Texas Obscene Display or Distribution Law – Penal Code 43.22

Obscene display or distribution in Texas refers to knowingly or intentionally distributing or displaying:

• An obscene drawing;
• An obscene photograph;
• Any other visual representation of obscenity; or
• Other obscene material.

The individual who distributes or displays the obscene material is reckless about whether another individual will be alarmed or offended by the material.

What Is Freedom of Speech?

In the United States, freedom of speech is a right that is guaranteed by the 1st Amendment to the U.S. Constitution. The 1st Amendment provides that Congress is not permitted to make laws that curtail this freedom of speech.

Examples of the significant limitations that are permitted include:

• Time, place, and manner restrictions: A government is permitted to place reasonable restrictions on the time, place, and manner in which individuals and groups are permitted to gather to engage in protected political speech;
  • Time, place, and manner restrictions are permitted because they serve the public’s competing interests in:
    • Keeping traffic flowing;
    • Preserving property;
    • Protecting the environment;
    • Other issues;
• True threats: In a legal context, a true threat is a statement directed towards a specific individual that is intended to frighten or intimidate another individual and make them believe that the individual will be seriously harmed by the speaker or by another individual who is acting on behalf of the speaker;
  • True threats are not protected by the 1st Amendment. An individual who makes a true threat may be charged with a crime, prosecuted, convicted, and punished;
• Speech that violates intellectual property laws: Pursuant to the 1st Amendment, the government has copyright and other laws that regulate the use by others of an individual’s copyrighted intellectual product;
• Libel and slander: An individual may be sued for libel or slander for making false statements about other individuals;
  • Libel is the publication of a statement about an individual that is false and causes harm to their reputation and damages. Libelous statements typically concern the following:
    • Statements regarding improper sexual conduct;
    • Statements that associate someone with a vile disease, for example, claiming that person has a sexually transmitted infection;
    • Statements that accuse the person of illegal behavior;
    • Statements that hurt someone’s livelihood; and
    • Statements that allege racial or religious bigotry;
  • Slander is similar except that the statement is made orally, not in writing;
• Child pornography: Governments have laws in place that make it a sex crime to possess, produce, or distribute child pornography;
• Fraud and other speech incident to criminal conduct: An individual may be subject to criminal prosecution by law enforcement for crimes that involve making false representations about a range of issues for criminal purposes;
  • Another category of crime that may punish speech is disturbing the peace;
• Fighting words: Fighting words are words, or speech, that are aimed at inciting imminent, lawless action on the part of those who hear them;
  • The use of fighting words may be prohibited and classified as a criminal offense;
• Obscenity: Courts have prohibited the broadcast of obscene language. Over time, safe harbor rules have been developed that allow media outlets to broadcast indecent, but not obscene, material at night from 10 p.m. to 6 a.m.
  • The FCC has not published a list of specific words that are prohibited from broadcasts made during the hours of 6 a.m. to 10 p.m.

Every state in the United States has provisions in their state constitutions that are the same or comparable to the 1st Amendment. There are some states which offer greater protection of the freedom of speech, press, and assembly than the United States Constitution.

What Is Freedom of the Press?

The 1st Amendment provides that the government is not permitted to abridge the freedom of the press. Governments at every level are prohibited from interfering with the media unless there are violations of any of the limitations discussed above.

Similar to freedom of speech, there are limitations on the freedom of the press. One ongoing conflict between the government and the press is the identification of confidential sources.

Another issue between these two entities is prior restraint. Prior restraint arises when the government attempts to prevent publication of information because it will pose some type of threat to a legitimate, vital interest of the government.

Prior restarting of a media publication by the government is possible but is extremely rare in practice. It only occurs when a newspaper publication would cause “inevitable, direct, and immediate danger to the United States.”

What Rights to Expression Do I Have?

The 1st Amendment protects individuals from government interference or restraint for most of their speech. The 1st Amendment, however, does not prohibit private entities, for example, private corporations, from limiting the speech of their employees.

The 1st Amendment is only applicable to governments and agencies of governments. Public schools are considered agencies of the government. However, they may engage in some limited forms of speech restraint that are not permitted by other government agencies, for example, in a school newspaper.

What Is Obscenity?

Obscenity is anything that is morally offensive. Examples of morally offensive material and conduct may include child pornography, prohibited sexual conduct, and public lewdness.

Obscenity is prohibited by both state laws and federal laws. For example, the State of Texas has laws against obscenity called obscene display or distribution.

What if I Did Not Mean to Display Obscene Material?

An individual who is charged with displaying obscene material is not required to intend that the material be interpreted as obscene. Instead, the individual only needs to be reckless in showing the material.

Criminal recklessness refers to what an individual was aware of at the time of the crime. An individual is reckless when they knew or should have known that their conduct would:

• Cause alarm;
• Cause harm;
• Be offensive.

If an individual has any concerns about accidentally displaying obscene material, they should consult with a local attorney in Texas.

What Is the Definition of Obscene Under Texas Law?

In the State of Texas, the term obscene refers to either material or performance that lacks political, scientific, literary, or artistic value and:

• An individual, when applying the standards of a contemporary community, would find the material offensive;
• It describes or depicts a normal or perverted act or simulated sexual act that is perceived offensive, such as sexual intercourse or sexual bestiality;
• It contains offensive descriptions or representations of:
  • Genitals;
  • Masturbation;
  • Sadism;
  • Sexual stimulation.

What Is the Punishment for Distributing or Displaying Obscene Material in Texas?

In Texas, the offense of distributing or displaying obscene material is a Class C misdemeanor. If convicted, an individual will face a $500 criminal fine.

It is important to take any criminal charge seriously, especially in Texas, due to habitual offender and three strikes laws. Pursuant to these laws, if an individual is convicted of the same criminal offense multiple times, their punishments will increase, and the offense may be elevated to a felony in certain cases.

In Texas, if an individual is convicted of three felonies, they may face harsher penalties, such as up to 25-99 years in prison.

Do I Need a Lawyer to Represent Me?

If you have been charged with distributing or displaying obscene material in Texas, it may be in your best interest to have the assistance of a Texas criminal attorney. Your lawyer will advise you regarding the laws and possible punishments.

In addition, your lawyer will represent you when you appear in court. It may be possible for your lawyer to negotiate a plea deal with the prosecution and have the punishment lowered.