For many of us, the reaction to an image of a transgender female (a biological male, as the Fifth Circuit notes, lest anyone be confused) washing her hands at the sink in a woman’s rest room would be a shrug. Regardless of our feelings about the new rules for transgender people, this just isn’t worthy of much outrage. For Travis County District Attorney, José Garza, it’s worthy of an investigation toward a felony prosecution. The Fifth Circuit agrees.
In May 2023, Evans attended a debate in the Texas House of Representatives at the Texas Capitol about gender reassignment treatment for children. When she visited the women’s restroom, Evans encountered a transgender (biologically male) politician whom she later confronted. After returning to her seat in the Capitol gallery, one of Evans’s seatmates showed her that someone from their group had posted a photo of the politician washing their hands in the women’s restroom on Facebook. Evans tweeted the photo with a caption indicating she believed the politician should not have used the women’s restroom.
Evans’s tweet generated a controversy, leading the Department of Public Safety (DPS) to question her. She surrendered her phone to DPS, which launched an investigation—at the request of Travis County District Attorney José Garza—into whether Evans violated Texas Penal Code § 21.15(b). This statute criminalized—as a state jail felony—transmitting “a visual image of another in a bathroom or changing room” or promoting such a transmission if the action is done without consent and “with intent to invade the privacy of the other person.”
Notably, Michelle Evans didn’t take the photo. Also notably, Evans was in the lege gallery to observe a debate about transgender issues. Even more notably, the photo reflected one of the problems Evans perceived with transgender issues. Whether you agree with Evans or not, there is no question that she was making a political statement by retwitting the pic about a controversial political issue. So Evans sought to enjoin Garza for prosecuting her for exercising her First Amendment right. The circuit majority wasn’t buying.
Evans argues that the statute is overbroad, but “[t]he overbreadth doctrine is ‘strong medicine’ that is used ‘sparingly and only as a last resort.'” Evans must “demonstrate from the text of [the statute] and from actual fact that a substantial number of instances exist in which the Law cannot be applied constitutionally.”
By contrast, circumstances in which a prosecution under that subsection would likely be constitutional readily come to mind. For example, it is highly unlikely, to say the least, that there is a First Amendment right to distribute, without their consent, images of a person’s genitalia or other anatomy (whether they be an adult, infant, pre-teen, teen) while utilizing bathroom facilities.
Of course, if the court’s concern was for images of genitalia, than the statute could be narrowly drafted to say so rather than so vague and overbroad as to cover a fully-clothed person washing hands.
It is also far from clear that there is a First Amendment right to capture and distribute an image, without their permission, of a fully clothed adult while in a public bathroom. Think of a celebrity, for example, who ducks into a women’s bathroom to avoid paparazzi or overzealous fans. What if the celebrity were in the restroom simply to relieve and refresh themselves? Is there a constitutional right to follow and photograph that person in a restroom when they are seeking privacy? Is any citizen, celebrity or not, fair game for photos or videos while in a restroom? Does the fact that a person is an elected official change that equation? The law is certainly not clear that politicians may be pursued, even in a public restroom, for the purpose of obtaining and publicizing their image.
Much as it might strike some as unseemly for paparazzi or fans to follow a celebrity, a totally normal thing that happens with such regularity as to justify a criminal law that impinges on the First Amendment, if the rest room is otherwise open to the public, than why would the celeb be entitled to go into a public rest room while fans are forbidden from following? Don’t fans pee too?
Nor did the circuit accept Evans’ “as applied” argument, since it wasn’t a photo of a celebrity or of a person’s genitalia, but a benign hand-washing pic that related to an issue of public concern.
Evans maintains that when the subject of the photograph is “not in a private area of the bathroom and knows they are subject to public view,” specifically, when they are “fully clothed, at a sink, washing their hands,” others in the restroom have a First Amendment right to photograph the subject, and Evans has a First Amendment right to distribute that photograph. But we cannot say it is likely that the statute, as it existed at the time of the incident, is unconstitutional as applied to Evans.
[T]he statute protects compelling government interests because “the rights to personal seclusion, bodily integrity, and sexual privacy are substantial rights; and the state has a compelling interest in protecting those rights from highly offensive or ‘intolerable’ attack.” [And t]he statute’s heightened intent requirement ensures that the statute is narrowly tailored to achieve that compelling interest. A defendant only violates the statute if they act “with intent to invade the privacy of [an]other person” when photographing or videotaping another person, or promoting such recorded content of that other person.
State courts have a long and ugly history of protecting state law from the imposition of federal constitutional rights, matters in which state judges are poorly versed and, frankly, not particularly concerned. But this was the Fifth Circuit Court of Appeals, so it has no excuse for elevating a flagrantly unconstitutional law over the First Amendment. In dissent, Judge Andrew Oldham laid it out succinctly.
In fact, the entirety of the incident—from the activist’s presence in the opposite-sex bathroom, to the picture, to Evans’s retweet of it—is a matter of public concern arising from a public debate about public policy in a public forum for lawmaking. Everything about it is the opposite of private. So as applied to the retweeted photograph, the statute fails to employ “the least restrictive means of achieving a compelling state interest.”
Whether you think Evans is right or is some right-wing anti-trans kook isn’t the point. She has the right to express her views, and the circuit has the duty to protect her right to do so.
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The Free State of Texas.
“State courts have a long and ugly history of protecting state law from the imposition of federal constitutional rights, matters in which state judges are poorly versed and, frankly, not particularly concerned.”
Boy, do they ever! Out here in the far hinterlands, our state supreme court concluded that jurors were free to use the plain and ordinary meaning of the term “obscene” instead of a proffered defense instruction based upon Miller v. California.
Although, I would posit that some of the state courts’ indifference to the constitution is motivated by the fact that Washington, D.C. is far away, and the petition for cert. acceptance rate now stands at one percent.
Of course it doesn’t matter who appoints a judge; they just rule on the law right. The president who appointed each judge may be irrelevant but it’s interesting nonetheless:
Richman: Bush
Ramirez: Biden
Oldham: Trump
Evans’ defense is that she lacked the requisite “intent to violate the privacy of the other person” Handwashing is not something that gives rise to an expectation of privacy. But the statute is based on a compelling state interest to protect reasonable expectations of privacy that justifies some limits on First Amendment expression Lots of stuff happens in bathrooms that gives rise to a reasonable expectation of privacy. Applying makeup, adjusting prostheses, imbibing legal and illegal medications from insulin to heroin. So it is not unreasonable for the state to prohibit disseminating photographs that reasonably could be construed as violating the subject’s privacy. The intent requirement protects the statute from a facial challenge and strikes the right balance. In Evans’ case she reasonably believed that she had First Amendment right to disseminate the photograph and had no intention to violate the legislator’s privacy. That is her defense.
From what I have seen, many criminal stalking and invasion of privacy statutes leave a carve-out for political activities, which would appear to cover the actions of Ms. Evans in her case. Again, out here in the far hinterlands, a political activity exemption is the sole nod made by our legislature to the First Amendment in the language of our stalking statute.
While the statute may be ultimately survive a facial challenge, the “as applied” issue remains if the District Attorney’s office files charges. Ms. Evans wasn’t the person in the bathroom who took the picture. She merely retweeted it as political speech.
Hopefully, the Texas Court of Criminal Appeals will understand the issue. It apparently threw out the predecessor statute. However, the process will be the punishment, even if Ms. Evans ultimately wins or somehow manages an acquittal before a Travis County jury.
I have lived in Austin, and I will note that nothing gets the Travis County District Attorney’s office more excited than prosecuting a Republican.
Whether she can prevail at trial on the intent requirement misses the point. When a statute criminalizes speech that doesn’t fall within an exception, it’s unconstitutional unless it can pass strict scrutiny. That you think it’s “not unreasonable” has nothing to do with it.