Texas Ban on Photographing People Without Their Consent “With Intent to Arouse or Gratify the Sexual Desire of Any Person”

Texas Penal Code § 21.15(b)(1) makes it a crime to photograph someone “without the person’s consent” and “with intent to arouse or gratify the sexual desire of any person.” (A separate provision applies to photographing people in bathrooms or private dressing rooms.) In Ex parte Nyabwa (Tex. Ct. App. Dec. 13, 2011), a Texas appellate court upheld the statute reasoning that “[p]hotography” — apparently including the taking of photographs — “is a form of speech normally protected by the First Amendment,” but

The State argues that the statute is not a regulation of speech at all, but instead is a regulation of the photographer’s or videographer’s intent. Discussing a similar First-Amendment issue, the Court of Criminal Appeals concluded that a telephone-harassment statute does not implicate the free speech guarantee — even though the conduct may include spoken words — where the statute focuses on the actor’s intent to inflict emotional distress and not to legitimately communicate ideas, opinions or information. Scott, 322 S.W.3d at 669–70. In much the same way, Texas Penal Code section 21.15(b) regulates a person’s intent in creating a visual record and not the contents of the record itself. We thus conclude that the statute is not a regulation of speech and does not violate the First Amendment.

Today, the Texas Court of Criminal Appeals refused to review the case (though it did withdraw the lower court’s attempt to revise the opinion, because those revisions were seen as untimely). Two judges would have taken the case, and one wrote a dissent from the denial of review, arguing:

This statute is virtually unbounded in its potential application. The photographing of anyone, anywhere, and under any circumstances can be an offense so long as the photograph was taken without consent and the actor harbored the requisite sexual mental state. Photography has been recognized as a form of expression protected by the First Amendment. While conceding that, the court of appeals nevertheless concluded that the statute “regulates a person’s intent in creating a visual record and not the contents of the record itself.”

But that conclusion does not necessarily exempt the statute from the First Amendment’s protections. The Supreme Court has recognized that the First Amendment includes, as a component of freedom of expression, the protection of “freedom of thought,” including the freedom to think sexual thoughts. It is not enough to say that the statute is directed only at intent, if the intent consists of thought that is protected by the First Amendment. There are limits to the freedom of thought protected by the First Amendment: the First Amendment does not, for example, protect the right to privately possess child pornography. But in the statute before us, the person photographed could be a fully-clothed adult walking down a public street. The breadth of this statute is breathtaking, and the type of intent that it regulates is not inherently exempt from First Amendment protection.

That sounds right to me. For some thoughts about the dangers of purpose tests in First Amendment law, see pp. 271-284 of this article.

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