The State’s Revenge-Porn Arguments 3: Obscenity

Failing to convince the court that section 21.16(b) of the Texas Penal Code does not restrict speech, and failing to convince the court that section 21.16(b) of the Texas Penal Code is not a content-based restriction, the State is in trouble. Recent Supreme Court authority—Stevens in 2010, Alvarez in 2012—has made clear that speech is protected from content-based restriction unless it falls into a category of historically unprotected speech.

The State remembers something about obscenity. It looks at its law-school conlaw textbook1 and sees:

The Miller test was developed in the 1973 case Miller v. California. It has three parts:

  1. Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
  2. Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
  3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Perfect! Whether a work is obscene can depend on its context—something that is not obscene when viewed by adults may be obscene when pandered to children.

The prosecutor finds revenge porn patently offensive, appealing to the prurient interest, and lacking serious value of any sort. There is no way that it could be otherwise. Any right-thinking judge will see things the same way. Case closed!

But let’s look at what section 21.16(b) restricts:

Visual material depicting another person with the person’s intimate parts (naked genitals, pubic area, anus, buttocks, or female nipple) exposed or engaged in sexual conduct (sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse).

I have questions.

Does an image of someone’s buttocks necessarily appeal to the prurient (not merely sexual, but sleazy) interest? Do images of any intimate parts necessarily appeal to the prurient interest?

Assuming for the sake of argument that it does, and that “the work” includes the manner of its disclosure, does such an image depict “sexual conduct or excretory functions”? Or might it depict mere nudity, which is not obscene?

Assuming for the sake of argument that the image depicts sexual conduct or excretory functions,2 is the depiction patently—that is, on its face—offensive? Or do you have to know something else about the image for it to be offensive?

Assuming for the sake of argument that the image is offensive on its face, does it lack serious literary, artistic, political, or social value?

Even if we assume that to be true as well, section 21.16(b) fails as an obscenity statute.

Miller contains a test for obscenity, but Miller is a test for obscenity statutes. People—especially free-speech amateurs—ignore the most important part of Miller:3

The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The bolded portion means that right-minded legislators, prosecutors, judges, you, and I don’t get to decide what speech may be restricted because it is obscene. That is for the trier of fact—the jury. Miller does not allow the government to substitute its judgment for that of a jury. So a statute does not pass constitutional muster as a restriction on obscenity—it fails Miller—unless it lets the jury decide whether the work is obscene.

Section 21.16(b) does not leave the question of whether the speech restricted by section 21.16(b) satisfies the Miller test.

If the State wants to prosecute revenge porn as obscenity, it can try using Texas’s obscenity statute, which already reaches as far as obscenity law allows, and calling the disclosure of intimate images the presentation of an obscene performance:

(1) “Obscene” means material or a performance that:

(A) the average person, applying contemporary community standards, would find that taken as a whole appeals to the prurient interest in sex;

(B) depicts or describes:

(i) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or

(ii) patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs; and

(C) taken as a whole, lacks serious literary, artistic, political, and scientific value.

(3) “Performance” means a play, motion picture, dance, or other exhibition performed before an audience.

That wouldn’t apply in most of the revenge-porn cases I’m litigating right now, and would be hellaciously hard to prove even if the image depicted patently offensive representations of listed sex acts.

Here’s a protip for the next class of Texas legislators:

Speech restrictions are meant to be hellaciously hard to enforce. If you pass a law to make it easier for the State to prosecute some speech, it’s going to be unconstitutional.


  1. Just kidding. Actually Wikipedia. 

  2. It doesn’t. 

  3. Jarvis and I today were discussing why the disconnect between what lawyers know and what they think they know is so great in First Amendment law. Everybody thinks they know First Amendment law; people generally don’t think they know probate law unless they know probate law. 

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