Texas Revenge Porn Law Unconstitutional

Mark Bennett, the Texas Tornado, took another law down for violating the First Amendment. This time, it was Texas Penal Code 21.16(b), the so-called “revenge porn” law. In Ex parte Jones, the 12th District Court of Appeals reversed the court below and held that the statute was facially unconstitutional.

As has been argued from the day Mary Anne Franks began her efforts to create a criminal revenge porn statute, it clearly implicated the First Amendment’s prohibition against laws infringing on free expression, to which she merely screamed her denials and did her best to deflect by creating a fantasy interpretation of the First Amendment. The court made swift work of it.

In the instant case, Section 21.16(b) proscribes the disclosure of certain visual material, including any film, photograph, or videotape in various formats. Because the photographs and visual recordings are inherently expressive and the First Amendment applies to the distribution of such expressive media in the same way it applies to their creation, we conclude that the right to freedom of speech is implicated in this case.

The court then held the statute to be content-based, and therefore subject to strict scrutiny. It thus had to fit within a categorical exception to the First Amendment.

Content-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional categories of expression…

The State argues in its brief that the expectation of privacy and the nonconsensual nature of the disclosure causes any visual material covered by Section 21.16(b) to be unprotected speech because it is contextually obscene. We disagree.

The contention, relying upon Franks’ and Danielle Citron’s “legal” arguments, was that it fell within a new concept of obscenity, “contextually obscene.” Except there is no such category outside of their imaginations, nor can anything be found obscene except by a jury.

For more than forty years, the issue of whether a matter is obscene, and, thereby, constitutes unprotected speech, has been a determination to be made initially by the trier of fact.

Here, Section 21.16 does not include language that would permit a trier of fact to determine that the visual material disclosed is obscene. Moreover, if, as the State argues, any visual material disclosed under Section 21.16(b) is obscene, the statute is wholly redundant in light of Texas’s obscenity statutes.

After offering a hypothetical* to demonstrate how wildly problematic the law was, the court noted that the law failed to make any effort to narrow its prohibitions, which was a fundamental tenet of the Franks approach to criminalizing revenge porn lest anyone get away with it.

We remain mindful that content-based regulations are presumptively invalid. See Thompson, 442 S.W.3d at 348. At the very least, Section 21.16(b)(2) could be narrowed by requiring that the disclosing person have knowledge of the circumstances giving rise to the depicted person’s privacy expectation. But because Section 21.16(b) does not use the least restrictive means of achieving what we have assumed to be the compelling government interest of preventing the intolerable invasion of a substantial privacy interest, it is an invalid content-based restriction in violation of the First Amendment.

The court, in an excess of caution, went on to address the statute’s overbreadth problem despite having already held it facially unconstitutional.

Today, a person can share a photograph or video with an untold number of people with a mere click of a button. The daily sharing of visual material, for many, has become almost ritualistic. And once the act of sharing is accomplished, it is highly questionable whether that act ever can be completely rescinded. But assuming that the visual material is not otherwise protected, these persons are acting within their rights when they share visual material with others.

Sharing may not be caring as far as Franks is concerned, but it’s constitutionally protected.

Section 21.16 is extremely broad, applying to any person who discloses visual material depicting another person’s intimate parts or a person engaged in sexual conduct, but where the disclosing person has no knowledge or reason to know the circumstances surrounding the material’s creation, under which the depicted person’s reasonable expectation of privacy arose. Furthermore, its application is not attenuated by the fact that the disclosing person had no intent to harm the depicted person or may have been unaware of the depicted person’s identity. Accordingly, we conclude that the criminal prohibition Section 21.16(b) creates is of “alarming breadth” that is “real” and “substantial.”

Neither of these holdings will come as any surprise, as the issues have long been raised here and elsewhere, and the absurd efforts of Franks and other supporters of revenge porn laws to twist First Amendment law into some sham of rhetorical relativity as if they could talk their way out of clear, settled law and make the flagrant unconstitutionality of their cries disappear.

But then, it’s different to have a court dismiss their arguments so handily, even accepted in dicta for the purpose of argument that there is such a thing as an “intolerable violation of privacy.” In other words, this was as accommodating of the Franks contention as could be, and it was quickly rejected.

Another huge win for the Texas Tornado, who has taken apart the hysterical cries of the academics who have done enormous damage in their effort to grossly distort constitutional law. They try to break it. Mark Bennett saves it. And he will continue to do so.

*This is the hypo used by the court:

Adam and Barbara are in a committed relationship. One evening, in their home, during a moment of passion, Adam asks Barbara if he can take a nude photograph of her. Barbara consents, but before Adam takes the picture, she tells him that he must not show the photograph to anyone else. Adam promises that he will never show the picture to another living soul, and takes a photograph of Barbara in front of a plain, white background with her breasts exposed.

A few months pass, and Adam and Barbara break up after Adam discovers that Barbara has had an affair. A few weeks later, Adam rediscovers the topless photo he took of Barbara. Feeling angry and betrayed, Adam emails the photo without comment to several of his friends, including Charlie. Charlie never had met Barbara and, therefore, does not recognize her. But he likes the photograph and forwards the email without comment to some of his friends, one of whom, unbeknownst to Charlie, is Barbara’s coworker, Donna. Donna recognizes Barbara and shows the picture to Barbara’s supervisor, who terminates Barbara’s employment.

17 thoughts on “Texas Revenge Porn Law Unconstitutional

  1. David

    “Neither of these holdings will come as any surprise” – this being the Texas court system, yes, I am surprised. Not at Bennett’s argument or his correctness, but that the court actually took it’s head out of it’s ass for a few minutes.

      1. RKW

        Don’t get too excited yet. The 12th Court of Appeals is an intermediate appellate court. The state can petition to have the Texas Court of Criminal Appeals review the case. That court has a solid majority which always rules for the state. While Mr. Bennett is clearly correct, that generally doesn’t mean much in the Court of Criminal Appeals. The fat lady hasn’t sung yet.

  2. F. Lee Billy

    Category 5+,… = 175 mph! Take cover immediately, if not sooner! AKA Bomb Cyclone. Revenge Porn, oxymoron, who sez the Lonestar judiciary is a pushover? Texas Tornado strikes again.

  3. Dan

    In other words, Bennett is a shitlord who is denying the lived experiences of the poor victims. Congratulations!

  4. Blackbellamy

    Ooh baby let me take a picture.
    Ok you big stud how do you want me?
    Could you stand there? In front of that white wall?
    You want a little sexy pose?
    No. Stand straight. Also, expose your breasts.
    This is…weird.
    Do you like Huey Lewis and the News?

    — American Hypothetical

      1. B. McLeod

        I assumed Barbara’s supervisor fired her for her white background. That is so out of style these days.

        1. pithy the fool

          Barbara was fired for concealing her breasts from her employer, if they’d known they would never have hired her right?

      2. PseudonymousKid

        Cause they are sexy, why the fuck else? Life is fleeting. Why not enjoy some carnal happiness, however momentary it is.

    1. SHG Post author

      Not sure this is quite the way anybody wants to live their life. Not do stupid things? Sure. But let’s not get carried away.

  5. Pingback: In the News (#834) | The Honest Courtesan

Comments are closed.