Ronald Thompson was arrested last September for taking photographs of swimsuit-clad children at Sea World in San Antonio. He was charged with violating Texas’s improper photography statute:
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….
He hired Don Flanary III, who made an as-written overbreadth challenge to the statute in an application for writ of habeas corpus. The San Antonio Court of Appeals found that the statute was content-neutral, but still found it unconstitutional under intermediate scrutiny.
Last week I went to the Court of Criminal Appeals to hear oral arguments on discretionary review. Don argued the case for Mr. Thompson, and he gave some of his time to Eugene Volokh to argue on behalf of amicus Reporters Committee for Freedom of the Press. (Protip: the interests of amicus are not always aligned with the interests of your client. Be wary of ceding argument time.)
The State argued that it has an interest in protecting people from being nonconsensual objects of sexual desire—a foolish notion. In aid of its argument, the State argued that the “consent” element saves the statute from overbreadth because “consent” is defined broadly enough in Section 1.07(a)(11) of the Penal Code to cover photos taken in public of people’s publicly exposed parts. Everyone who appears in public, the argument went, consents to pictures being taken of those parts of her body that are exposed to the public; the statute is aimed only at upskirt and other surreptitious photographs, and therefore is not overly broad.
(A judicial interpretation narrowing a statute can save it from First Amendment overbreadth. This is based on the legal fiction that people consider Court of Criminal Appeals opinions in deciding how to express themselves. To the contrary, people considering taking photos in public don’t review Court of Criminal Appeals opinions to decide how to frame their photos. If an overbroad statute has a chilling effect, a Court of Criminal Appeals opinion won’t diminish that effect.)
The State’s narrowing argument in Thompson’s case stinks. While the facts of the case are not legally relevant to the as-written challenge, if the State had interpreted Section 1.07(a)(11) as the prosecutor urged at the Court of Criminal Appeals, Mr. Thompson would never have been charged—the subjects of his photographs were in public. It’s disingenuous—arguably unethical—for the State to argue a theory of the law on appeal under which the State would never have charged the defendant in the first place. If the State had follow its proposed rule, the defendant would never have been charged, never had to go to the expense and trouble of hiring Don to defend him through three courts.
The Court of Criminal Appeals could adopt the State’s proposed narrowing of the law and find that the statute does not forbid taking photos of people’s exposed parts in public because people with parts exposed in public consent, as a matter of law, to those parts being photographed. (Part of Volokh’s argument was that this could save the statute from overbreadth, but might cause a vagueness problem.) If the Court of Criminal Appeals does this, Mr. Thompson wins. Bexar County loses, and could lose big—since, according to the State’s own logic, Mr. Thompson should never have been prosecuted, Bexar County might find itself writing him a large check after he files his Section 1983 suit.There are two ways to violate Texas’s Improper Photography statute—by making an image, (photograph or by videotape or other electronic means record) or by sharing an image (broadcast or transmit).
If the Court of Criminal Appeals strikes down the making portion of the statute, the sharing portion falls as well. If, however, the court upholds the making portion in Thompson as the State has urged, the sharing portion is still subject to First Amendment challenge—consent to be photographed is not the same as consent for those photographs to be shared.