The Texas Court of Criminal Appeals ruled in a 8-1 decision yesterday that the “Improper Photography and Visual Recording Act” is facially unconstitutional. The case involved a guy who allegedly took pictures of kids at a water park. You can read more here.
Before you say, you are not a creepy person taking pictures of random kids and therefore don’t agree or don’t care, if you believe photography is art protected by the First Amendment, you should care.
The Facts of the Case
The law provides, in relevant part:
A person commits an offense if the person:
(1) photographs or by videotape or other electronic means records . . . a visual image of another at a location that is not a bathroom or private dressing room:
(A) without the other person’s consent; and
(B) with intent to arouse or gratify the sexual desire of any person.
Ronald Thompson was charged with twenty-six counts. Each count of the indictment alleges that appellant, “with intent to arouse or gratify the sexual desire of THE DEFENDANT, did by electronic means record another . . . at a location that was not a bathroom or private dressing room.”
We can all agree — creepy.
The first issue the court wrestled with was whether photography was conduct (subject to regulations) or speech protected by the First Amendment like other forms of art. The court found that pictures, even bad ones, are expressive and therefore are subject to First Amendment scrutiny. The court continued, “the process of creating the end product cannot reasonably be separated from the end product for First Amendment purposes” so the act of taking picture is also subject to First Amendment scrutiny.
The state reasoned, however, that the law regulates intent and therefore, even if considered speech, it can be regulated just like incitements to riot, threats or scams. The court responded:
Sexual expression which is indecent but not obscene is protected by the First Amendment . . . Of course, the statute at issue here does not require that the photographs or visual recordings be obscene, be child pornography, or even be depictions of nudity, nor does the statute require the intent to produce photographs or visual recordings of that nature. Banning otherwise protected expression on the basis that it produces sexual arousal or gratification is the regulation of protected thought, and such a regulation is outside the government’s power.
The court then found the law “penalizes only a subset of non-consensual image and video producing activity—that which is done with the intent to arouse or gratify sexual desire” meaning it was a content-based regulation. As I can hopefully teach my Media Law students (hint for the test), when there is a content-based law, it is subject to a strict scrutiny analysis which means a regulation of expression may be upheld only if it is narrowly drawn to serve a compelling government interest. A regulation is “narrowly drawn” if it uses the least restrictive means of achieving the government interest.
Like most other laws subject to a strict scrutiny test, this one failed, too. It was not narrowly drawn.
Although well-intentioned, the law simply covered too much. This law would allow a police officer to ask every photographer taking pictures of people in the public what their intent was. If I was taking pictures of my kids at the park, the police could ask me why. If I am doing it to show how nice my city is, I am OK. If I am doing it because I am creepy, it is against the law.
As the court noted:
The statutory provision at issue is extremely broad, applying to any non-consensual photograph, occurring anywhere, as long as the actor has an intent to arouse or gratify sexual desire. This statute could easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street.
Having the police govern the intent of our photographs is not sustainable.
I am guessing our readers are not going to run out now and start taking creepy pictures because of this ruling. But, it is comforting to know photographs are protected speech, the taking of photographs is subject to First Amendment analysis and the government does not have the right to ask me why I am taking pictures of people in public places.
With that said, we may not be thrilled this about this guy. If he crosses the line, he could still get in trouble for child pornography, invasion of privacy, unauthorized use of likeness or other wrongs if he actually harmed any of the people he photographed or used them commercially.
Our Constitutional protections, however, often protect the people on the edges so the rest of us know we are secure. Although the police may not be able to ask his intentions, if this guy is taping kids my kids at the park, I still can.
You can read the opinion here.