity, we apply the interpretation that
sustains its validity.” Duncantell v. State, 230 S.W.3d 835,
843 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d)
(emphasis added, cites omitted). Just as the presumption
of validity leads to the principle that the statute must be in-
terpreted to sustain its validity if possible, so does the pre-
sumption of invalidity leads to the principle that the statute
must be interpreted to sustain its invalidity if possible;
• The State carries the burden to establish Section 33.021’s
constitutionality. Ex parte Lo, 424 S.W.3d at 15; Ashcroft v.
ACLU, 542 U.S. 656, 660 (2004).; and
• The court must reject Section 33.021 if it can determine a
reasonable construction that will render it unconstitution-
al. In Ely v. State the Court of Criminal Appeals held that
“this [non-content-based] statute is vested with a pre-
sumption of validity and this Court is duty bound to con-
strue such statutes in such a way as to uphold their consti-
tutionality.” Ely v. State, 582 S.W.2d 416, 419 (Tex. Crim.
App. 1979). Just as courts are bound to construe presump-
tively valid statutes in such a way as to uphold their consti-
tutionality, they are bound to construe presumptively inva-
lid statutes in such a way as to overturn them.
This makes sense: we presume that a statute that might be un-
constitutionally applied will be because we do not trust the State not to
apply such a statute unconstitutionally. To trust criminal prosecutors
8
to resist applying a statute unconstitutionally would be to abdicate
courts’ responsibility to defend the First Amendment. See U.S. v. Ste-
vens, 559 U.S. 460, 480 (2010) (“[T]he First Amendment protects
against the Government; it does not leave us at the mercy of noblesse
oblige. We would not uphold an unconstitutional statute merely be-
cause the Government promised to use it responsibly.”).
❧
The burden is on the State to rebut the presumption that Section 33.021 is
unconstitutional.
The statute is presumed to be unconstitutional. The government bears
the burden to rebut that presumption. Ex parte Lo at 15; Ashcroft v.
ACLU, 542 U.S. 656, 660 (2004).
Indeed, were we to give the Government the benefit of the doubt when it
attempted to restrict speech, we would risk leaving regulations in place
that sought to shape our unique personalities or to silence dissenting ide-
as. When First Amendment compliance is the point to be proved, the risk
of nonpersuasion—operative in all trials—must rest with the Govern-
ment, not with the citizen.
United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 818, 120 S.
Ct. 1878, 1889, 146 L. Ed. 2d 865 (2000).
❧
9
What about Maloney v. State?
In Maloney v. State, 294 S.W.3d 613 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d) the First Court of Appeals upheld the constitutionali-
ty of Section 33.021(c) in the face of vagueness and overbreadth chal-
lenges. It analyzed the statute as one regulating conduct rather than
speech.
In Ex Parte Lo, similarly, the Court of Criminal Appeals in dicta
discussed Section 33.021(c) as a conduct- rather than a
speech-restricting statute. See Lo, 424 S.W.3d at 17.
That analysis, and that discussion, is wrong. Even incitement to
commit a crime is speech—it may be unprotected speech, but it is
speech nonetheless. See, e.g., United States v. Williams, 553 U.S. 285,
298 (2008) (“Many long established criminal proscriptions—such as
laws against conspiracy, incitement, and solicitation—criminalize
speech (commercial or not) that is intended to induce or commence
illegal activities”) (emphasis added).
In Maloney the First Court did not have the benefit of the record
in this case, which includes evidence of the prevalence of sexual make-
believe among adults representing themselves, known as “ageplay.”
(CR 32–46.) See Maloney, 294 S.W.3d at 628 (“we have been given no
10
basis to believe that prosecutions of consenting adults engaging in role-
playing would amount to any more than a “tiny fraction” of all prose-
cutions under the statute”). Nor did the First Court in Maloney have
the benefit of Lo v. State, or of the United States Supreme Court’s
most recent cases addressing First Amendment challenges to penal
statutes: Stevens, 559 U.S. 460, and Alvarez, 132 S. Ct. 2357 .
Undersigned counsel Bennett represented Mr. Lo in Ex Parte Lo,
424 S.W.3d 10. In that case neither the effect of Section 33.021(d),
eliminating the intent-to-meet element of solicitation from Section
33.021(c), nor the effect of Section 33.021(a)(1), criminalizing speech
among consenting adults, was briefed or discussed in argument. None
of the cases on which the Texas Court of Criminal Appeals’ analysis of
Section 33.021(c) relied upheld statutes such as Section 33.021 in
which the intent to meet is expressly disavowed. Lo’s discussion of
Section 33.021(c) was dicta. See id. at 14–15.
❧
“Conduct vs. speech” is a false dichotomy.
Neither the United States Supreme Court nor the Texas Court of
Criminal Appeals distinguishes between expressive conduct and other
speech in the First Amendment context.
11
In Lo the Court of Criminal Appeals made an off-hand remark in
dicta about Section 33.021(c) forbidding conduct: “it is the conduct of
requesting a minor to engage in illegal sexual acts that is the gravamen
of the offense.” Ex parte Lo, 424 S.W.3d 10, 17 (Tex. Crim. App. 2013),
reh’g denied (Mar. 19, 2014).1 But the court also wrote:
According to the First Amendment overbreadth doctrine, a statute is fa-
cially invalid if it prohibits a “substantial” amount of protected speech
“judged in relation to the statute’s plainly legitimate sweep.” The State
may not justify restrictions on constitutionally protected speech on the
basis that such restrictions are necessary to effectively suppress constitu-
tionally unprotected speech, such as obscenity, child pornography, or the
solicitation of minors.
Ex parte Lo at 18. So the Court of Criminal Appeals gives “the solicita-
tion of minors” as an example not of “conduct” but of unprotected
“speech.”2
Even aside from Lo, there are many cases describing solicitation
as speech. See, e.g., United States v. Hornaday, 392 F.3d 1306, 1311
(11th Cir. 2004) (“Speech attempting to arrange the sexual abuse of
children is no more constitutionally protected than speech attempting
to arrange any other type of crime”) (emphasis added); Karwoski v.
1
This rationale does not apply to the fantasy speech expressly criminalized by
Section 33.021(c) and (d), nor to the age-play criminalized by Section 33.021(c)
and (a)(1)(A).
2
This internal contradiction in Lo illustrates why dicta are not binding.
12
State, 867 So. 2d 486, 488 (Fla. Dist. Ct. App. 2004) (“In this case, it
is … speech that amounts to seduction, solicitation and enticement of
a child to commit a crime that is prohibited) (emphasis added); LaRose
v. State, 820 N.E.2d 727, 730 (Ind. Ct. App. 2005) (“Indiana Code
section 35–42–4–6 criminalizes speech sexually soliciting an individual
under the belief that the individual solicited is a minor, which is a con-
tent-based regulation subject to strict scrutiny”) (emphasis added);
Arganbright v. State, 328 P.3d 1212, 1217 (Okla. Crim. App. 2014)
(“This statutory provision causes it to be unlawful for any person to
communicate with a minor through the use of electronic technology
for the purposes of facilitating, encouraging, offering, or soliciting sex-
ual conduct or communicating sexual or prurient interest with any mi-
nor, or other individual the person believes to be a minor. Therefore,
we find that the statute regulates speech based upon its content or
subject matter”) (emphasis added); State v. Rung, 774 N.W.2d 621,
630 (Neb. 2009) (“Various state courts considering statutes similar to
§ 28–320.02 have also rejected First Amendment challenges on the
basis that speech to entice a minor to engage in illegal sexual activity is
not speech protected by the First Amendment”) (emphasis added).
There are certainly many more such cases.
13
There is a distinction in First Amendment law between “con-
tent-based” and “content-neutral” restrictions on speech. Because
the content of the speech must be considered in determining whether a
communication violates Section 33.021, the State cannot argue that
Section 33.021 is content-neutral. See Ex Parte Lo at 15 fn. 12 (“If it is
necessary to look at the content of the speech in question to decide if
the speaker violated the law, then the regulation is content-based.”).
❧
The State cannot rebut the presumption that what remains of Section 33.021 is
unconstitutional.
“It is rare that a regulation restricting speech because of its content
will ever be permissible.” Ex parte Thompson, 442 S.W.3d 325, 348
(Tex. Crim. App. 2014) (citing Brown v. Entertainment Merchants
Ass'n., ___ U.S. ___, 131 S. Ct. 2729, 2738 (2011)).
To rebut the presumption of unconstitutionality that arises when
a statute is a content-based restriction on speech, the State would have
to show that the statute did not forbid a real and substantial amount of
protected speech, compared to the legitimate sweep of the statute. See
Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U.S.
14
173, 183 (1999) (“[T]he Government bears the burden of identifying a
substantial interest and justifying the challenged restriction”).
“The legitimate sweep” of a content-based restriction on speech
is the forbidden speech that is not protected by the First Amendment.
The legitimate sweep of Section 33.021 is speech that is intended to
result in the imminent commission of sex crimes against children: in-
citement under Brandenburg v. Ohio, 395 U.S. 444, 447–48 (1969)
(“the constitutional guarantees of free speech and free press do not
permit a State to forbid or proscribe advocacy … of law violation ex-
cept where such advocacy is directed to inciting or producing immi-
nent lawless action and is likely to incite or produce such action”).
In addition to its legitimate sweep, however, Section 33.021 has a
broad illegitimate sweep: speech that is not intended to result in sex
crimes against children.
In subsection (a) the statute defines “minor” to include not only
a person whom the actor believes to be a child, but also a person whom
the actor does not believe to be a child, but who has represented him-
self to be a child. A person who is pretending to be a child is “repre-
senting himself” to be a child, whether the actor believes that repre-
sentation or not; the statute, with its separate definitions for “repre-
15
sentation” and “belief,” makes that clear. Speech by one adult to an-
other whom he knows to be an adult is not “directed to inciting or
producing imminent lawless action” and so is protected.
In subsection (d)(3) the statute forbids a fantasy defense. Fantasy
speech is not “directed to inciting or producing imminent lawless ac-
tion.”3
Fantasy speech soliciting sex with someone whom the actor does
not believe to be a child, but who is pretending (“representing him-
self”) to be a child is called “age play”; as Mr. Fisher showed in the
trial court (CR 32–46, Exhibit A to Application for Writ of Habeas Cor-
pus and Exception to Substance of the Indictment), this speech is real and
substantial. The State—which has the burden—has provided no evi-
dence to the contrary.
In subsection (d)(2) the statute bars a lack-of-intent defense.
Speech, even to a child, that lacks an intent to meet, is not “directed to
inciting or producing imminent lawless action,” and so is not unpro-
tected.
❧
3
“Sexual expression which is indecent but not obscene is protected by the First
Amendment.” Ex parte Lo, 424 S.W.3d at 20.
16
There have been two standards of review.
Because the United States Supreme Court applies a categorical ap-
proach to a content-based penal statute, that approach is (by defini-
tion) correct. See United States v. Stevens, 559 U.S. 460 (2010), and
United States v. Alvarez, 132 S. Ct. 2537, 567 U.S. ___ (2012) (both
holding penal statutes unconstitutional, neither applying strict scruti-
ny). Because the Court of Criminal Appeals applies the strict-scrutiny
standard of review, this brief will discuss that standard as well. See Ex
Parte Thompson; Ex Parte Lo. Section 33.021 fails under either.
❧
The correct approach to overbreadth is categorical.
The Supreme Court’s modern approach to First-Amendment law is a
categorical inquiry: if the statute is a content-based restriction on
speech, and if the restricted speech does not fall into one of a few nar-
rowly-defined categories of historically unprotected speech, the statute
is void. See Stevens, 559 U.S. 460; Alvarez, 132 S. Ct. 2537.
The speech restricted by the remnants of Section 33.021 falls into
no category of historically unprotected speech.
❧
17
There are nine categories of unprotected speech.
Content-based restrictions on speech have been permitted, as a gen-
eral matter, only when confined to the few “historic and traditional
categories [of expression] long familiar to the bar,” Stevens, 559 U.S. at
468. To rebut the presumption that Section 33.021 is invalid, the State
must show that the restricted speech falls into one of a few narrowly
defined categories of historically unprotected speech.
Among these categories are advocacy intended, and likely, to incite im-
minent lawless action; obscenity; defamation; speech integral to criminal
conduct; so-called "fighting words”; child pornography; fraud; true
threats; and speech presenting some grave and imminent threat the gov-
ernment has the power to prevent, although a restriction under the last
category is most difficult to sustain. These categories have a historical
foundation in the Court's free speech tradition. The vast realm of free
speech and thought always protected in our tradition can still thrive, and
even be furthered, by adherence to those categories and rules.
Alvarez, 132 S. Ct. at 2544 (citations omitted).
❧
Section 33.021 forbids protected speech.
All speech that does not fall into one of those nine categories is pro-
tected by the First Amendment.
18
The only one of these categories into which the speech restricted
by Section 33.021 even arguably falls is the first: speech intended and
likely to incite imminent lawless action—in a word, “incitement.”4
When it is read in isolation Section 33.021(c) appears to forbid
only incitement—a communication with the intent that a real-world
(that is, non-speech) crime be committed:
(c) A person commits an offense if the person, over the Internet, by elec-
tronic mail or text message or other electronic message service or sys-
tem, or through a commercial online service, knowingly solicits a minor
to meet another person, including the actor, with the intent that the mi-
nor will engage in sexual contact, sexual intercourse, or deviate sexual in-
tercourse with the actor or another person.
Tex. Penal Code §33.021(c).
“Many long established criminal proscriptions—such as laws
against conspiracy, incitement, and solicitation—criminalize speech
(commercial or not) that is intended to induce or commence illegal ac-
tivities.” Williams, 553 U.S. at 298.5
4
Some speech forbidden by Section 33.021 might incidentally be obscene, or inte-
gral to criminal conduct, or present some grave and imminent threat the govern-
ment has the power to prevent. But as defined by Section 33.021, the speech for-
bidden is none of these things.
5
Following Williams’s language, we might consider “solicitation” a tenth catego-
ry of unprotected speech, separate from “incitement.” That category would still
require the intent that a crime be committed, so the analysis would remain the
same. Age-play is not an offer to commit a crime.
19
Various anti-child-solicitation statutes have been upheld. And so-
liciting a child to meet for sex may be “directed to inciting or produc-
ing imminent lawless action and is likely to incite or produce such ac-
tion,” and so be unprotected under the Brandenburg test for unpro-
tected incitement. See Brandenburg v. Ohio, 395 U.S. 444, 447–48
(1969) (“the constitutional guarantees of free speech and free press do
not permit a State to forbid or proscribe advocacy … of law violation
except where such advocacy is directed to inciting or producing immi-
nent lawless action and is likely to incite or produce such action”).
But the balance of Section 33.021 takes the forbidden speech out
of the category of incitement for two reasons. First, a “minor” under
Section 33.021 is not necessarily a child, but may be an adult whom the
defendant knows to be an adult:
"Minor" means:
(A) an individual who represents himself or herself to be younger than
17 years of age; or
(B) an individual whom the actor believes to be younger than 17 years of
age.
Tex. Penal Code §33.021(a)(1). A “minor” who falls under subsection
(a)(1)(A) but not under subsection (a)(1)(B) is someone who repre-
sents himself to be younger than seventeen, but whom the defendant
20
does not believe to be younger than seventeen. He may be older than
seventeen. Subsection (a)(1)(A) targets communications with such
complainants, but a defendant would not commit a crime by having
consensual sex with an adult “minor” who represented himself to be
younger than seventeen.
Second, under Section 33.021(d),
It is not a defense to prosecution under Subsection (c) that:…
(2) the actor did not intend for the meeting to occur; or
(3) the actor was engaged in a fantasy at the time of commission of the
offense.
If the defendant did not intend for the meeting to occur or if he was
engaged in a fantasy at the time of his communication, then his words
were not “directed to producing imminent lawless action”; were not
incitement; and do not lose First Amendment protection.
Sections 33.021(c), (a)(1) and (d) combined explicitly criminalize
fantasy: they forbid speech—fantasy speech—that is protected by the
First Amendment.
The essence of unprotected “incitement” is the intent that a
crime be committed imminently. See Brandenburg at 447 (1969) (“the
constitutional guarantees of free speech and free press do not permit a
State to forbid or proscribe advocacy of … law violation except where
21
such advocacy is directed to inciting or producing imminent lawless action
and is likely to incite or produce such action”) (emphasis added). If there
is no intent that a crime be imminently committed, there is no incite-
ment.
As the Court of Criminal Appeals noted in Lo,
Many states have enacted statutes aimed at preventing the 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; or (2) the statutes
include a specific intent to commit an illegal sexual act, i.e., the actor in-
tends to “solicit” or “lure” a minor to commit a sexual act.
Ex Parte Lo at 21 (emphasis added). Fantasy speech—speech with no
specific intent to commit an illegal sexual act—is not incitement. So
while Section 33.021(c) apparently includes a specific intent to commit
an illegal sexual act, which would make the speech incitement, sections
33.021(a)(1), (d)(2), and (d)(3) explicitly eliminate that element.6 The
speech forbidden by the totality of Section 33.021 is explicitly not in-
citement.
❧
6
This particular problem has been corrected by the Texas Legislature. Effective
September 1, 2015, Section 33.021(a)(1) will require that the complainant be a
minor or that the actor believe the complainant to be a minor; Section 33.021(d)(2)
and (3) will have been eliminated. See Texas Senate Bill 344, signed by the
Governor on May 22, 2015.
22
The unconstitutionally forbidden speech is substantial.
As part of the State’s burden of rebutting the presumption of Section
33.021’s unconstitutionality the State must show that the protected
speech is not substantial compared to the legitimate reach of the stat-
ute. The State cannot do so.
Substantial overbreadth is not to be measured in absolute terms,
but “in relation to the statute’s plainly legitimate sweep.” Broadrick v.
Oklahoma, 413 U.S. 601, 615 (1973).
The illegitimate Section 33.021 requires the conviction of a de-
fendant who speaks apparently soliciting words but does not intend
that a crime be committed, whether because he knows that the object
of his sexual attention, who “represents himself” to be a child, is not
in fact a child; or because he does not intend that a meeting occur.
Such a defendant’s speech is not unprotected incitement, but the re-
mains of Section 33.021 require his punishment, including his impris-
onment.
The speech described in the preceding paragraph—apparently
soliciting words spoken by someone who knows that the object of his
sexual attention is only pretending to be a child, or who does not in-
23
tend that a meeting occur—is “ageplay.” Ageplay is protected speech
(that is, it does not fall into any category of unprotected speech).
While Mr. Fisher has no burden beyond showing that the statute
is a content-based restriction on speech, he has presented uncontested
evidence that it is substantial. Please see CR 16–29, The Prevalence and
Scope of Ageplay. A search for books on Ama-
zon.com turns up more than 3,000 results.7
While the number of people interested in ageplay may not be
huge in absolute numbers, neither is the number of people willing to
solicit sex with actual children. For every person willing to engage in
extreme human behavior (here, sexual assault of children) there will
always be many more people interested in a tamer version (here, age-
play).
If soliciting speech with people who represent themselves (but
are not believed) to be children were not substantial in relation to solic-
iting speech with actual children, why would the Texas Legislature
have addressed such speech with Section 33.021(a)(1)? If fantasy
speech and soliciting speech with no intent to meet were not substan-
7
http://www.amazon.com/s/?url=search-alias%3Dstripbooks&field-
keywords=age+play+erotica (accessed January 1, 2015).
24
tial, why would the Texas Legislature have addressed them in Section
33.021(d)? It is no answer to say that the Texas Legislature intended
only to eliminate defendants’ false claims that they knew their corre-
spondents to be adults, or that they did not intend to meet their corre-
spondents: in all other cases we trust juries to determine what defend-
ants believed and intended, and we do not eliminate valid and consti-
tutionally required defenses in the interest of preventing the abuse of
those defenses.
If Section 33.021(a)(1) did not define “minor” to include a per-
son whom the defendant knows to be an adult, and if Section 33.021(d)
did not exclude the defenses of fantasy and lack of intent then Section
33.021(c) would forbid only true solicitation. But sex between consent-
ing adults is not a crime, and solicitation without intent is not solicita-
tion. Because true solicitation requires the specific intent that a crime
be imminently committed, Section 33.021(c) regulates speech other than
true solicitation.
Because Section 33.021 forbids a substantial amount of protected
speech, it is void.
❧
25
What about Ex Parte Victorick?
In the unpublished Ex Parte Victorick the Beaumont Court of Appeals
addressed a mess of complaints about the unconstitutionality of Sec-
tion 33.021(c). Ex Parte Victorick, 2014 WL 2152129, No.
09-13-005510-CR (Tex. App. — Beaumont May 21, 2014, pet. ref’d.).
In its Victorick opinion the Beaumont Court did not address the
contention that Section 33.021(d) eliminates the specific-intent ele-
ment from Section 33.021(c), nor even mention Section 33.021(d).
Based only on the dicta in Lo, the Victorick court concluded that
Section 33.021(c) “punishes conduct rather than the content of speech
alone.” This is a false conclusion. See Williams, 553 U.S. 285 (analyz-
ing a statute that criminalizes “advertis[ing], promot[ing], pre-
sent[ing], distribut[ing], or solicit[ing] child pornography as one that
“penalizes speech that accompanies or seeks to induce a transfer of
child pornography”) (emphasis added); United States v. Hornaday,
392 F.3d 1306, 1311 (11th Cir. 2004) (“Speech attempting to arrange
the sexual abuse of children is no more constitutionally protected than
speech attempting to arrange any other type of crime”) (emphasis
added).
26
Because the Victorick court called speech “conduct” it applied
the wrong test and came to the wrong conclusion.
❧
Section 33.021 would also fail strict scrutiny.
Before adopting the categorical test of Alvarez and Stevens the United
States Supreme Court applied the strict scrutiny test of United States
v. Playboy Entm’t Grp., Inc., 529 U.S. at 813 to content-based re-
strictions on speech. This is the test that the Texas Court of Criminal
Appeals applied in Ex Parte Lo to hold Section 33.021(b) unconstitu-
tional; the balance of Section 33.021 fails strict scrutiny as it does the
more modern categorical test.
To satisfy strict scrutiny under the Playboy test, a law that regu-
lated speech based on its content had to be (1) necessary to serve a (2)
compelling state interest and (3) narrowly drawn. Because such a stat-
ute was presumed to be unconstitutional, it was the burden of the State
to show that these three elements were met. Section 33.021 serves a
compelling state interest, but it is not narrowly drawn to serve that in-
terest: it covers not only solicitation of children, but also solicitation of
consenting adults playing make-believe, as well as fantasy talk (short of
27
solicitation) toward children.8 Because Section 33.021, read together,
is not narrowly drawn, Section 33.021 is unconstitutional.
❧
Point of Error Three: The trial court erred in denying Mr. Fisher relief because what
remains of Section 33.021 is unconstitutionally vague in violation of the
Fourteenth Amendment.
“No State shall make or enforce any law which shall abridge the privi-
leges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of
law….” U.S. Const. Amend. XIV.
[T]he terms of a penal statute … must be sufficiently explicit to inform
those who are subject to it what conduct on their part will render them li-
able to its penalties … and a statute which either forbids or requires the
doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application violates
the first essential of due process of law.
Connally v. General Construction Co., 269 U.S. 385, 391 (1926).
The San Antonio court of appeals has rejected a vagueness attack
on Section 33.021. In the crux of its opinion the court inadvertently il-
lustrates the vagueness of the statute:
The requisite intent arises within the conduct of soliciting the minor, and
must exist at the time of the prohibited conduct of solicitation. Id. In-
8
The new Section 33.021, as amended by the Texas Legislature this session and
signed by the governor, is an example of a more narrowly drawn statute.
28
deed, it is the requirement that the defendant must solicit "with the in-
tent that the minor will engage in sexual contact" that operates to make
otherwise innocent conduct, i.e., soliciting a minor to meet, into criminal
conduct. It follows then, that for purposes of a subsection (c) solicitation
offense, it does not matter what happens after the solicitation occurs be-
cause the offense has been completed; it does not matter whether the so-
licited meeting actually occurs, or that the defendant did not intend for
the meeting to actually occur, or that the defendant was engaged in a
fantasy at the time of the solicitation.
Zavala, 421 S.W.3d at 232 (emphasis added).
Of course what happens after the solicitation does not matter;
neither does whether the solicited meeting actually occurs. But it can-
not be true that …
“[I]t does not matter … that the defendant did not intend for the meet-
ing to actually occur, or that the defendant was engaged in a fantasy at
the time of the solicitation.”…
… “follows” from …
“The requisite intent [that the minor engage in sexual contact] … must
exist at the time of the prohibited conduct of solicitation.”
Id. Those two propositions are direct opposites. Either the defendant
intended at the time of the solicitation to meet and have sex with a
child, or he did not. If the defendant did not intend for a meeting to
occur, then he did not intend that the “minor” engage in sexual con-
tact. Either it matters what the defendant intended, or it does not.
As the First Court has said, it does not matter, according to the
statute, what the defendant intended: “[S]ubsection 33.021(d) pro-
29
vides that an accused cannot defend against an online solicitation of a
minor charge by asserting that he was engaged in a fantasy at the time
of commission of the offense.” Maloney, 294 S.W.3d at 626.
Section 33.021(d) eliminates the intent element from Section
33.021(c). As a result, Section 33.021 forbids “solicitation” that is not
intended to result in a meeting. People of common intelligence must
necessarily guess at the meaning of Section 33.021 and—like the First
Court and the San Antonio Court of Appeals—differ as to its applica-
tion. So even if Section 33.021 were not overbroad—if it did not pun-
ish a substantial amount of constitutionally protected fantasy or age-
play—it would be void for vagueness under the Due Process Clause of
the United States Constitution.
❧
Point of Error Four: The trial court erred in denying Mr. Fisher relief because what
remains of Section 33.021 violates the Dormant Commerce Clause.
If Section 33.021 were neither overbroad nor vague, it would still vio-
late the Dormant Commerce Clause: it unduly burdens interstate
commerce by attempting to place regulations on Internet users every-
where, to forbid online ageplay everywhere. This “negative aspect” of
the Commerce Clause represents the notion that by specifically grant-
30
ing the United States Congress the power to legislate in this area, the
Commerce Clause prohibits the states from legislation that unduly re-
stricts interstate commerce. U.S.C.A. Const. Art. I § 8.
In American Libraries Association v. Pataki, the U.S. District Court
for the Southern District of New York struck down, as violative of the
Dormant Commerce Clause, a law that made it a crime for an individ-
ual to use a computer to communicate sexual material harmful to a mi-
nor. American Libraries Association v. Pataki, 969 F. Supp. 160, 163
(S.D.N.Y. 1997). The court held that the statute violated the negative
aspect of the Commerce Clause because it unduly burdened interstate
commerce in the traffic of goods, services, and ideas. Id. at 184. Like-
wise, it is impossible to restrict the effects of Section 33.021 to conduct
occurring within Texas. Section 33.021 seeks to regulate communica-
tions occurring wholly outside Texas; it imposes a burden on interstate
commerce that is disproportionate to the local benefits it is likely to
engender; and it subjects Internet users to inconsistent state obliga-
tions. See id.
❧
31
Prayer for Relief
For these reasons, Mr. Fisher asks the Honorable Court of Appeals to
reverse the trial court’s denial of habeas corpus relief and remand the
case to the trial court with orders to dismiss the indictment.
❧
Respectfully Submitted,
______________________
Mark W. Bennett
Counsel for Appellant
32
Certificate of Service
A copy of this Brief for Appellant has been served upon the State of
Texas by electronic filing.
Word Count
According to Microsoft Word’s word count, this brief contains 6,034
words, not including the: caption, identity of parties and counsel,
statement regarding oral argument, table of contents, index of authori-
ties, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of ser-
vice, certification, certificate of compliance, and appendix.
______________________
Mark W. Bennett
33