III. TEXAS PENAL CODE SECTION 21.19 WILL BE DECLARED UNCONSTITUTIONAL

III. TEXAS PENAL CODE SECTION 21.19 WILL BE DECLARED UNCONSTITUTIONAL
1. A. *Texas Penal Code Section 21.19 Is Facially Unconstitutional *

III. TEXAS PENAL CODE SECTION 21.19 WILL BE DECLARED UNCONSTITUTIONAL

A. Texas Penal Code Section 21.19 Is Facially Unconstitutional

The government has more flexibility and control regulating in-person indecency and nudity—or when it is transmitted by broadcasting—because minors can be easily subjected to it.¹⁴⁰ There are also federal laws protecting children from harmful or obscene material on the Internet, which

¹³⁵. Id. § 42.07(a)(1).

¹³⁶. Compare id. § 21.19 (requiring the offender “knowingly” send inappropriate materials), with id. § 42.07(a)(1) (requiring the offender send inappropriate materials with “intent to harass, annoy, alarm, abuse, torment, or embarrass another”).

¹³⁷. Id. § 42.07(a).

¹³⁸. Id. § 21.19(b)(1).

¹³⁹. Mikey Campbell, Sending Unsolicited Nudes via AirDrop Might Soon Be Illegal in NYC, APPLEINSIDER (Nov. 30, 2018, 10:00 PM), https://appleinsider.com/articles/18/12/01/sendingunsolicited-nudes-via-airdrop-might-soon-be-illegal-in-nyc [https://perma.cc/M4M8-87N3] (noting AirDrop presents a preview of the image on the receiver’s screen before they choose to accept or decline it, and users can send files anonymously).

¹⁴⁰. Public Indecency, supra note 44.

are not analogous to the protections adults have.¹⁴¹ What is harmful to minors is not always the same as what is harmful to adults. Even though harmful-to-minors laws may be more restricting, they typically survive constitutional challenge.¹⁴² For a state’s speech regulation to pass judicial muster, it must survive strict scrutiny.¹⁴³ TPC Section 21.19’s language criminalizing those who send visual materials of a “person’s intimate parts exposed” is subject to strict scrutiny because the material is protected free speech.¹⁴⁴ This language alone makes TPC Section 21.19 facially unconstitutional because it is overbroad—deterring both constitutionally protected speech and unconstitutional speech.¹⁴⁵ The protected speech in this case would be a “person’s intimate parts exposed,” such as genitalia, the female nipple, or buttocks. Obscenity, however, would be unconstitutional—and therefore unprotected—speech TPC Section 21.19 is trying to deter.¹⁴⁶

1. Introduce the Language

H.B. 2789 (Texas Penal Code Section 21.19) “relat[es] to the creation of the criminal offense of unlawful electronic transmission of sexually explicit visual material.”¹⁴⁷ H.B. 2789 explains “intimate parts,” “sexual conduct,” and “visual material” have meanings assigned by Section 21.16 of the Texas

¹⁴¹. See Citizen’s Guide to U.S. Federal Law on Obscenity, U.S. DEP’T OF JUST., https://www.justice.gov/criminal-ceos/citizens-guide-us-federal-law-obscenity [https://perma.cc/ A22D-MCX7] (“It is illegal for an individual to knowingly use interactive computer services to display obscenity in a manner that makes it available to a minor less than 18 years of age. It is also illegal to knowingly make a commercial communication via the Internet that includes obscenity and is available to any minor less than 17 years of age.”) (citations omitted).

¹⁴². See Hudson Jr., Harmful to Minors Laws, supra note 100 (“Nearly every state has some form of harmful-to-minors law. Many of these laws limit distribution of sexually explicit material to minors.”).

¹⁴³. See Strict Scrutiny, supra note 87 (providing an overview of strict scrutiny).

¹⁴⁴. See Victoria L. Killion, First Amendment: Categories of Speech, CONG. RES. SERV. 1, 1–2 (Jan. 16, 2019), https://crsreports.congress.gov/product/pdf/IF/IF11072/3 [https://perma.cc/GYT9-Q7CG] (listing examples of unprotected speech, none of which include “nudity” or “intimate parts exposed”).

¹⁴⁵. David L. Hudson Jr., Facial Challenges, FIRST AMEND. ENCYCLOPEDIA, https://www.mtsu.edu/first-amendment/article/954/facial-challenges [https://perma.cc/WTR3- TC22] (providing an overview of facial unconstitutionality).

¹⁴⁶. See Miller v. California, 413 U.S. 15, 36 (1973) (holding obscenity is not protected by the First Amendment).

¹⁴⁷. Act of Apr. 25, 2019, 86th Leg., R.S., ch. 848, § 1, sec. 21.19, 2019 Tex. Sess. Law Serv. 848 (codified at TEX. PENAL CODE ANN. § 21.19).

Penal Code.¹⁴⁸H.B. 2789 starts by criminalizing “any person engaging in sexual conduct or with the person’s intimate parts exposed.”¹⁴⁹ H.B. 2789 allows for prosecution of people who knowingly, electronically transmit visual material of “covered genitals of a male person that are in a discernibly turgid state”¹⁵⁰—without the “request of or with the express consent of the recipient.”¹⁵¹ “Person” is not explicitly defined within H.B. 2789, but is defined within Chapter 1, Section 1.07 of the Texas Penal Code, entitled: “General Provisions.”¹⁵² However, the key phrase “express consent” is not defined within H.B. 2789, nor is it defined within the Texas Penal Code. Since “express consent” lacks statutory definition, the courts should read this phrase “in context and construed according to . . . common usage”¹⁵³ and construe the phrase accordingly if it has “acquired a technical or particular meaning, whether by legislative definition or otherwise.”¹⁵⁴

2. Definition of “Person”

Although the meaning of the word “person” and how it is used within H.B. 2789 does not contribute to it being unconstitutional, it is necessary to know the definition and understand how it affects bill interpretation. Texas Penal Code Section 1.07 defines “person” as “an individual or a corporation, association, limited liability company, or other entity or organization governed by the Business Organizations Code.”¹⁵⁵ Within the same section, “individual” is defined as a “human being who is alive, including an unborn child at every stage of gestation from fertilization until birth.”¹⁵⁶ This definition completely rules out the criminalization of sending pictures of drawings or other art pieces such as Michelangelo’s David, which may show exposed intimate parts.¹⁵⁷ On the other hand, this definition allows prosecution of those who send photos or videos of any live human’s or

¹⁴⁸ TEX. PENAL CODE ANN. § 21.19.

¹⁴⁹. Id. § 21.19(b)(1)(A).

¹⁵⁰. Id. § 21.19(b)(1)(B).

¹⁵¹. Id. § 21.19(b)(2).

¹⁵². Id. § 1.07(a)(38).

¹⁵³. TEX. GOV’T CODE ANN. § 311.011(a).

¹⁵⁴. Id. § 311.011(b).

¹⁵⁵. PENAL CODE § 1.07(a)(38).

¹⁵⁶. Id. § 1.07(a)(26).

¹⁵⁷. Howard Halle, The Top Famous Sculptures of All Time, TIMEOUT (Oct. 29, 2019), https://www.timeout.com/newyork/art/top-famous-sculptures-of-all-time [https://perma.cc/Y7LR-DHAN] (showing a photo of Michelangelo’s sculpture, “David”).

unborn child’s intimate parts without express consent of the recipient.¹⁵⁸ This prohibition would technically prohibit sending a photo of a person’s nude newborn child to a person—even a family member of the newborn— without their consent, which is a fairly common practice.

3. Any Person Engaging in Sexual Conduct

Someone is criminalized under TPC Section 21.19 if—without express consent—they send visual materials of any person engaging in sexual conduct.¹⁵⁹“Sexual conduct” is defined as “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse” within Texas Penal Code Section 21.16.¹⁶⁰ Obscenity is not protected speech under the First Amendment.¹⁶¹ Although neither Section 21.19 nor Section 21.16 of the Texas Penal Code define “sexual conduct” as obscenity, obscene transmissions of sexual conduct are unprotected and can be criminalized under TPC Section 21.19.¹⁶² All fifty states have laws regulating and controlling obscene material.¹⁶³ Legal obscenity varies from state to state and depends on states’ standards of “whether the work depicts or describes, in a patently offensive way, sexual conduct.”¹⁶⁴ What is patently offensive is determined by the trier of fact and depends on the community standards in each state.¹⁶⁵ “Materials that are declared legally obscene are not protected; they may be censored, and [the] creators and distributors may be punished, sometimes with jail sentences” depending on the state law.¹⁶⁶ Ultimately, if the sexual conduct transmitted is considered obscene it can be criminalized under TPC Section 21.19.

¹⁵⁸. PENAL CODE § 21.19.

¹⁵⁹. *Id. *

¹⁶⁰. Id. § 21.16 (defining terms set out in TPC Section 21.19).

¹⁶¹. See generally Miller v. California, 413 U.S. 15 (1973) (holding obscenity is not protected by the First Amendment).

¹⁶². Hudson Jr., Miller Test, supra note 83.

¹⁶³. Obscenity, LEGAL INFO. INST., https://www.law.cornell.edu/wex/obscenity [https:// perma.cc/A6HT-LA96].

¹⁶⁴. Hudson Jr., Miller Test, supra note 83.

¹⁶⁵. Miller, 413 U.S. at 30 (explaining what appeals to the “prurient interest” and what is “patently offensive” are questions of fact—it is unreasonable for all states to uniformly have the same standards).

¹⁶⁶. Obscenity, COMM. L. & ETHICS, https://revolutionsincommunication.com/law/?page_id=45 [https://perma.cc/ZG2H-GP7Y].

4. Person’s Intimate Parts Exposed

Sending visual material depicting a person’s exposed intimate parts without the recipient’s request or express consent is considered unlawful under TPC Section 21.19.¹⁶⁷ Texas Penal Code Section 21.19 instructs “intimate parts” should be defined using the definition in Section 21.16.¹⁶⁸“Intimate parts” is thus defined as “the naked genitals, pubic area, anus, buttocks, or female nipple of a person.”¹⁶⁹ As previously explained, obscenity is not protected speech under the First Amendment; therefore, it may be regulated and even banned from being sold or transmitted at the discretion of each state.¹⁷⁰ The second prong of the Miller test for obscenity requires the speech to depict or describe, “in a patently offensive way, sexual conduct specifically defined by the applicable state law.”¹⁷¹ In Texas, “sexual conduct” is defined as “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse.”¹⁷² “Sexual contact” is defined as “any touching of the anus, breast, or any part of the genitals of another person with intent to arouse or gratify the sexual desire of any person.”¹⁷³ Sending material which has only intimate parts exposed does not fall under the scope of “sexual conduct. ¹⁷⁴ Therefore, because simply exposed intimate parts does not meet the second prong of the Miller test, it cannot be categorized as obscenity.¹⁷⁵

Texas Penal Code Section 21.19, in this case, is trying to place a restriction on content-based speech.¹⁷⁶ This type of speech is protected under the First Amendment, and if this protected content-based speech is restricted, the restriction must be subjected to strict scrutiny.¹⁷⁷ There are three levels

¹⁶⁷. TEX. PENAL CODE ANN. § 21.19.

¹⁶⁸. *Id. *

¹⁶⁹. Id. § 21.16.

¹⁷⁰. Obscenity, supra note 163.

¹⁷¹. Miller, 413 U.S. at 24.

¹⁷². PENAL CODE § 21.16.

¹⁷³. Id. § 21.01.

¹⁷⁴. Id. § 21.16.

¹⁷⁵. See Miller, 413 U.S. at 24 (listing the second prong of the Miller test). But see PENAL CODE § 21.19(b)(1)(A) (including sexual misconduct or the exposure of intimate parts in the definition).

¹⁷⁶. David L. Hudson Jr., Content Neutral, FIRST AMEND. ENCYCLOPEDIA, https://mtsu.edu/ first-amendment/article/937/content-neutral [https://perma.cc/87EP-NL5P] (“Content neutral refers to laws that apply to all expression without regard to the substance or message of the expression . . . in contrast to content-based laws.”).

¹⁷⁷. Strict Scrutiny, supra note 87.

of scrutiny determining “how courts prioritize competing interests of individual and governmental claimants.”¹⁷⁸ “Strict scrutiny is the most demanding form of judicial review.”¹⁷⁹ The Supreme Court has ruled strict scrutiny applies to “governmental classifications that are constitutionally ‘suspect,’ or that interfere with fundamental rights.”¹⁸⁰ The Constitution identifies fundamental rights, including the First Amendment right to free speech.¹⁸¹ In order to prohibit this type of protected speech, the law must have been passed to further a compelling governmental interest and have been narrowly tailored to achieve that interest.¹⁸² Although “compelling” has not been explicitly defined, it has been intended to be a higher interest than simply being “important” or “legitimate.”¹⁸³

Examples of visual materials that would be criminalized under TPC Section 21.19, if not sent with express consent, include: pictures of newborn’s buttocks, a sonogram depicting the intimate parts of an unborn child,¹⁸⁴ a picture of a woman breastfeeding displaying a female nipple,¹⁸⁵ a photo of an intimate part sent to an online doctor, ¹⁸⁶ and much more. Not only do these examples represent non-obscene visual material,¹⁸⁷ but TPC Section 21.19 does not contain the “intent” element Texas’s indecent exposure law contains.¹⁸⁸ It also does not include the “intentionally” or “knowingly” elements like Texas’s disorderly conduct law.¹⁸⁹ Lack of an

¹⁷⁸. Steiner, supra note 3 (explaining the different levels of governmental scrutiny).

¹⁷⁹. Rodney M. Perry, Obergefell v. Hodges: Same-Sex Marriage Legalized, FED’N AM. SCIENTIST 1 (2015), https://fas.org/sgp/crs/misc/R44143.pdf [https://perma.cc/9JZZ-GL2Z].

¹⁸⁰. Id. at 1.

¹⁸¹. Fundamental Right, LEGAL INFO. INST., https://www.law.cornell.edu/wex/fundamental_right [https://perma.cc/7CG8-8LJL].

¹⁸² Strict Scrutiny, supra note 87 (providing an overview of strict scrutiny).

¹⁸³. Perry, supra note 179 at 2.

¹⁸⁴. Ultrasound: Pelvic, Pregnancy, and Abdominal, UPMC, https://www.upmc.com/patientsvisitors/education/pregnancy/ultrasound-pelvic-pregnancy-and-abdominal [https://perma.cc/QD 8L-ZE4T] (explaining a baby’s genitals may be visible during an ultrasound).

¹⁸⁵. TEX. HEALTH & SAFETY CODE ANN. § 165.002 (“A mother is entitled to breast-feed her baby or express breast milk in any location in which the mother’s presence is otherwise authorized.”).

¹⁸⁶. In-Person Consult No Longer Necessary For Online Doctor “Visit”, CBS DFW (June 1, 2017), https://dfw.cbslocal.com/2017/06/01/in-person-consult-no-longer-necessary-for-online-doctor-vis it/ [https://perma.cc/RM7H-2Q5D] (explaining Texas allows consultation with a doctor via an app or without seeing a doctor in person first).

¹⁸⁷. See *Miller v. California, 413 U.S. 24 (1973) (stating, to be obscene, the speech must depict or describe “in a patently offensive way, sexual conduct specifically defined by the applicable state law”); see also* TEX. PENAL CODE ANN. § 21.16 (indicating intimate parts exposed does not rise to the level of being labeled “sexual conduct”).

¹⁸⁸. TEX. PENAL CODE ANN. § 21.08.

¹⁸⁹ Id. § 42.01(a)(10).

intent element, combined with the fact some images or videos may be criminalized which would not normally be seen as indecent or offensive, makes TPC Section 21.19 problematic.

Due to the fact TPC Section 21.19 restricts protected content-based speech, the government must prove the law was passed to further a “compelling governmental interest” and must have been narrowly tailored to achieve that interest.¹⁹⁰ The intent of this bill is to prevent unwanted sexually explicit pictures from being sent to unwilling recipients, and it is clear that this bill is not narrowly tailored to achieve that interest, as it criminalizes visual material which may not be obscene or unwanted. This categorizes the bill as being too broad to conform to this requirement, subsequently regulating protected speech. The legislative intent of H.B. 2789 (TPC Section 21.19) is to essentially make indecent exposure over the Internet or via electronic means illegal.¹⁹¹ In order to pass a bill to regulate this speech, there cannot be any less discriminatory means available in order to achieve the governmental goal.¹⁹² Texas Penal Code Section 21.19 does not use the least restrictive means to achieve its goal, and “if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference.”¹⁹³

Although wanting to create protection for those online who are victims of indecent exposure and creating a deterrent for future potential violators can both be used by the State to argue a compelling government interest, the final draft of TPC Section 21.19 was not written narrowly enough to be constitutional. Lawmakers did not take the proper steps to ensure this bill would not criminalize parties exercising their protected First Amendment rights.

Texas Penal Code Section 21.19 makes it a crime to knowingly send visual material depicting: “(A) any person engaging in sexual conduct or with the person’s intimate parts exposed; or (B) covered genitals of a male person that are in a discernibly turgid state” without being requested or without the

¹⁹⁰. Strict Scrutiny, supra note 87.

¹⁹¹. HB 2789, 86th Regular Session, supra note 11 (“Online recordings of House hearings for the 86th Regular Session,” “Video/Audio,” “86th Session (2019-2020)” under “Committees,” “Criminal Jurisprudence” link on “3/25/19” starting at 3:30).

¹⁹². Strict Scrutiny, supra note 87 (providing an overview of strict scrutiny).

¹⁹³. Dunn v. Blumstein, 405 U.S. 330, 343 (1972).

express consent of the recipient.¹⁹⁴ “Request” and “express consent” are not defined within TPC Section 21.19, nor are they defined within Section 1.07¹⁹⁵ or in Section 21.16,¹⁹⁶ which define some of the terms set out in TPC Section 21.19. TPC Section 1.07 does define “consent” as meaning “assent in fact, whether express or apparent” but does not give direction as to how one would define “express consent.”¹⁹⁷

When words or phrases are not explicitly defined within the statute and legislative intent cannot be determined, the courts should then read the words “in context and construed according to . . . common usage”¹⁹⁸ and construe them accordingly if they have “acquired a technical or particular meaning, whether by legislative definition or otherwise.”¹⁹⁹ What constitutes a crime under TPC Section 21.19 is very different from other Texas laws which include the word “consent.”²⁰⁰ In TPC Section 22.011, the law for sexual assault, there are not definitions provided for the words “consent” or “express consent,” but rather provides certain definitions of “without consent” and how it applies to in-person sexual assault cases.²⁰¹ This does not allow an individual to apply the same meaning given to “consent” in TPC Section 21.19 because 21.19 only deals with electronic visual material.²⁰² These sections address different circumstances and therefore the definition of “without consent” from Section 22.011 cannot appropriately apply to TPC Section 21.19.

Texas, by implementing TPC Section 21.19, became the first state to “directly combat unsolicited sexually explicit photos.”²⁰³ States without laws addressing revenge porn or other types of stalking or harassment usually require an intent element.²⁰⁴ This typically fails to provide the recipient protection from receiving unwanted visual material the very first

¹⁹⁴. PENAL CODE § 21.19 (codifying H.B. 2789).

¹⁹⁵. Id. § 1.07.

¹⁹⁶. Id. § 21.16.

¹⁹⁷. Id. § 1.07(a)(11).

¹⁹⁸ TEX. GOV’T CODE ANN. § 311.011(a).

¹⁹⁹. Id. § 311.011(b).

²⁰⁰. TEX. PENAL CODE ANN. § 22.01.

²⁰¹. Id. § 22.011.

²⁰². Id. § 21.19(b).

²⁰³. R.J. Johnson, New Law in Texas Makes it a Crime to Send Unsolicited Nude Photos, IHEARTRADIO (Sep. 1, 2019), https://www.iheart.com/content/2019-09-01-new-law-in-texasmakes-it-a-crime-to-send-unsolicited-nude-photos/ [https://perma.cc/GR58-LCRD].

²⁰⁴. See N.J. STAT. ANN. § 2C:33-4.1 (West 2014) (including “intent to harass” in the definition of Cyberstalking law); see also IND. CODE ANN. § 35-45-2-2 (West 2019) (“A person who, with intent to harass . . . .”).

time it is sent, unless it can be proven the perpetrator intended to harass, annoy, et cetera. Therefore, Texas cannot rely on other state laws to assist in defining “express consent.” Because “express consent” is not explicitly defined within the statute and legislative intent cannot be determined, it should be read according to common usage.²⁰⁵

Although “express consent” is not defined in the Texas Penal Code, “consent” is defined as “assent in fact, whether express or apparent.²⁰⁶ “Assent” can then be defined as an “[a]greement, approval, or permission; esp[ecially], verbal or nonverbal conduct reasonably interpreted as willingness.”²⁰⁷ “Express assent” is then defined as “[a]ssent clearly and unmistakably communicated.”²⁰⁸ When an element is “in fact,” it is an issue of fact to be “resolved by a trier of fact, i.e., a jury or, at a bench trial, a judge, weighing the strength of evidence and credibility of witnesses.”²⁰⁹ When applied to TPC Section 21.19, the jury, or if a bench trial, the judge, uses the evidence to decide whether the recipient of the material requested or expressly consented to receiving it.²¹⁰

The context, if any, of the conversation between the recipient and the sender will most likely determine whether the sender broke the law under TPC Section 21.19. Context may be lacking if the visual image was sent without any previous messaging back and forth between the sender and the recipient. If the recipient met the sender at a bar or on a dating site and exchanged numbers, one could argue this interaction alone is not express assent to receive a sexually explicit photo. But what if the two are messaging back and forth and the conversation turns into one more flirtatious, erotic, or sexual nature? A conversation of this nature, depending on the facts and wording of the conversation, may constitute express assent.²¹¹ The definition of “assent” can then be subjective,²¹² as the permission or approval is supposed to be reasonably determined as willingness.

To some, a flirtatious and seemingly sexual conversation, despite the recipient not literally and explicitly approving of receiving a sexually explicit

²⁰⁵. TEX. GOV’T CODE ANN. § 311.011(a).

²⁰⁶. TEX. PENAL CODE ANN. § 1.07(a)(11).

²⁰⁷ *Assent, *BLACK’S LAW DICTIONARY (11th ed. 2019).

²⁰⁸. Express Assent, BLACK’S LAW DICTIONARY (11th ed. 2019).

²⁰⁹. Question of Fact, LEGAL INFO. INST., https://www.law.cornell.edu/wex/question_of_fact [https://perma.cc/A7SC-XGQC].

²¹⁰. PENAL CODE § 21.19(b)(2).

²¹¹. See Express Consent, BLACK’S LAW DICTIONARY (11th ed. 2019) (“[a]ssent clearly and unmistakably communicated.”).

²¹². Assent, supra note 207.

photo, may be determined as willingness to receive such a kind of visual material. Others might argue it is not considered willingness, especially not by clear and unmistakably communicated assent. The subjective aspect of TPC Section 21.19 might make it difficult for prosecutors and juries to established and decide whether the recipient “expressly consented” to receiving of visual material. This may also be complicated by a generational disconnect, due to a major shift in dating culture, for determining what constitutes assent when it comes to dating and online conversations.

The term “request” on the other hand, is not as complicated to interpret as “express consent” within the context of TPC Section 21.19. TPC Section 21.19 criminalizes those who send sexual visual materials if it is not sent at the “request of or with the express consent of the recipient.”²¹³ Request can be defined as “the act of an instance of asking for something.”²¹⁴ This is more direct and less ambiguous than “express consent” because the legislative intent of the bill was to prevent unsolicited sexually explicit visual material from reaching unwilling participants,²¹⁵ and “request” makes it necessary for the recipient to be more proactive in asking for the pictures than merely exhibiting conduct that that can be interpreted as willingness. Although there cannot be a definitive phrase or exact wording to define “request” in this scenario, it can be inferred the person requesting would in some way need to ask the sender to send this specific visual material. Overall, these terms may make it more difficult for prosecutors to determine whether the law has been broken under TPC Section 21.19 given the current dating culture.