Ex parte Lo (Original)Annotate this Case
Appellant was charged with the third degree felony of communicating in a sexually explicit manner with a person whom he believed to be a minor with an intent to arouse or gratify his sexual desire. He filed a pretrial application for a writ of habeas corpus alleging that this specific subsection of the felony offense of online solicitation of a minor was facially unconstitutional because: (1) it was overbroad and criminalized a wide range of speech protected by the First Amendment; (2) it was vague because the term "sexually explicit" communications that "relate to" sexual conduct chills the exercise of free-speech by causing citizens to steer wide of the uncertain boundaries between permitted and prohibited speech; and (3) it violated the Dormant Commerce Clause. The trial judge denied relief, and the court of appeals affirmed. The Supreme Court granted discretionary review to determine, as a matter of first impression, whether Section 33.021(b) was s facially unconstitutional. The Court concluded the court of appeals used the wrong standard of review for addressing constitutional challenges to a penal statute that restricts speech based on its content, therefore it reached the wrong conclusion. Applying the constitutionally required presumption that "content-based regulations [of speech] are presumptively invalid" and subject to strict scrutiny, the Supreme Court concluded that Section 33.021(b) of the Texas Penal Code was overbroad because it prohibited a wide array of constitutionally protected speech and was not narrowly drawn to achieve only the legitimate objective of protecting children from sexual abuse. The Court did not address whether the provision was also unconstitutionally vague or violated the Dormant Commerce Clause. The Court of Appeals’ decision was reversed and the case remanded to the trial court to dismiss the indictment.