The State’s Revenge-Porn Arguments, Part 1: Is it Speech?

Here is section 21.16(b) of the Texas Penal Code:

A person commits an offense if:

(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct;

(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;

(3) the disclosure of the visual material causes harm to the depicted person; and

(4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:

(A) any accompanying or subsequent information or material related to the visual material; or

(B) information or material provided by a third party in response to the disclosure of the visual material.

The State likes to argue that this does not restrict speech, but only conduct.

They want to argue this because strict scrutiny is almost always fatal to a content-based restriction on speech. And there are several recent Texas intermediate court opinions statutes as restrictions on “conduct, not content.”

Under the Texas Penal Code “conduct” means an act or omission and its accompanying mental state. So all speech is conduct. Whether a statute is a content-based restriction, a content-neutral restriction on speech, or a restriction on conduct that is not expressive, the statute restricts conduct.

“Conduct or content” is a false dichotomy.

Some conduct is more expressive than other conduct; some is inherently expressive. When conduct is not inherently expressive, courts will look at whether it is intended to convey a particular message likely to be understood by those perceiving the conduct.

Visual material, though—photographs, drawings, video recordings, and so forth—is inherently expressive.

“But,” the government next argues, “we’re not criminalizing the visual material. We’re only criminalizing the disclosure of it.”

That doesn’t work either: as Justice Scalia wrote in Brown v. Entertainment Merchants Association, “[w]hether government regulation applies to creating, distributing, or consuming speech makes no difference.”

So yes, section 21.16(b) restricts speech.

1 Comment

  1. Yes, it is speech. However, it is not necessarily the speech of the defendant. It might be unidentified and therefore legal under the statute when the defendant posts it. Tracing through 21.16(b)(4)(B), we see that it could later become criminal speech if some third party recognizes the person depicted and posts to that effect.

    So it might be someone else’s speech, days or months after the defendant’s speech, that makes the defendant a violator of this section.

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