Ex Parte Stuart Oland Wheeler
01-14-00868-CR
| Tex. App. | May 14, 2015Background
- Appellant Stuart Oland Wheeler challenges Texas Penal Code §33.021(c)-(d), which criminalize communications soliciting sexual conduct with a person the speaker believes to be a minor (and related fantasy communications).
- The brief argues the statute is a content-based restriction on expression (speech or expressive conduct) and therefore presumptively invalid under the First Amendment and the overbreadth doctrine.
- The State contends §33.021 targets conduct (requesting illegal sexual acts) rather than protected speech; prior Texas decisions (Ex parte Lo, Maloney) treated the statute in a way that diminishes speech-protection analysis.
- Appellant emphasizes that solicitation is speech/protected expression in many authorities and that §33.021 criminalizes fantasy and role‑play between consenting adults, creating a chilling effect.
- Because the statute is content‑based, appellant argues the presumption of invalidity shifts the burden to the State to show the statute is not substantially overbroad; the State has not met that burden in the brief.
Issues
| Issue | Plaintiff's Argument (Wheeler) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether §33.021(c)-(d) regulates speech or unprotected conduct | §33.021 regulates expressive conduct/speech (solicitation and fantasy); words remain protected even if labeled conduct | The statute targets conduct—requesting a minor to commit illegal sexual acts—and is therefore not protected speech | Court of Criminal Appeals in Ex parte Lo treated solicitation as unprotected conduct in dicta; appellant argues this should be rejected and statute treated as content‑based speech subject to strict scrutiny |
| Whether a content‑based restriction presumption of invalidity applies | Because the statute is content‑based, it is presumptively invalid and the State must prove it is not substantially overbroad | Statute is aimed at unprotected categories (solicitation of minors/child pornography) and therefore constitutionally permissible | Appellant contends that presumption shifts burdens and requires courts to adopt constructions that render statute invalid if reasonable |
| Whether §33.021 is substantially overbroad (chills protected speech) | The statute criminalizes role‑play and fantasy between consenting adults and can be applied to protected expression, producing substantial overbreadth | The State implies prosecutions target actual solicitation of minors and not innocent fantasies; prosecutions of consenting adults will be rare | Appellant argues the State offered no showing that overbreadth is not substantial and that cases like Jennings show prosecutions of fantasy can and do occur |
| Proper interpretive/constitutional review standards | Content‑based regulation requires presumption of invalidity; courts must construe ambiguities against the statute and place the burden on the State | Traditional presumption of legislative validity applies (as in Maloney); courts should adopt constructions preserving constitutionality where possible | Appellant urges courts to apply First Amendment overbreadth analysis and reject Maloney’s pro‑validity interpretive posture where content‑based speech is regulated |
Key Cases Cited
- Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (addressed §33.021 and discussed solicitation and conduct; key appellate precedent criticized by appellant)
- Maloney v. State, 294 S.W.3d 613 (Tex. App.—Houston [1st Dist.] 2009) (discussed principles governing constitutionality review and presumption of validity)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (content‑based regulations of speech are presumptively invalid)
- New York v. Ferber, 458 U.S. 747 (1982) (applied overbreadth principles to speech‑regulating statute involving child sexual exploitation)
- Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth doctrine requires that invalidation of a statute on its face be for substantial overbreadth)
- U.S. v. Stevens, 559 U.S. 460 (2010) (First Amendment protects against overbroad statutes; cannot rely on executive restraint to avoid invalidation)
- Ex parte Thompson, 414 S.W.3d 872 (Tex. App.—San Antonio 2013) (recognizes First Amendment protects expressive conduct as well as speech)
- United States v. Hornaday, 392 F.3d 1306 (11th Cir. 2004) (describes speech arranging sexual abuse of children as unprotected solicitation)