It is no longer a crime in Texas to take “upskirt” or “downblouse” photographs. The Court of Criminal Appeals in Texas voted 8-to-1 holding a portion of the improper photography statute in Texas unconstitutional.
If you will remember, we covered the upskirting issue in our companion blog, Texas Evidence, in March of this year after Massachusetts ruled that it was not illegal to secretly photograph under a person’s clothing.
Texas Penal Code Section 21.15 provides, in pertinent part,
…a person commits an offense if the person: (1) Photographs or 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.”
As we pointed out in March, the Texas statute appeared to be overbroad. The Court of Criminal Appeals in Ex parte Thompson, PD-1371-13, 2014 WL 4627231 (Tex. Crim. App. Sept. 17, 2014) ruled that the statute violated a person’s freedom of speech to the extent that it restricted their ability to photograph or make video recordings.
The First Amendment prohibits laws that limit a person’s freedom of speech. Prosecutors argued that making a recording or taking a photograph is not something that possesses “communicative elements that bring the First Amendment into play.” The court pointed out that some conduct is inherently expressive, and photographs are inherently expressive because pictures do, by their very nature, tell a story. Yet the question remained whether taking the photographs is inherently expressive. The court likened a camera in a photographer’s hand to a paintbrush in a painter’s hand. The court concluded that a person’s creation of photographs and visual recordings is entitled “to the same First Amendment protection as the photographs and visual recordings themselves.”
As to the intent element of the statute, the court said,
Banning otherwise protected expression on the basis that it produces sexual arousal or gratification is the regulation of protected thought, and such a regulation is outside the government’s power.
Furthermore, when reviewing a content-based restriction, a strict scrutiny standard is applied. Even the State can show a compelling interest to have content-based restrictions, the State must also be able to show that it is the least restrictive means of achieving the compelling government interest. While the court recognized the privacy interests of the individuals being photographed, the improper photography statute is overly broad because it does not include language addressing privacy concerns and it is not the most narrowly-tailored method of addressing situations where a substantial privacy interest is at stake.
As we recommended in March, the Texas Legislature will need to rewrite the language of the Improper Photography statute in order to narrowly tailor the restriction to the interest of protecting the privacy of individuals being photographed. If you have been arrested for or charged with Improper Photography in Texas, call Varghese Summersett PLLC immediately at 817-203-2220.
Penal Code Section 21.15: IMPROPER PHOTOGRAPHY OR VISUAL RECORDING.
(a) In this section, “promote” has the meaning assigned by Section 43.21.
(b) 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;
(2) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is a bathroom or private dressing room:
(A) without the other person’s consent; and
(B) with intent to:
(i) invade the privacy of the other person; or
(ii) arouse or gratify the sexual desire of any person; or
(3) knowing the character and content of the photograph, recording, broadcast, or transmission, promotes a photograph, recording, broadcast, or transmission described by Subdivision (1) or (2).
(c) An offense under this section is a state jail felony.
(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law.
(e) For purposes of Subsection (b)(2), a sign or signs posted indicating that the person is being photographed or that a visual image of the person is being recorded, broadcast, or transmitted is not sufficient to establish the person’s consent under that subdivision.
Portions in red have been rendered unconstitutional.