Constitutional sexting defense saves teacher from prosecution

Prosecutors in Texas dismissed charges last week against a teacher caught exchanging explicit text messages with a middle school student, claiming the texts were constitutionally protected.

Sean Williams, a middle school teacher in Everman, Texas, exchanged 688 text messages with a student over six days in the fall of 2012. He was 30, she was 13, and many of the texts were sexually explicit, including a waist-up photo of the teenager in just her bra. Police arrested Williams and charged him with having an improper relationship between an educator and student, accordingto the Fort Worth Star-Telegram. But on Feb. 10, Tarrant County prosecutors dismissed the case, citing a higher court ruling last fall that concluded such behavior is constitutionally protected.

In the prior case, authorities arrested John Lo, a choir director at the middle school and high school in Cleveland, Texas, for allegedly sending inappropriate texts to a student. They prosecuted him under a 2005 Texas statute that made sexually explicit online communication between an adult and minor illegal. But in October 2013, the Texas Court of Criminal Appeals ruled unanimously that Section 33.021(b) of the statue, which addresses electronic messaging, violates the First Amendment right to free speech.

“Free speech is an unsanitary business,” legal expert Gerald Treece told Fox News. He explained that the 2005 law is too broad, and did not define what can and cannot be said through texting and online messaging. “It prohibits any sexual speech out of anything, from the Bible to Shakespeare.”

The court noted that “sexual expression which is indecent but not obscene is protected by the First Amendment” including “dirty talk” found in films and television shows, such as Basic Instinct and The Tutors, and books like 50 Shades of Grey and Shakespeare’s Troilus and Cressida. The justices also used Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl and Miley Cyrus’s “twerking” during the 2013 MTV Video Music Awards as examples of potential offenses under the law as it is currently written.

“In sum, everything that Section 33.021(b) prohibits and punishes is speech, and is either already prohibited by other statutes (such as obscenity, distributing harmful material to minors, solicitation of a minor, or child pornography) or is constitutionally protected,” the court said.

Legal experts say the dismissal of William’s case could throw similar cases into a legal black hole and force state legislators to rewrite the law, according to the Star-Telegram. In addition, those convicted under the 2005 statue could seek redress.

“You can talk trash, you can talk disgusting things, but if you’re not soliciting someone to meet you or engage in an act, then it’s protected by the First Amendment,” Williams’ defense attorney Jim Shaw told Fox News. However, he also conceded that the current law is “morally wrong.”

State Rep. Bill Zedler, R-Arlington, told the Star-Telegram that the 2005 statute was originally proposed to keep children from being groomed by sexual predators. Texas parents now worry the ruling gives predators a green light to cross the line.

“The purpose of the First Amendment was to allow political dissent, not to allow adults to be vulgar with minors,” Zedler said.