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Texas Online Solicitation of a Minor Statute Overbroad

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 or by electronic mail or a commercial online service, intentionally communicates in a sexually explicit manner with an individual who represents himself or herself to be younger than 17 years of age.

That’s one part of the Texas Online Solicitation of a Minor statute (cut and pasted for readability); it is my opinion that it violates the First Amendment by criminalizing protected communications between adults.

There is no requirement that the person on the other end of the line be a child, or even that the actor believe the person on the other end of the line to be a child. So the statute criminalizes dirty talk between adults if one of them is pretending to be a child — even if the other one knows that the other is just pretending.

Because it reaches constitutionally protected speech (for example, sexually explicit communication between two grown-ups playing “naughty teenager” on the internet — both could be prosecuted), the Online Solicitation of a Minor statute is overbroad and unconstitutional.

What do you think? First Amendment experts? Anyone?


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