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,”5 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.
Keller, P.J., 28 March 2012, dissenting from refusal to grant appellant’s petition for discretionary review in Ex Part Nyabwa, Nos. PD-0073, 0074, 0075–12, citing Stanley v. Georgia, 394 U.S. 557 (1969).