Ex parte Fujisaka (472 S.W.3d 792, 2015)

OPINION

Opinion by Justice Fillmore

Jeffrey Wayne Fujisaka is charged with four counts of knowingly inducing E.D., a child under eighteen years old, to engage in sexual conduct or a sexual performance consisting of touching her genitals with her hand. See Tex. Penal Code Ann. § 43.25(b) (West 2011). Appellant filed a pretrial application for writ of habeas corpus challenging the constitutionality of section 43.25(b). The trial court denied relief on appellant’s application. In his sole issue on appeal, appellant contends section 43.25 is facially unconstitutional under the First Amendment to the United States Constitution. We affirm.

Standard of Review and Applicable Law

A defendant may file a pretrial application for a writ of habeas corpus to raise a facial challenge to the constitutionality of a statute that defines the offense charged. Ex parte Thompson, 442 S.W.3d 325, 333 (Tex.Crim.App.2014). Whether a statute is facially unconstitutional is a question of law subject to de novo review. Ex parte Lo, 424 S.W.3d 10, 14 (Tex.Crim.App.2013). We make every reasonable presumption in favor of the statute’s constitutionality, unless the contraiy is clearly shown. Peraza v. State, 467 S.W.3d 508, 514(Tex.Crim.App.2015). The challenger normally bears the burden to establish the statute is unconstitutional. Lo, 424 S.W.3d at 15.

A facial challenge attacks the statute itself rather than the statute’s application to the defendant. Peraza, 467 S.W.3d at 514. Ordinarily, to mount a successful facial challenge, the challenger must establish that no set of circumstances exists under which the statute would be valid or that the statute lacks any plainly legitímate sweep. Id.; see also United States v. Stevens, 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010), However, in the case of statutes that encroach upon activity protected by the First Amendment, the challenger may also bring a “substantial overbreadth” challenge. Under such a facial challenge, a statute may be invalidated as overbroad if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Stevens, 559 U.S. at 473, 130 S.Ct. 1577; see also Ashcroft v. Free Speech Coal., 535 U.S. 234, 255, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (overbreadth doctrine prohibits government from banning unprotected speech if substantial amount of protected speech prohibited or chilled- in process). This type of facial challenge may be made when a statute restricts or punishes speech based upon its content. Lo, 424 S.W.3d at 15.

A law is “content-based” if it distinguishes between favored and disfavored speech on the basis of the views expressed or if it is necessary to review the content of the speech in order to determine whether the speaker violated the law. Thompson, 442 S.W.3d at 345. A content-based regulation that distinguishes favored from disfavored, speech based on the views expressed is presumptively invalid, and the government bears the burden to rebut the presumption. Lo, 424 S.W.3d at 15. We apply the “most exacting scrutiny to regulations that suppress, disadvantage, or impose different burdens on speech because of its content.” Id. To satisfy a strict scrutiny review, a statute that regulates speech must be necessary to serve a compelling state interest and be narrowly drawn. Id. To be considered narrowly drawn, a law must employ the least restrictive means to achieve its goal and there must be a close nexus between the state’s compelling interest and the restriction. Id. The statute does not survive strict scrutiny review if there is a less restrictive means of meeting the state’s compelling interest that would be at least as effective as' the statute under review. Id. at 15-16. However, a statute may not be' held overbroad merely because it is possible to conceive of some impermissible applications. United States v. Williams, 553 U.S. 285, 303, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008).

Analysis

The first step in an over-breadth analysis is to determine whether the statute reaches a substantial amount of activity protected by the First Amendment. City of Houston, Tex. v. Hill, 482 U.S. 451, 458-59, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). If the law does hot reach a substantial amount of constitutionally protected activity, then the over-breadth challenge fails. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). We begin our analysis by examining what the statute covers. Stevens, 559 U.S. at 474, 130 S.Ct. 1577.

Section 43.25(b), entitled “Sexual Performance by a Child,” states:

A person commits an offense if, knowing the character and content thereof, he employs, authorizes, or induces a child younger than 18 years of age to. engage in sexual conduct or a-sexual performance. A parent or legal guardian or custodian of a child younger than 18 years of age commits an offense if he consents to the participation by the child in a sexual performance.

Tex. Penal Code Ann. § 43.25(b). ■ A “sexual performance” under the statute means “any performance or part thereof that includes sexual conduct by a child younger than 18 years of age.” Id. § 43.25(a)(1). A “performance” means “any play, motion picture, photograph, dance, or other visual representation that can be exhibited before an audience "of one or more persons.” Id. § 43.25(a)(3). “Sexual conduct,” within the meaning of the statute, is “sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic, abuse, or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.” Id. § 43.25(a)(2),

Appellant contends section 43.25(b) is overbroad, and thus facially unconstitutional under the First Amendment, because it regulates the content of speech, should be subjected to strict scrutiny, and cannot survive.strict scrutiny review because it was not narrowly drawn to achieve the State’s compelling interest to protect minors from sexual abuse. In pressing his facial challenge, appellant does not assert that “employing” a child, to engage in sexual conduct or a sexual performance constitutes any constitutionally protected activity. Instead, he argues the statute’s prohibition on “authorizing” and “inducing” a child to engage in sexual conduct or a sexual performance violates the First Amendment because it prohibits a person from authorizing or persuading another to engage in lawful activity.

A statute that regulates only conduct, not speech or any other expressive activity which is protected by free "speech guarantees, does not trigger any protection under the First Amendment. See Arnold v. State, 853 S.W.2d 543, 545-46 (Tex.Crim.App.1993); see also Lo, 424 S.W.3d at 16-17 (noting statutes prohibiting online solicitation of minor routinely held constitutional because gravamen of offense is conduct of requesting minor to engage in illegal sexual acts). As the Supreme Court has explained;

Facial overbreadth ... attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from “puré speech” toward conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal "laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect— at best a prediction — cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. ■ To put the matter another way, particularly where conduct and not merely speech is- involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.

Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (citations omitted).

The State contends section 43.25(b) regulates only conduct and does not implicate First Amendment rights at all. Conversely, appellant argues the conduct of “authorizing” and “inducing” "a child to engage in sexual conduct or a sexual performance is usually accompanied by speech, one may prove inducement from “persuasion” alone, and thus “a large part” of what section .43.25 regulates is, in fact, speech. Appellant does not cite any authority holding that authorizing or inducing a child to engage in sexual conduct or a sexual performance constitutes a form of constitutionally protected speech, but he attempts to support his position by analogy. See Hill, 482 U.S. at 466, 107 S.Ct. 2502 (ordinance making it unlawful to “interrupt” police officers- in performance of their duties unconstitutional because it criminalized substantial amount of constitutionally protected speech); Loper v. N.Y.C. Police Dept., 999 F.2d 699, 704-06 (2d Cir.1993) (statute prohibiting loitering in public place for purpose of “begging” violates First Amendment because speech frequently accompanies begging); State v. Melchert-Dinkel, 844 N.W.2d 13, 23-24 (Minn.2014) (portion of .statute prohibiting advising or “encouraging” another to commit suicide violated First Amendment). Appellant contends “inducing” a child to engage in sexual conduct or a sexual performance involves speech as much as “interrupting” a police officer, “begging’! in a public place, or “encouraging” another to commit, suicide.

Neither “authorizes” nor “induces” is defined in the penal code. In the absence of statutory definitions, we give words their commonly used meanings. See Tex. Gov’t Code Ann. § 311.011(a) (West 2013). In its common meaning, one “authorizes” conduct by empowering the actor or affording a right to act. In re Hecht, 213 S.W.3d 547, 567 (Tex.Spec.Ct.Rev.2006). The term may also be defined as “to give legal authority; to empower ... to formally approve, to sanction.” Id. (quoting Black’s Law DictionaRy 143 *(8th ed. 2004)). The definition necessitates “affirmative actions on the part of the authorizer.” Id. To “induce” means “to move and lead by persuasion or influence.” Bell v. State, 326 S.W.3d 716, 720 (Tex.App.-Dallas 2010, pet. dism’d, untimely filed) (citing Webstee’s New International Dictionary 1154 (3d ed. 1981)). “Inducement” means “[t]he- act- or process of enticing or persuading «another to take á certain course of action.” Scott v. State, 173 S.W.3d 856, 862 (Tex.App.-Texarkana 2005) (quoting Black’s Law Dictionary 790 (8th ed.)), aff'd in part, rev’d in part, 235 S.W.3d 255 (Tex.Crim.App.2007). It also means “to lead or move by persuasion or influence, as to .some action or state of mind ... to bring about, produce, cause.” Scott, 173 S.W.3d at 862 (quoting Random House Dictionary of the English Language 975 (2d ed. 1987)).

“Employing,” “authorizing,” or “inducing” someone heed not involve any speech at all. See Dornbusch v. State, 156 S.W.3d 859, 867 (Tex.App.-Corpus Christi 2005, pet. ref'd) (“[N]owhere in [section 43.25(b)], nor in the common understanding of the word, is there any requirement that inducement be verbal and explicit.”). It is a well-established tenet of constitutional law that the mere occurrence of some verbal expression in connection with one’s conduct does not trigger the First Amendment’s speech protections. “We cannot accept the view that an apparently limitless variety of conduct -can be labeled ‘speech’ whenever the person engaging in the conduct-intends thereby to express an idea.” United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); see also City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) (“It is possible to find some kernel of expression in almost every activity a person undertakes — for example, walking down the street or meeting one’s friends at a shopping mall — but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.”).

Further, most utterances that might result from efforts to “employ,” “authorize,” or “induce” a child to engage in sexual conduct or a sexual performance would be part of an illegal transaction and would not enjoy the protection of the First Amendment. See Williams, 553 U.S. at 297, 128 S.Ct. 1830 (speech generated in connection with illegal transaction enjoys no First Amendment protection); see also Lo, 424 S.W.3d at 16-17 (concluding, in dicta, that portion of online solicitation of a minor act criminalizing use of electronic communications to solicit a minor to engage in certain sexual behavior is constitutional because soliciting minor to engage in sexual relations would be illegal transaction not protected by First Amendment, and thus section of statute focused on con-duet of requesting minor to engage in illegal sexual acts rather than speech); United States v. Gagliardi, 506 F.3d 140, 147-48 (2d Cir.2007) (federal statute that makes it an offense to knowingly persuade, induce, or entice a minor to engage in sexual activity of criminal nature not overbroad because statute punishes act of enticing or attempting to entiee minor rather than implicating speech). Most of the conceivable transactions within the scope of section 43.25(b) are criminal acts proscribed by other penal code provisions. See, e.g., Tex. Penal Code Ann. §§ 21.11 (indecency with a child), 22.011(a)(2) (sexual assaults against children), 33.021(c) (online solicitation of a minor) (West 2011), §§ 15.031(b) (criminal solicitation of a minor), 20A.02(a)(7) (trafficking a child to participate in sexual offenses), 21.02 (continuous sexual abuse of a child), 21.12 (improper relationship between educator and student), 22.021(a)(1)(B) (aggravated sexual assault of a child), 43.02-.05 (prostitution offenses), 43.251 (employment harmful to children), and 43.26 (possession or promotion of child pornography) (West Supp. 2014).

Because section 43.25(b) regulates activities that are otherwise illegal in the overwhelming majority of circumstances falling within the statute’s scope, it differs from the authorities appellant relies upon to argue that the proscribed activity constitutes “speech.” The “interrupting,” “begging,” and “encouraging” prohibited in Hill, Loper, and Melcherh-Dinkel not only regulated what would generally otherwise be legal activities, but also potentially punished or deterred certain constitutionally protected speech. As the court pointed out in Hill, the portions of the city ordinance at issue in that case making it an offense to assault or strike a police officer would be preempted by state law leaving only “verbal interruptions” of police as the regulated activity. See Hill, 482 U.S. at 460-61, 107 S.Ct. 2502. Thus, the Supreme Court concluded the ordinance “deals not with core criminal conduct, but with speech.” Id. at 460, 107 S.Ct. 2502. The court in Loper concluded that a prohibition on “begging” “prohibits speech as well as conduct of a communicative nature.” Loper, 999 F.2d at 702. The court opined that while begging could be restricted in certain locations, such as the subway system, “[t]he sidewalks of the City of New York fall into the category of public property traditionally held open to the public for expressive activity.” Id. at 702-04. Likewise, in Melchert-Dinkel, the Minnesota statute prohibiting a person from “advising” or “encouraging” another to commit suicide involves a substantial amount of speech. As stated in the opinion:

the common definitions of “advise” and “encourage” broadly include speech that provides support or rallies courage.... Furthermore, the “advise[]” and “encourage[ ]” prohibitions are broad enough to permit the State to prosecute general discussions of suicide with specific individuals or groups. Speech in support of suicide, however distasteful, is an expression of a viewpoint on a matter of public concern....

See Melchert-Dinkel, 844 N.W.2d at 23-24.

In an attempt to show the statute is overbroad, appellant focuses upon instances in which speech associated with purportedly lawful activity may be improperly penalized and offers a total of seven examples (one being his own alleged circumstances) to demonstrate the statute’s invasion of constitutionally protected speech. One of appellant’s examples, first delivered in his reply brief, involving a seventeen-year-old boy encouraging another seventeen-year-old boy to have sex with a thirty-year-old woman, would be. covered by an affirmative defense incorporated in the statute. See Tex. Penal Code Ann. § 43.25(f)(3) (West 2011) (providing an affirmative defense if the defendant is not more than two years older than the child). The other six examples fall into two categories: parents “authorizing” their.teenage children.to have sexual relations- by approving teen sexual activity, providing birth control, and indicating a preference that the child rely upon masturbation rather than having sexual relationships with other teens; and adults inducing sexual conduct or sexual performances from seventeen-year-old children with whom the adults may have consensual sexual relations under Texas law. To the extent the statute restricts any constitutionally protected speech, we agree with appellant that the statute is a “content-based” restriction and, therefore, subject to strict scrutiny. Thompson, 442 S.W.3d at 345.

We are cognizant that parents have broad authority under the Constitution to raise their children free of excessive interference from the State. See Troxel v. Granville, 530 U.S. 57, 65-66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (recognizing the Due Process Clause of the Fourteenth Amendment “protects the fundamental right of pardnts to make decisions concerning the care, custody, and control of their children”). The precise scope of a parent’s right to counsel his or her child on matters of sexuality is not before this Court, and we express no opinion on thé subject. We note only that to the extent a parent knowingly employs, authorizes, or induces his or her child under the age of seventeen years to engage in sexual conduct or a sexual performance that would constitute a violation of a provision of the Texas Penal Code, any speech connected with that activity would not enjoy the protection of the First Amendment. See Williams, 553 U.S. at 297, 128 5.Ct. 1830.

Accordingly, regardless of whether the defendant is a parent, the only applications of section 43.25(b) that could conceivably pose a danger of regulating or chilling constitutionally protected speech involve persons “authorizing” or “inducing” a seventeen-year-old child to engage in sexual conduct or a sexual performance. Appellant contends that because it is legal for an adult to have consensual sexual relations with a seventeen-year-old child without violating the Texas Penal Code, section 43.25(b) is overbroad in criminalizing the inducement of legal sexual conduct or sexual performance by such a child. Appellant also suggests that section 43.25(b) is not narrowly tailored precisely because of the anomaly between the provisions in Title Five of the penal code setting the age of consent in Texas at seventeen years and article 43.25(b) setting the age below which a child may not be authorized or induced to engage in sexual conduct or a sexual performance at eighteen years. Compare Tex. Penal Code Ann. §§ 21.11(a), 22.011(