Texas Stamp

Ex parte Lowry, Michael

PD-0887-21 03/02/2022

1. “Did the court of appeals err in finding that Texas Penal Code Section 43.262 is a content-based regulation of protected speech that fails strict scrutiny?”

2. “Did the court of appeals err in considering Texas Penal Code Section 43.262’s constitutionality under the First Amendment overbreadth doctrine?”

3. “Did the court of appeals err in its overbreadth analysis of Texas Penal Code Section 43.262?”

Tex. Penal Code § 43.262 prohibits possessing or promoting lewd visual material that depicts a child.  It states:

A person commits an offense if the person knowingly possesses, accesses with intent to view, or promotes visual material that:

(1) depicts the lewd exhibition of the genitals or pubic area of . . . a clothed child who is younger than 18 years of age at the time the visual material was created;

(2) appeals to the prurient interest in sex; and

(3) has no serious literary, artistic, political, or scientific value.

 Lowry was charged with knowingly possessing a photograph that depicted the lewd exhibition of the pubic area of a clothed child under 18.   Lowry sought pretrial habeas relief, arguing that § 43.262 is facially unconstitutional because it regulates a substantial amount of protected speech (i.e., non-obscene and non-child pornography) and is unconstitutionally vague.  The trial court denied relief.

 The court of appeals reversed.   First, it rejected the State’s argument that § 43.262 prohibits speech unprotected under the First Amendment.  It concluded that § 43.262 does not prohibit obscenity because it doesn’t require patently offensive conduct.  Nor does it criminalize child pornography because it includes the pubic area of a clothed child.   The court then concluded that § 43.262 is content-based and does not satisfy the strict-scrutiny standard required to overcome its presumptive invalidity.   The court reasoned no legislative history exists to show that child erotica, as opposed to child pornography, “is an actual problem causing the sexual abuse or exploitation of children, thus necessitating the prohibition.”  Finally, the court held that § 43.262 is overly broad because it applies to any person, including a victim who possesses their personally created visual material, and its exemption for material with serious literary, artistic, or scientific value does little when a substantial amount of speech is chilled.   

 The State argues that § 43.262 is an expansion of previously defined child pornography that was intended to “close a loophole of child sexual exploitation and abuse left open by the state’s existing criminal statutes.”  The State also contends that § 43.262 is narrowly tailored to the State’s compelling interest to protect against the exploitation and abuse of children because it requires material to appeal to the prurient interest in sex and lack serious literary, artistic, or scientific value.  Material that fits within these parameters is necessarily exploitative or abusive.  As to overbreadth, the State claims that Lowry’s arguments in the trial court did not preserve his claim.  Lowry did not meet his burden by specifically complaining about how § 43.262 prohibits a substantial amount of protected speech in relation to its legitimate sweep.  On the merits, the State argues that the lower court failed to consider the proper scope of § 43.262’s legitimate applications.   

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