Texas Anti-Sexting Law Raises Constitutional Concerns


Texas' efforts to become one of the first states to criminally punish "sexting" may be short-lived, according to legal experts. Earlier this year, the Legislature passed and Gov. Greg Abbott signed House Bill 2789, which makes it a Class C misdemeanor to electronically transmit sexually explicit material without the recipient's consent. The law applies to texts and e-mails, as well as dating apps and social media. Violations are punishable by a maximum $500 fine.

HB 2789 is set to take effect Sept. 1, but it may not last due to legal challenges. "The law was designed to stop men from sending photographs of their genitalia to women they met on dating apps, but it was drafted way too broad to cover just that," says Chris Tritico, KTRH Legal Expert and Houston-based attorney. "It covers almost any kind of picture or video a person could send...if you send one to your doctor (for medical purposes) it could be subject to the law...and secondly, I think it does violate the First Amendment."

The new law could face the same fate as a similar Texas statute passed in 2015 that outlawed so-called "revenge porn." That law was struck down last year by a Texas court on First Amendment grounds, and is now pending before the Texas Court of Criminal Appeals.

Tritico believes the writing is already on the wall for where this is going. "A lot of these laws banning digital photography and sending of digital pictures have been struck down by the courts as a violation of the First Amendment," he tells KTRH. "In this case, the bill that was passed simply is drafted in a fashion that is so broad, that in my opinion it is going to be struck down pretty quickly on two grounds---vagueness and overbreadth."


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