There are three nonconsensual-pornography-criminalization bills before the Texas House of Representatives' Criminal Jurisprudence Committee tomorrow:
(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:
- Advocacy intended, and likely, to incite imminent lawless action;
- Speech integral to criminal conduct;
- So-called “fighting words”;
- Child pornography;
- True threats; and
- 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.