Lo, Ex Parte John Christopher
2013 Tex. Crim. App. LEXIS 1594
| Tex. Crim. App. | 2013Background
- John Christopher Lo was indicted under Tex. Penal Code § 33.021(b) for knowingly communicating in a "sexually explicit" manner with a person he believed to be a minor with intent to arouse or gratify sexual desire.
- Lo filed a facial habeas challenge arguing § 33.021(b) is: overbroad (chills protected speech), vague (uncertain what "relates to" sexual conduct means), and violates the Dormant Commerce Clause.
- The trial court denied relief; the First Court of Appeals affirmed. The Texas Court of Criminal Appeals granted review to decide whether § 33.021(b) is facially unconstitutional.
- § 33.021 contains separate provisions: (c) criminalizes solicitation to meet a minor for sexual activity (upheld elsewhere as conduct/speech aimed at illegal acts); (b) criminalizes online communication or distribution of materials that are "sexually explicit" (defined as any communication that "relates to or describes sexual conduct") when the actor intends to arouse or gratify sexual desire.
- The Court held the court of appeals applied the wrong standard by presuming the statute valid; content-based speech restrictions trigger a presumption of invalidity and strict scrutiny.
- Applying strict scrutiny and the overbreadth doctrine, the Court concluded § 33.021(b) is unconstitutionally overbroad because it reaches a substantial amount of protected speech that is not already covered by narrower statutes (obscenity, harmful-to-minors, child pornography, solicitation, harassment).
Issues
| Issue | Plaintiff's Argument (Lo) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Proper standard of review for content-based speech restriction | Statute is content-based; presumption of invalidity and strict scrutiny apply | Court of appeals treated statute as presumptively valid | Court: statute is content-based; apply presumption of invalidity and strict scrutiny |
| Whether § 33.021(b) is overbroad under the First Amendment | Prohibits substantial protected speech (non‑obscene, non‑harmful sexual expression, literature, film, art) in addition to unprotected categories | Provision is narrow: targets only "sexually explicit" communications with requisite intent to arouse | Court: overbroad — reaches large amount of protected speech and is not narrowly tailored |
| Whether the statute is narrowly tailored to protect children / least restrictive means | Criminalizes titillating speech broadly; narrower statutes (solicitation, obscenity, harmful material, harassment) already address the harms | Scienter (intent to arouse) and internet focus tailor the statute to protect against grooming | Court: compelling interest exists but § 33.021(b) is not the least restrictive means; alternatives and existing statutes make this provision unnecessary |
| Vagueness and Dormant Commerce Clause claims | Argued statute is vague ("relates to" sexual conduct) and may exceed state power over interstate internet communications | State did not rely on those claims to save § 33.021(b) | Court: did not reach vagueness or Dormant Commerce Clause because overbreadth resolved the case |
Key Cases Cited
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (content-based restrictions on speech are presumptively invalid)
- United States v. Playboy Entm't Grp., 529 U.S. 803 (2000) (content-based speech restrictions trigger strict scrutiny)
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) (government may not suppress protected speech to facilitate enforcement against unprotected speech)
- Reno v. ACLU, 521 U.S. 844 (1997) (federal prohibition on non‑obscene, indecent internet speech to minors was overbroad)
- New York v. Ferber, 458 U.S. 747 (1982) (state has compelling interest in protecting children from sexual exploitation)
- Miller v. California, 413 U.S. 15 (1973) (definition and limits of obscenity)