Fact or Phallus?

Abstract

As societal reliance on digital and online communication continues to grow, courts are grappling with how best to provide legal recourse for novel, technology-related issues while still protecting American citizens’ First Amendment right to free speech. The State of Texas recently enacted Penal Code section 21.19, which criminalizes the transmission of unsolicited sexually explicit images to another person—or as it is commonly known, “cyber-flashing.” Cyber-flashing occurs through digital and online platforms, including text messages, apps, and social media. Section 21.19 is one of the first statutes of its kind in the United States. In the age of “dick pics,” this law has emerged at a crucial time in an evolving social and technological world. While section 21.19 has ample support, critics argue that it is ultimately unconstitutional. Proponents argue that it combats sexual harassment and the “growing problem of aggressive and unsolicited sexual communication online.” Additionally, many victims view cyber-flashing as a threatening and intimidating form of sexual violence. This fact is legally significant, in that the First Amendment’s true threat doctrine allows governmental regulation of speech that places individuals in fear of harm. This Article argues that section 21.19 is constitutional under the true threat doctrine and, alternatively, proposes a possible solution for Texas to ensure the statute’s compliance with First Amendment free speech protections.