As I mentioned last year, a Texas appellate court upheld this statute against a First Amendment challenge. This past Friday, though, a different Texas appellate court struck the statute down (Ex parte Thompson (Tex. Ct. App. Aug. 30, 2013)). The court reasoned:
1. Photographing (at least in public places) is presumptively First-Amendment-protected activity. This includes photographing people who are in such public places, with or without their consent.
2. Prohibiting such otherwise constitutionally protected photography based on the photographer’s “intent to arouse or gratify the sexual desire of any person” is unconstitutional. “[T]he statute requires law enforcement officers to make subjective judgments regarding the photographer’s intent…. [I]nnocent photographers run the risk of being charged with violating the statute because the government is attempting to regulate thought, a freedom protected by the First Amendment.”
3. More broadly, the court concluded that “It is not enough to say a statute is not overbroad simply because it is directed at conduct with intent, if the intent portion of the statute regulates freedoms protected by the First Amendment.”
I’m not sure the reasoning is as clear as it could be, but the result and the general approach seem right to me. Thanks to How Appealing for the pointer.