2015.47: HB101, HB 496, HB603 Unconstitutional

There are three nonconsensual-pornography-criminalization bills before the Texas House of Representatives' Criminal Jurisprudence Committee tomorrow:

HB101 (Guillen) and HB603 (Davis of Harris) are identical:

(b) A person commits an offense if the person: (1)  intentionally displays, distributes, publishes advertises, offers, or otherwise discloses visual material depicting another person engaged in sexual conduct; and (2)  knows or should have known that the depicted person has not consented to the disclosure.

(c) It is a defense to prosecution under this section that: (1) the disclosure is made in the course of: (A) lawful and common practices of law enforcement or medical treatment; (B) reporting unlawful activity; or (C) a legal proceeding, if the disclosure was permitted or required by law; (2) the disclosure consists of visual material depicting only a voluntary exposure of sexual conduct in a public or commercial setting; or (3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, or a provider of an information service, as defined by 47 U.S.C. Section 153, and the disclosure consisted of visual material provided by another person.

 (d)  An offense under this section is a state jail felony.

The careceral portion of HB496 (González) follows:

(b) A person commits an offense if the person: (1) by electronic means, intentionally discloses visual material depicting another person engaged in sexual conduct; (2) was in an intimate relationship with the depicted person when the visual material was created or transmitted to the person; (3) knows or should have known that the depicted person has not consented to the disclosure; and (4) discloses the visual material with the intent to cause harm to the depicted person, including mental anguish, emotional distress, actual or threatened physical violence, economic harm, harm to reputation, or harassment by a third party.

(c) A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an Internet website or other forum for electronic publication that is owned or operated by the person. (d) It is not a defense to prosecution under this section that the depicted person: (1) created or consented to the creation of the visual material; or (2) voluntarily transmitted the visual material to the actor.

(d) It is not a defense to prosecution under this section that the depicted person: (1) created or consented to the creation of the visual material; or (2) voluntarily transmitted the visual material to the actor.

(e) It is an affirmative defense to prosecution under this section that the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure consisted of visual material provided by another person.

(f)  An offense under this section is a Class A misdemeanor.

The penal statutes these bills propose would create a restriction on speech ("visual material") that is content-based ("depicting another person engaged in sexual conduct"). Such restrictions are presumptively unconstitutional under the First Amendment.

The United States Supreme Court has, in its recent cases  involving First Amendment challenges to content-based restrictions on speech (United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577 (2010); United States v. Alvarez, 567 U.S. ___ (2012)), applied a categorical test: if the speech restricted does not fall into one of a few narrowly-defined categories of historically unprotected speech, the statute is unconstitutional. These categories are:

  1. Advocacy intended, and likely, to incite imminent lawless action;
  2. Obscenity;
  3. Defamation;
  4. Speech integral to criminal conduct;
  5. So-called “fighting words”;
  6. Child pornography;
  7. Fraud;
  8. True threats; and
  9. Speech presenting some grave and imminent threat the government has the power to prevent (“Although,” says the Supreme Court, “a restriction under the last category is most difficult to sustain”).

The expression that House Bills 101, 496, and 603 would forbid falls into none of these categories. All three bills implicate violations of privacy, but the Supreme Court has never held that violations of privacy are unprotected. House Bill 496 has an intent-to-harm element, but the Court has never held that speech is unprotected because it is intended to cause harm.

The "defenses" in subsection (c) of House Bills 101 and 603 and the "affirmative defense" in subsection (e) of House Bill 496 will not save the statutes from unconstitutionality.

Nationwide, proponents of bills like these have shown a vague handwaving lack of understanding of the First Amendment issue. In Arizona, enforcement of the nonconsensual-pornography criminalization statute was almost immediately stayed on First Amendment grounds by a U.S. District Court.

Free expression is robust in Texas criminal courts. The Court of Criminal Appeals has recently held unconstitutional two felony statutes (Online Solicitation of a Minor and Improper Photography) on First Amendment grounds. The courts are still working on unraveling the consequences to the many people who were convicted of violating these statutes. It's a bad idea for the Texas Legislature to pass another void statute.

11 Comments

  1. According to Grits for Breakfast, "Houston attorney Mark Bennett, arguably Texas' premier expert at the moment on the intersection between the First Amendment and criminal law." I agree.

  2. We should reflect, as a society, on the differences between political cartoons and “revenge porn.” I understand the slippery slope argument, but I think we can craft a revenge porn statute that doesn’t violate the first amendment. Posting “revenge porn” on the Internet is exactly the kind of intentional, malicious behavior that that belongs to the domain of “criminal law.”

    1. You write, “I think we can craft a revenge porn statute that doesn’t violate the first amendment.”

      Well, then, draft it. No bill yet proposed does the trick. The paper that “Joe” linked to includes a proposed statute that wouldn’t trigger First Amendment concerns, but it gives us pause for other reasons.

      I’m not philosophically in favor of revenge porn, but the First Amendment has to trump our revulsion.

  3. and you can argue “property” rights but I don’t think the courts are going to see it as a property case, it’s a first amendment case.

  4. Why couldn't we say that revenge porn is obscenity, and therefore not protected? Yes, yes, plain old non-revenge porn is not considered obscene. But couldn't the very fact that it IS revenge porn make it fail the Miller test? You could write it right into the law:  it is a defense under this statute to claim that the material has a serious literary, artistic, political, or scientific value. (Which only makes sense:  if a politician sends me a picture of his weiner, I should be able to put that in a newspaper without being prosecuted as a pornographer.) The other two prongs of the test don't seem to pose a problem. Well, they could — I guess if you say that prurient means ONLY sexual, whereas revenge porn is also about humiliation and cruelty, then they do. But you could also say that prurient means "unwholesomely sexual," and revenge porn certainly fits the bill for that.  

    I'd also point out that child pornography wasn't a category of unprotected speech until 1982, when NY vs. Ferber happened, and then suddenly it was. Whether revenge porn deserves a category of its own is up for debate, certainly. But if you were in favor of that outcome, the only way to make it happen would be to throw laws like this at the judiciary until something sticks… so strategically, abandoning the law at this stage would be a bad call, no?

      1. Okay. Prurient does mean unwholesomely sexual; I think “sleazy” is the closest synonym in the vernacular.

        But all obscenity is already illegal, so if revenge porn were obscenity, prosecutors would be using obscenity statutes against revenge-porn purveyors. “No serious value” is a really hard test to meet, and it’s an element of the offense. That means that the State has to prove it beyond a reasonable doubt, and plead it. The difference between “no serious value” being an element and “serious value” being a defense is the burden of production, and therefore the chilling effect of the statute: if I can be arrested and forced to defend myself for publishing something with clear social value, I am less likely to do so than if the State must have evidence that my publication lacks social value before arresting me.

        If I were in favor of revenge porn being unprotected (and I am in favor of revenge porn, narrowly defined, being unprotected; I just don’t see how we get there without losing broad swaths of less-vile speech), I would probably write as narrow a statute as I could, let it be tested and pass in the courts, then broaden it. I would do it this way rather than the other way around on the theory that once courts started holding statutes unconstitutional, I would lose momentum (and friendly legislators would lose patience).

  5. Mark,

    This is not exactly related to this particular issue, but is a 1st Amendment issue related to RSO’s. Forgive me for posting my comment here. I am sure you are aware of this somewhat recent U.S Court Of Appeals ruling in a California case:
    http://www.bna.com/sex-offenders-constitutional-n17179913358/

    Since Texas also requires RSO’s to provide their online identifiers, I was wondering if you are aware of anyone challenging the Texas statute for violation of 1st Amendment rights?

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