Revenge-Porn Oral Argument

The First Court of Appeals in Houston will be hearing oral argument February 13th in the case of State v. Mora. This is the State’s appeal from a trial court judgment holding section 21.16(b) of the Texas Penal Code (Unlawful Disclosure or Promotion of Intimate Visual Material) unconstitutional under the First Amendment.

The State’s scattered brief:

BRF STA FLD 110717

Mr. Mora’s elegant brief:

BRF APE FLD 011018

We argued this issue last month before the Waco Court of Appeals1 but that argument was not recorded for posterity. This one will be.


  1. I’ll throw those briefs up in a separate post. 

4 Comments

  1. While I understand that this is a facial challenge and the State’s description is irrelevant (as your brief says), I also take issue with the State claiming that Mora posted a photograph of the complainant’s vagina. Considering that the vagina is “the muscular tube leading from the external genitals to the cervix of the uterus”, I do wonder how Mora could possibly have gotten such a picture (or how the complainant would have recognized it as her own).

    Or was it just a picture of external genitalia? (Or even moreso, why doesn’t the State know the difference?)

    1. I don’t think a court of appeals is going to find the evidence legally insufficient if Mr. Mora winds up going to trial and the State presents only the image of the complainant’s external genitalia. While technically incorrect, “vagina” is commonly used to mean the female genitalia generally.

  2. It seems like the crux of the State’s arguments is that the government purpose is to prevent the exchange of obscene material that could damage the victim’s reputation. That seems like a defamation claim here. Not only that, the likely legal standard the victim would have to meet would only be negligence, because the victim would likely be a private individual, thereby making defamation a more feasible and realistic way of redress than criminal prosecution.

    Additionally, I find the State’s argument that the restriction would be the “least restrictive means,” given that defamation is a viable option of redress for a so-called victim of revenge porn. I would hardly think criminal prosecution of a defendant would be the least “restrictive means” to achieve their “important governmental interest.” I think a possible defendant’s incarceration might outweigh the government’s interest; given that a defendant would be subject to loss of job prospects, social stigmatization, and other problems former convicts deal with post-incarceration. Ruining a man’s life over the free exchange of material is not a justifiable government interest that I think would also fail a rational basis test.

    Also, why wouldn’t consent of the exchange of the obscene material be an affirmative defense to the charge?
    Regardless of the defamation potential, if the “victim” freely gave the obscene material (with the intent to make a gift, free of charge) I don’t see how a victim (nor the State) would have a viable claim against a defendant. It seems like a terrible slippery slope, given that a “victim” could later arbitrarily say that they didn’t want the defendant to exchange/publish the material, and petition for charges to be filed against the defendant.

    1. Most of your questions are answered in my briefs in recent posts.

      It’s not obscene—obscenity requires factors that don’t necessarily exist here.

      It’s not defamation—defamation requires falsity, which presumptively does not exist here.

      Consent is not an affirmative defense because the legislature didn’t want to make it a defense.

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