Sunday, September 1, 2013

Texas State Appellate Court Finds "Improper Photography" Statute Unconstitutional

630px-PSM_V21_D054_The_binocular_cameraCan a state criminalize "improper" photography?

Texas Penal Code 21.15 seeks to do just that, providing:

A person commits an offense if the person: (1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room: (A) without the other person’s consent; and (B) with intent to arouse or gratify the sexual desire of any person.

While Texas courts had previously upheld the statute, the Texas Fourth Circuit Court of Appeals, sitting in San Antonio, ruled on a pretrial writ of habeas corpus that the statute was unconstitutional in its opinion in Ex Parte Thompson.

In its relatively brief discussion, the unanimous three judge panel held that "the statute not only restricts an individual’s right to photograph, a form of speech protected by the First Amendment, but the statute also restricts a person’s thoughts, which the U.S. Supreme Court has held is 'wholly inconsistent with the philosophy of the First Amendment.'"  [citations omitted]. 

The court, however, rejected the argument that the statute was a content restriction, instead finding that it was "imposing time, place, and manner restrictions that are unrelated to content," and thus merited "intermediate scrutiny" under United States v. O’Brien.  While O'Brien - - - the draft card burning case - - - is generally thought to be applicable to expressive conduct, the panel here uses O'Brien's factors to ultimately conclude that the statute is facially overbroad "reaching a substantial amount of constitutionally protected conduct," and relying in part on the Supreme Court's 2010 opinion in United States v. Stevens, declaring the federal "crush porn" statute unconstitutional.

The opinion's analysis and use of precedent might trouble some First Amendment scholars and it will be interesting to watch whether the case reaches the Texas Court of Criminal Appeals [thanks to commentator for clarifying Texas court system].


[image via]

Cases and Case Materials, Courts and Judging, First Amendment, Opinion Analysis, Sexuality, Speech | Permalink

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Uh, this case actually goes to the Texas Court of Criminal Appeals - they're split in Texas. Supreme Court does only civil.

Posted by: Gritsforbreakfast | Sep 2, 2013 7:11:43 AM

It makes no sense to recognize that photography is a form of speech, and then to apply the "symbolic conduct" analysis of O'Brien. If content of speech is not being regulated, then the regulation is a time, place and manner restriction, as the court also apparently concluded. O'Brien asks whether the regulation of conduct which incidentally burdens speech is intended by the legislature primarily to address the conduct element or the expressive element. To apply that analysis to speech is incoherent; although conduct-targeted O'Brien and time, place and manner regulations both receive mid-level constitutional scrutiny, conflating regulation of symbolic conduct and regulation of speech does not indicate that the court has a good grasp of freedom of speech principles.

As to whether regulation of the display of a photograph "with intent to arouse . . . sexual desire" is content neutral, I suppose that is possible, on the analysis that any photograph, regardless of content, can be intended to arouse sexual desire. On that interpretation, the Texas statute does appear to punish thoughts, akin to criminalizing "speech uttered with intent to arouse sexual desire." That should be flatly unconstitutional, shouldn't it?

Posted by: Jeffrey G. Purvis | Sep 2, 2013 10:55:06 AM

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