693 S.W.3d 388
Tex. Crim. App.2024Background
- Michael Lowry was indicted under Tex. Penal Code § 43.262(b) for knowingly possessing a photograph depicting the lewd exhibition of a child’s pubic area (child <18) that appeals to prurient interest and lacks serious value.
- §43.262(b) criminalizes knowingly possessing, accessing with intent to view, or promoting visual material showing a lewd exhibition of a child’s genitals or pubic area (clothed/partially clothed/unclothed) that appeals to prurient interest and lacks serious literary, artistic, political, or scientific value; consent is not a defense.
- Lowry filed a pretrial habeas writ arguing §43.262(b) is (1) an impermissible content-based restriction failing strict scrutiny, (2) not limited to obscenity/child pornography, (3) unconstitutionally overbroad, (4) void for vagueness, and (5) violates the Texas Constitution.
- The trial court denied relief, the First Court of Appeals held §43.262(b) unconstitutional as both an impermissible content-based restriction and overbroad, relying on legislative history and concluding the statute reached protected "child erotica."
- On discretionary review the Texas Court of Criminal Appeals reversed the court of appeals: it held §43.262(b) regulates only unprotected child pornography, is subject to Ferber principles, is reasonably susceptible to a scienter-narrowing construction, and that Lowry failed to preserve his overbreadth claim for appellate review; the case was remanded for remaining errors.
Issues
| Issue | Plaintiff's Argument (Lowry) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether §43.262(b) is a content-based restriction that fails strict scrutiny | Statute reaches protected "child erotica" beyond obscenity/child pornography and is not narrowly tailored | Statute targets unprotected child pornography and serves compelling interest in preventing sexual abuse/exploitation | Held: statute regulates unprotected child pornography under Ferber and survives First Amendment attack |
| Whether §43.262(b) regulates only child pornography or broader protected material | Text and legislative history show the law targets "child erotica," not solely child pornography | Statute adequately defines pornographic material (lewd exhibition of genitals/pubic area) and fits Ferber criteria | Held: text + Supreme Court precedent show §43.262(b) can be construed to regulate only child pornography |
| Whether the scienter requirement attaches to attendant circumstances (vagueness/strict liability concern) | As written, “knowingly” modifies only the actions, risking strict liability for innocuous viewing/promoting | "Knowingly" should and can be read to attach to each attendant circumstance (lewdness, age, prurient appeal, lack of value) | Held: Court adopts narrowing construction that "knowingly" applies to attendant circumstances, satisfying Ferber scienter requirement |
| Whether the statute is unconstitutionally overbroad | Statute criminalizes a substantial amount of protected speech (e.g., teen selfies, artistic works like Cuties) | No; statute is limited by prurient/lewd/value elements and targets unprotected material | Held: Overbreadth claim was not preserved for appellate review, so Court did not reach merits |
Key Cases Cited
- Miller v. California, 413 U.S. 15 (obscenity test)
- New York v. Ferber, 458 U.S. 747 (child pornography is unprotected; Ferber limits)
- Brown v. Entertainment Merchants Ass'n, 564 U.S. 786 (strict scrutiny and evidentiary limits for content-based restrictions)
- Osborne v. Ohio, 495 U.S. 103 (narrowing constructions; lewd exhibition standard)
- United States v. X-Citement Video, Inc., 513 U.S. 64 (presumption of scienter applied to attendant circumstances)
- Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) (visual material is inherently expressive)
- Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (content-based restrictions and strict-scrutiny framework)
- United States v. Knox, 977 F.2d 815 (3d Cir. 1992) (lascivious focus on clothed genitals can be intrinsically related to exploitation)