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Grey Matters: A Closer Look at Pornography Laws in Texas

The Law Firm of Andrea M. Kolski
Browsing the Internet Late at Night

As Americans, we often take our Constitutional rights for granted until a situation occurs that forces us to better understand those rights. Pornography and obscenity laws are usually grouped within free speech but are sources of much controversy. Most people with a smart phone, laptop, or wired device assume they know what is illegal to view on the internet and are understandably shocked when police officers knock at the door. So, to avoid legal trouble, it’s important for everyone to fully understand pornography laws and where the line between legal and illegal activity is drawn.

Free speech and freedom of expression are fundamental rights protected under our Constitution. However, the courts regularly hear cases challenging the definitions of these rights. These court interpretations become more significant as communications, technology, and access to information continue rapidly evolve in our wired society.

Pornography and obscenity has been ruled by the Supreme Court as protected free speech. While many groups and individuals may object to such material, the courts have deemed certain types pf pornography as protected free speech. However, not all offensive material fall under protected free speech. The courts have declared child pornography, revenge porn, and in some cases, distribution of certain pornography as illegal.

Even though the courts have ruled on countless cases, the law is far from settled. There remains much controversy surrounding what defines protected free speech. Texas is notoriously tough on crime and has the highest conviction rates in the US. Combined with the highest incarceration rate in the nation, Texas courts are a brutally tough place to defend yourself against accusations of possession of pornography, online solicitation, possession of child pornography, or other Texas pornography laws. If convicted, defendants face stiff penalties including prison time, expensive fines, and other devastating legal consequences.

With so many new laws and court interpretations, it’s easy to see how unsuspecting people are finding themselves in the crosshairs of law enforcement and facing criminal charges.

The confusion around Texas pornography and obscenity laws is likely to continue for the foreseeable future. Meanwhile, law enforcement will continue making arrests and defendants will need strong legal representation to insure a proper defense. This is NOT a time to gamble with the law.

If you find yourself or someone you love charged with a pornography crime, it’s important to know your rights. In this article, we shed light on the new Texas pornography laws, how to steer clear of trouble, and what to do if arrested.

Texas porn Laws

Recently enacted Texas erotica laws, in essence, expand the definition of child pornography. This has led to a massive increase in arrests and sting operations throughout the state.. While more arrests might make us feel safer, the reality is far more concerning. Defense attorneys and scholars argue that many people tried and convicted of these crimes are engaging in protected free speech. Innocent people are now at greater risk of being targeted by overzealous police departments all over Texas.

That isn’t all, age restrictions at exotic dance and strip clubs were recently changed from 18 to 21. While the intentions of these laws might have seemed good at first, when looked at from another angle, it might just be an unconstitutional restriction of first amendment rights.

People have the right to certain behaviors in their homes that cannot be imposed upon the public. While we may not personally approve of what people do in private — our nation’s laws are intended to protect individual freedoms and expressions regardless of how we may feel about them.

Legislators and public officials often pass stricter laws with the intention of protecting the public good or the innocent among us such as children, the elderly, or other at risk groups. On the surface, that sounds like a noble cause most of us would support. Unfortunately, these laws come with severe punishments that can ruin lives and give tremendous power to the police and criminal court system. Like any sweeping legislation, the devil is in the details. For example, how do you determine the age of someone on an undated video? How do you charge an underage person who makes videos or images of themselves? How do you charge someone who unknowingly viewed material with a minor in it? These are just a few of the many gray areas that are often left up to interpretation by police officers or jurisdictions. There is no one size fits all when it comes to interpreting these laws and that’s a serious problem for ALL of us.

Porn and obscenity can have different meanings to different people. One person’s “obscenity” is another persons artwork or creativity. As a society, we certainly need to protect our children from exploitation and exposure to harmful material. But how we do this without damaging our own freedoms is a tricky line to walk. It’s obvious that in the age of the internet, the scope and confusion around these issues has only grown.

Legal scholars raise concerns over the Texas laws overly broad, general, and dated language. In its definition of “pornography” and “obscene content”, it seems to include, but not clearly define pornographic content that one can regularly access on the internet. It’s vague and leaves a lot of room for interpretation. This is problematic for a legal system intended to treat everyone equal under the law.

As for minors, the reality of todays connected society means an endless array of gateways into potential trouble. Both as users and producers of content, young people can find themselves in trouble before they know it. It’s common for people under the age of 18 to post controversial content on the internet. But does that make these minors distributors of illegal pornography? And does that make someone who has this content in their phones guilty as well?

Profit, Content, And Confusion

As you can see, these laws create more questions than they answer. Everyday we see more apps, websites, and technology that accelerate the confusion and open more pathways to potentially illegal behavior. In recent years we’ve seen a massive influx of controversial content by young people who quickly embrace new platforms like TikTok, Instagram, or Snapchat. the laws simply cannot keep up with the speed of a private sector determined to make a profit without regard for the long-term consequences.

For years, we’ve trusted social media companies, internet providers, and corporations to protect their users, especially vulnerable children and minors. But the continued monetization of content for profit makes their task extremely difficult. Some lawmakers argue that allowing these companies to self-regulate is akin to trusting the fox to watch the henhouse. These officials don’t believe the profit-driven companies will do enough.

User driven content, especially video, is pushed by every major platform. Facebook, YouTube, Instagram, TikTok, and thousands of other platforms offer a distribution network for their users to produce and consume content from other users. Users may also monetize this content themselves. The explosion of erotic content platforms such as PornHub has only accelerated the amount of controversial material produced by users.

OnlyFans is yet another user-driven content platform that allows private individuals to sell access to private content with very little restriction. A camera phone and an internet connection are all it takes for someone to start making videos of themselves for paying subscribers thousands of miles away.

It’s clear that lawmakers have their hands full trying to protect our children and not infringe on our rights. Explicit or sexual material involving minors is illegal but with so much confusion and ways to access content, it’s easy to see how an innocent person could find themselves on the wrong side of the law.

Even if one believes that there’s something morally wrong with this content, it’s hard to argue that it’s quite bad as the term child pornography. When someone says the term child pornography, the worst thoughts come to mind. Does that really connect with content that a minor might post of themselves on the internet?

Those who believe that there should be some law restricting this should understand that the crime attached should most likely should not be called child pornography.

An Uncertain Future

As stated earlier, we’ve got a lot of work to do with our current set of laws around pornography and obscenity. State laws — such as the Texas — could be overturned by federal cases that prove them unconstitutional. Some cases have already been dropped due to unconstitutionality.

But if recent history is any indicator, it could be a long time before we have any clear direction with the law. In the meantime, police will continue to charge ahead in enforcing the current laws, regardless of how vague they may seem. And the courts and jails will continue to fill up with defendants charged with crimes under these controversial laws.

For anyone facing charges related to possession of pornography, online solicitation, or other sex crimes, don’t expect a Texas court to sympathize with you. Having an experienced, aggressive criminal defense lawyer is your best move to protect your rights. It’s critical to understand your rights and if facing charges, to immediately mount a defense with experienced legal representation. Just because a law is confusing or you disagree with it doesn’t mean you can’t be charged and face serious consequences. Don’t take the law into your own hands and don’t expect the law to care about your personal feelings on this subject. Ignorance of the law is no defense. Disagreeing with a law is no defense.

Remember to use good sense whenever you use the internet or any platform such as Facebook, Instagram, TikTok, or YouTube. Never assume your activity is private or that these companies will protect you from illicit material. They all state very clearly that they are not liable for what you do or see online. You’ve got to look out for yourself, and if needed, your family.

get an experienced Attorney on your side

If you find yourself charged with any of the above crimes, you’re going to need a great criminal defense attorney. It’s a criminal defense attorney’s job to know the laws regarding pornography. You might just land yourself in more hot water if you try to navigate it yourself.

The world of the law is more complicated than it seems at first. What looks like it might just be an issue of who is or isn’t following the rules is actually a mess of interpretations, confusion, and exceptions. A lawyer will be able to map all of these out for you and draw you a followable path through the woods — who knows, they might even find that you don’t fit with any crime.

Your lawyer will be able to tell you if the crime you’re getting charged for is unconstitutional. From there, they’ll be able to walk you through a strategy to help you out.

It’s Not Your Job to Know Pornography Laws

Pornography laws — especially noware complicated. It’s impossible to memorize every letter of the law. If you find yourself on the wrong end of a pornography case, hire yourself an experienced criminal defense attorney who knows how to fight for your rights and is a firm believer in our Constitution.

If you or a loved one is facing charges and in need of a strong legal defense, contact us today.

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