The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare!

Posted on | November 1, 2013 | 40 Comments

Apparently, the Court sees no distinction between Shakespeare, a Miley Cyrus video and obscene text messages:

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.

 

Category: Constitution, Crime, Sex, Texas

Comments

40 Responses to “Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare!”

  1. MrEvilMatt
    November 1st, 2013 @ 9:29 am

    Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare!: Apparently, the Court sees no dist… http://t.co/tGlF8IGiVK

  2. CHideout
    November 1st, 2013 @ 9:29 am

    Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare!: Apparently, the Court sees no dist… http://t.co/iszTGt3hIs

  3. Resista38176897
    November 1st, 2013 @ 9:29 am

    Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare!: Apparently, the Court sees no dist… http://t.co/XCvaAhVQRd

  4. jwbrown1969
    November 1st, 2013 @ 9:29 am

    Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare!: Apparently, the Court sees no dist… http://t.co/arbHDgBYgV

  5. Lockestep1776
    November 1st, 2013 @ 9:29 am

    Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare!: Apparently, the Court sees no dist… http://t.co/FDqupTMZi3

  6. Citzcom
    November 1st, 2013 @ 9:29 am

    Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare!: Apparently, the Court sees no dist… http://t.co/o2ySpIdpG7

  7. rsmccain
    November 1st, 2013 @ 9:49 am

    Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare! http://t.co/nDIMBO4YBU cc @texasbryanp @MrEvilMatt @MelissaTweets

  8. rsmccain
    November 1st, 2013 @ 9:57 am

    RT @commonpatriot: via @rsmccain: Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare! http://t.co/Wf9tZ7U1Jj #tcot

  9. RS
    November 1st, 2013 @ 10:02 am

    Evidently, this judge believes that the First Amendment not only prevents government interference in what someone says, but also requires that an unwilling audience actually listen. It would be the same as requiring my neighbors to view hard-care pornography if I decided to show them on a big screen in my backyard. I am unaware of any case which allows speech to be broadcast to an unwilling recipient in the privacy of his/home. Does this mean that perverts can start calling my house at will and throw filth at my family?

  10. Dana
    November 1st, 2013 @ 10:19 am

    This is one in which I will have to disagree with our esteemed host. The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” To me, “Congress shall make no law” means exactly that: Congress shall make no law. It says nothing about how uplifting or vile the speech might be, nor whether it is popular or unpopular, and that’s the way things should remain.

    Speech can have consequences, of course: yelling “Fire!” in a crowded theater is the common example, but the consequences only obtain if the speech causes harm by starting a stampede for the exits; if everybody just laughs it off, there are no consequences, even though the act was the same.

    The Bill of Rights does make some things more difficult; we have to give people like Bill Schmalfeldt due process of law and we have to allow pedophiles the opportunity to defend themselves.

    And I would argue — doubtlessly unsuccessfully — that some laws about child pornography are unconstitutional. The laws are based on the fact that to produce child porn, a child had to be abused. To me, such laws could apply only to child porn produced in the United States; I fail to see how our legal jurisdiction can make it a crime to produce child porn in Malaysia, even if that child porn is transmitted and viewed here. Not many people would agree with my interpretation, but I believe it is valid.

  11. Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare! : The Other McCain | Dead Citizen's Rights Society
    November 1st, 2013 @ 10:23 am

    […] Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare! : The Other McCain. […]

  12. shadowofzen
    November 1st, 2013 @ 10:24 am

    RT @commonpatriot: via @rsmccain: Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare! http://t.co/Wf9tZ7U1Jj #tcot

  13. GulfDogs
    November 1st, 2013 @ 10:37 am

    ?Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare!?http://t.co/zLTnOT5gfQ

  14. RS
    November 1st, 2013 @ 10:38 am

    With due respect, you’re missing the point. The First Amendment does indeed guarantee the right to “speak,” however that may be defined. It does not guarantee an audience. It’s one thing to write filth; it’s another thing to foist it upon someone, especially children. The content here is irrelevant. Right now, states can prevent telemarketers from calling phone numbers if the recipient objects. It doesn’t matter what they’re selling. There are constitutional laws against “junk faxes,” assuming people still use fax machines. If it were not so, Larry Flynt could start throwing his magazines on my driveway without my permission.

    Second, our jurisdiction does not criminalize acts occurring in Malaysia. It criminalizes possession or accessing materials in the United States.

  15. whig
    November 1st, 2013 @ 10:45 am

    As a matter of constitutional law as propounded by the Supreme Court, the Appellate court is correct. The Texas law is not narrowly tailored to address the compelling interest of the state in protecting youth from being molested. Generally speaking, even speech calling for violent action is protected unless specific threats of immediate violence occur (see Brandenburg and also Reno v. ACLU cited in the case for sex related speech).

    Since the burden is reversed in First Amendment cases, the government failed in its burden to prove that the law did not punish permissible speech as well as specific speech tailored to soliciting minors for sex. The existence of another statute that was held constitutional dealt with the narrow category of solicitation which is not constitutionally protected and may be criminally prosecuted.

    IMHO, the Texas law is overly broad and should have been struck down. Texas should do a better job of drafting its legislation.

    RS, as a matter of constitutional law, you are incorrect. For example, it is unconstitutional for a government to ban door to door solicitation even if the speech is unwelcome (individuals may still have no trespassing signs and prosecute). I don’t appreciate political telemarketing calls but limits on them calling implicate protected political speech even if unwelcome. Obscenity laws generally would apply in the case of sending explicit images etc. to minors and would be constitutional. Just as the state could punish you for public sex, explicit depictions of sex (your hardcore movie night in the backyard) where children might be reasonably able to see it, or obscene material (see Miller v. Calif) that was disseminated to children.

    The law was defective because if the material merely raises the prurient interest, it still must be patently offensive, lack any serious scientific, literary, artistic, historical, yadda yadda yadda value to be regarded obscene. Example, sending someone an image of Michelangelo’s David or the famous armless statue of Venus, etc. whether a minor or not, would be construed constitutional. Likewise for nude potrayals of Adam and Eve, etc.

    Texas should have went with the intent to solicit charge which is harder to prove but constitutionally valid. The guy is probably a creep and attempted child seducer but the state charged him using a law that was not constitutional. The Rule of Law (this is the part where many say that the Law is an Ass) requires the state to prove that its statute was not overly broad. They failed. Thus, the guilty goes free because the constable (Texas Legislature and the prosecution) blundered. Moral: write better laws and do a better job on investigation–intent was probably pretty easy to prove in this case.

    For those of you who are cursing the court about freeing the pervert, how do you feel about the Tom Delay conviction which in a similar fashion, the state appellate courts threw out because of the alleged solicitation for corporate donations.

  16. RS
    November 1st, 2013 @ 11:04 am

    Please provide me a U.S. Supreme Court citation which says that a person has a First Amendment right to invade my privacy or my children’s privacy merely because they are engaged in speech. That is, that your right to speech trumps my right to privacy and my parental right to govern who speaks to my children.

  17. Professor_Why
    November 1st, 2013 @ 11:37 am

    Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare! http://t.co/uOmaQ2knYF

  18. Dana
    November 1st, 2013 @ 11:38 am

    Perhaps I missed it in the original, but the law struck down is aimed at the person “speaking;” where does it state that the recipient must listen?

    From the article you cited:

    Speaking about the impact of the ruling, Bennett said parents, not the government, should be policing who is talking to their children and what is being said.

    “Parents have the job of dealing with this. This is not the government’s job,” he said. “Keep track of who your kids are
    communicating with and teach your kids what’s appropriate and what’s not.”

    No one is stating that the recipients may refuse the communication, or that their parents may not allow such to be opened; having a right to freedom of speech does not impose on others the requirement to listen.

  19. rsmccain
    November 1st, 2013 @ 12:04 pm

    Controversy in the comments http://t.co/nDIMBO4YBU Talking dirty to kids = First Amendment?

  20. RS
    November 1st, 2013 @ 12:07 pm

    Of course the law is directed at the speaker, because the speaker is the one communicating. So, how many such unsolicited communications are allowed? One freebie? Two? A Thousand? It’s quite easy to say, “it’s the parents’ job,” but even the most diligent parent cannot monitor communications with/to his child 24/7. It’s an extraordinarily disingenuous response to say it’s the parent’s responsibility. Predators are quite skilled at circumventing parental supervision. And equating pornographic written communications with books that may be obtained or not at the library or a television program which may be viewed or turned off is absurd in the extreme. The issue at hand is targeted communications to a minor, which communications have no legitimate purpose whatsoever, and which no amount sophistry can legitimize.

  21. MrEvilMatt
    November 1st, 2013 @ 12:36 pm

    RT @rsmccain: Controversy in the comments http://t.co/nDIMBO4YBU Talking dirty to kids = First Amendment?

  22. JoyKeller1
    November 1st, 2013 @ 1:30 pm

    #Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare! http://t.co/McxPRCnDU4

  23. Evi L. Bloggerlady
    November 1st, 2013 @ 1:32 pm

    The judge is obviously a product of a failed and corrupted American education system.

    Now it is true Shakespeare plays can be rather bawdy. It was just St. Crispin’s Day and anyone who has watched Henry V, knows there are a few scenes in that production that have some sexual references (leeks!). But to compare the wit of the Bard to Miley Cyrus takes a leap that can only be the product of a mix of interior law school gibberish and progressive mush.

    Hence the line: ”The first thing we do, let’s kill all the lawyers,” Dick the Butcher in ”Henry VI,” Part II, act IV, Scene II, Line 73.

  24. pabarge
    November 1st, 2013 @ 2:02 pm

    http://s3.amazonaws.com/static.texastribune.org/media/profiles/politicians/cathy-cochran_jpg_800x1000_q100.jpg

    ^^^ click to view Cathy

    She has a wiki page:

    http://en.wikipedia.org/wiki/Cathy_Cochran

    appointed by Rick Perry.
    Term runs through 2014 (remember when she runs for (re)election.
    http://www.cca.courts.state.tx.us/court/judge_ccochran.asp

  25. Dana
    November 1st, 2013 @ 2:33 pm

    How is that logic different from that which has brought us Obaminablecare, because, as you have told us in your next article, the government is using coercion to take choices for you, using the law to tell us what is good for us and what we must — not should, must — do? The argument that parents cannot reasonably be expected to be able to defend their children against some very savvy predators is an argument which justifies government supervision on just about anything.

    We all agree that children need to be protected, but government power is not about unanimity; it is about the winners putting their policy prescriptions into law. If the government is justified in prohibiting communications which are evilly intended, you can be certain that there are those in our current government who would say that any criticism of Obumblecare is evilly intended, and that the government not only has the authority but the responsibility to prevent Robert Stacey Stacy McCain from saying things which might cause people not to use that oh-so-nobly-intended program.

  26. Dana
    November 1st, 2013 @ 2:37 pm

    I am very proudly an absolutist when it comes to our Constitutional rights; when the First Amendment says that “Congress shall make no law” on some subjects, I believe that it means exactly that, no law. When the Constitution says that “The right of the people to keep and bear arms shall not be infringed, I believe it means just that, shall not be infringed.

  27. RS
    November 1st, 2013 @ 3:06 pm

    Just so you know, I’ve actually defended people on constitutional grounds over the years. I’m still waiting for Whig to provide me a SCOTUS case cite for his legal pronouncements.

    Second, as has been established the First Amendment is not absolute. If you cannot see a rational basis for prohibiting sexually explicit communications targeted at a minor without the minor’s parents’ knowledge or consent, then there is truly no hope.

    Third, this is not about the coercive nature of the “nanny” state forcing adults to buy something they do not want. It is, yet again, about prohibiting sexually explicit communications deliberately targeted at a minor without the parents’ knowledge or consent.

    Fourth, your suggested that I argued “that parents cannot reasonably be expected to be able to defend their children against some very savvy predators . . .” is patently false. Further, let me suggest that if I, as a parent, cannot expect public support for protecting my children from such unwanted communications, then I most definitely will do it myself.

    Finally, it this sort of willful refusal to discriminate between Good and Evil, a blindness, the tentacles of which have wrapped themselves around our society, which leads to the absurdities we experienced with the #Free Kate mob and their enablers. It will be the death of us, yet.

  28. Adjoran
    November 1st, 2013 @ 3:14 pm

    The problem with drawing a distinction between garbage and literature is that someone gets to draw the line and for practical reasons that someone must be the government as the enforcer of laws. So while they may draw the line against obscenity sent to juveniles today, it may be the Tea Party website tomorrow.

    And that is precisely the point of the 1st Amendment. Speech of which we all approve never needed protection.

  29. #Rollout: If the Proverbial Tree Falls in The Forest…? | Regular Right Guy
    November 1st, 2013 @ 4:24 pm

    […] Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare! […]

  30. RS
    November 1st, 2013 @ 4:58 pm

    If you cannot distinguish between Shakespeare and obscenity targeted specifically to a minor you have bigger problems than anyone can deal with. Note the operative words, “targeted specifically at a minor.” Are you suggesting that we sacrifice our children to some patently absurd equivalency between political speech and making children an audience to whatever some pervert decides to communicate to them? Really? This is the exact same road the #Free Kate mob wants to take us down. Do you draw any lines? Can I now start handing out porn to the Trick or Treaters on Halloween? Really? We cannot regulate the dirty old man saying stuff to our kids, because, Thomas Paine! Or, Johann v. Goethe!

    So, let me pose this hypothetical, given that we know that “speech” can be more than just words. Is the dancer who decides to give a nude performance to the kids at the school bus stop afforded 1st Amendment protection for her/his “art?” If not, does that imperil a Tea Party website?

  31. McGehee
    November 1st, 2013 @ 5:58 pm

    Do they really need a law to deal with people sexting a minor child? It’s Texas, where the “he needed killing” defense originated.

  32. tlk244182
    November 1st, 2013 @ 6:48 pm

    Thank you both for arguing this point. This kind of thing is one reason why I love this site. It helps me think and informs my opinions. Btw, whoever gets the last word will probably ‘win,’ in my mind, since I go back and forth with each succeeding comment.

  33. A weekend blog tour | The Daley Gator
    November 1st, 2013 @ 8:40 pm

    […] The Other McCain: Court rules it is OK to talk dirty to kids […]

  34. Adjoran
    November 2nd, 2013 @ 12:53 am

    Neither I nor the court said there was no distinction between Shakespeare and other obscenity, the court held the law as written fails to draw such a distinction and in fact that certain works of Shakespeare would violate it as written.

    Neither does it violate anyone’s privacy to “target” them with an obscene message if they are on an open public board like this or publish their email address, for instance.

    There is little difference between that and what HBO, Cinemax, and Showtime put on every day. The law can prohibit actual solicitation of minors as a state interest, but the mere dissemination of speech without unlawful entreaties or suggestions is not illegal just because it is not invited.

  35. Bob Belvedere
    November 2nd, 2013 @ 4:46 pm

    Or Establishment Republican…

    http://thecaucus.blogs.nytimes.com/2013/11/01/republican-campaign-committee-pushes-back-against-conservative-group/

  36. Bob Belvedere
    November 2nd, 2013 @ 4:53 pm

    Dana gave the game away when he wrote: I am very proudly an absolutist when it comes to our Constitutional rights….

    The only thing that can be absolute is Truth; any other claims of it are the products of Ideology.

  37. Bob Belvedere
    November 2nd, 2013 @ 5:02 pm

    Your commentary is all spot-on, RS.

    As one SC Justice Jackson wrote: ‘The Constitution is not a suicide pact’.

    Common Sense must govern enforcement of the laws. If the law that was stuck down was abused before it was ruled unconstitutional, then it is up to we citizens to target said official or officials for removal. If Virtue in the Sovereign People is lacking to perform this task, then maybe their nation doesn’t deserve to survive.

  38. Dana
    November 2nd, 2013 @ 6:28 pm

    Mr Belvedere, can you tell me what part of

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    is not absolute? The Constitution specifically prohibits the Congress from passing an law, an law at all, which abridges the freedom of speech or prohibiting the free exercise of religion. That some, including our esteemed host, believe that there is areal common sense exception which should be made concerning those sexually interested in children, the First Amendment leaves no opening for such an exception.

    The Bill of Rights does leave some room for interpretation, such as what constitutes a reasonable search, but leaves none in the first two amendments.

  39. adamwatkins16
    November 4th, 2013 @ 10:19 am

    @BTLSRadio http://t.co/z3mXHJhbFM

  40. mzstr8_nochaser
    November 4th, 2013 @ 11:31 am

    WTF?!?! This can’t be life! Texas Appeals Court: It’s OK to Talk Dirty to Kids, Because … Shakespeare! http://t.co/yJufN2m5aK