Professional Documents
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01 02 09 WFP Communications
01 02 09 WFP Communications
01 02 09 WFP Communications
By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy
Sinclair
In 2005 the Texas Legislature enacted Article 33.021, Texas Penal Code,
which prohibits “sexually explicit” communications between someone who
is 17 years or older and someone who “represents himself or herself to be
younger than 17 years of age.” Some respected legal bloggers have opined
that such online sexually explicit “communications” may violate the First
Amendment’s guarantee of free speech.
The issue of whether § 33.021 violates either doctrine has not been
addressed by either the Texas Court of Criminal Appeals or the federal
courts. But it should be pointed out that § 33.021 is similar to 18 U.S.C. §
2422(b) which prohibits:
Will a First Amendment challenge to Texas’ § 33.021 will meet the same
fate as the § 2422(b) challenges. The issue is quite simple: is there a “free
speech” protection when a person 17 years or older engages “sexually
explicit” communications with a real person who is under 17 years of age or
even a person who is actually 17 years or older but represents himself or
herself to be under 17 years of age, such as a law enforcement officer?
Criminal statutes such as § 33.021 and § 2422(b) were enacted not so much
as to punish prohibited conduct but rather to prevent actual prohibited
conduct; specifically, to prevent adults from using the Internet to persuade,
entice or encourage minors into prohibited sexual activity.
As a result Congress and the federal courts have made one thing abundantly
clear: adults do not have a constitutionally protected right or constitutionally
inherited freedom to use the Internet to engage in any kind of sexually
explicit communications with a person who represents himself or herself to
be a minor [under the age of seventeen in Texas].
And that is why § 33.021 will most likely survive the inevitable First
Amendment challenges.
By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy
Sinclair