Jeffrey Wayne Fujisaka v. State, 472 S.W.3d 792

Jeffrey Fujisaka was charged under Tex. Penal Code § 43.25(b) for knowingly inducing a minor to engage in sexual conduct via private Skype video sessions; he filed a pretrial habeas application asserting § 43.25(b) is facially unconstitutional under the First Amendment.
§ 43.25(b) criminalizes employing, authorizing, or inducing a child under 18 to engage in sexual conduct or a sexual performance; definitions include “sexual conduct” and “performance” and contain several affirmative defenses (spouse, within two-year age gap, bona fide medical/educational purpose).
Fujisaka’s challenge was a facial overbreadth/First Amendment claim: he argued the statute is content-based because "authorizing" and "inducing" frequently involve speech and therefore must survive strict scrutiny.
The State argued § 43.25(b) primarily regulates conduct (often criminal conduct) rather than protected speech and that most covered conduct is already criminal under other penal provisions; thus overbreadth is not substantial.
The court examined statutory language, common meanings of “authorize” and “induce,” the statute’s scienter and defenses, and precedents distinguishing regulation of conduct from regulation of protected speech.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 43.25(b) is facially overbroad under the First Amendment	§ 43.25(b)’s bans on “authorizing” and “inducing” criminalize persuasive speech and are content-based, so statute must satisfy strict scrutiny and fails narrow tailoring	The statute targets conduct (often already criminal) not protected speech; the troublesome applications are rare and not substantial compared to the statute’s legitimate sweep	The court held the statute is not substantially overbroad and survives scrutiny; facial challenge fails
Whether the statute implicates protected speech when applied to inducement/authorization of 17‑year‑olds (age-of-consent tension)	Because Texas sets age of sexual consent at 17, inducement/authorization of consensual 17‑year‑old sexual activity could criminalize protected speech and thus is problematic	Even where 17 is age of consent for some Title Five offenses, Title Nine (public decency) may validly set an 18‑year threshold; many applications involve illegal transactions or conduct outside First Amendment protection	The court acknowledged tension but found the problematic applications narrow and not substantial; statute’s legitimate applications prevail

United States v. Stevens, 559 U.S. 460 (2010) (overbreadth doctrine and limits when conduct overlaps with expression)
Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth must be real and substantial relative to legitimate sweep)
City of Houston v. Hill, 482 U.S. 451 (1987) (ordinance criminalizing "interrupting" police invalidated for regulating protected speech)
United States v. Williams, 553 U.S. 285 (2008) (a statute is not overbroad merely because some hypothetical applications are conceivable)
New York v. Ferber, 458 U.S. 747 (1982) (government has compelling interest in preventing sexual exploitation of children)
United States v. O'Brien, 391 U.S. 367 (1968) (distinguishing conduct with incidental expression from protected speech)
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (online solicitation and speech-conduct analysis)
Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) (facial challenges and content-based regulation)
Dornbusch v. State, 156 S.W.3d 859 (Tex. App.—Corpus Christi 2005) (inducement need not be verbal; conviction for inducing 17‑year‑olds upheld)
Loper v. New York City Police Dept., 999 F.2d 699 (2d Cir. 1993) (loitering/begging restrictions implicated protected speech)
State v. Melchert-Dinkel, 844 N.W.2d 13 (Minn. 2014) (prohibition on advising/encouraging suicide found to implicate substantial protected speech)