Texas Tosses Out Law Against Peeping Tom Photographs As A First Amendment Violation

from the the-first-amendment-is-tricky dept

We’ve been somewhat concerned about various attempts to pass laws against revenge porn. While revenge porn itself is immensely troubling, the problem is that any law that seeks to carve out revenge porn almost certainly leads to dangerous unintended consequences. I recognize that many pushing for such laws have very good intentions, but I worry if, in the haste to “pass a law,” the consequences of such laws are being ignored. And then there’s the question of whether or not these laws are even constitutional. There’s a good chance that many of them are not.

And that’s what makes this story interesting. The state criminal appeals court in Texas has just declared that state’s “improper photography or visual recording” law an unconstituional violation of the First Amendment. This could have ramifications in a number of ways. First, some have argued that such laws (or, indeed that very law) might represent an alternative to specific anti-revenge porn laws. But, even more to the point, some who have advocated in favor of anti-revenge porn laws have argued they can be accomplished by merely extending existing “peeping tom” laws, like the Texas one. In fact, that’s how California did its anti-revenge porn law.

But the Texas court says it’s a First Amendment violation. First, it notes that photography is, by definition, “inherently expressive,” and thus there’s certainly an expressive act which implicates the First Amendment.

The camera is essentially the photographer?s pen or paintbrush. Using a camera to create a photograph or video is like applying pen to paper to create a writing or applying brush to canvas to create a painting. In all of these situations, the process of creating the end product cannot reasonably be separated from the end product for First Amendment purposes. This is a situation where the ?regulation of a medium inevitably affects communication itself.? We conclude that a person?s purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves.

And then you run into some First Amendment problems, even if the photographs are sexual in nature:

As the Supreme Court has explained, ?Sexual expression which is indecent but not obscene is protected by the First Amendment,? and even some obscene sexual expression enjoys First Amendment protection if it occurs solely within the confines of the home. 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.

It then goes on to quote a Texas Supreme Court ruling (which in turn is quoting the Federal Supreme Court) in noting:

The government cannot constitutionally premise legislation on the desirability of controlling a person?s private thoughts. First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

That’s to drive home the point that the fact that many of these laws focus on the person’s intent is problematic.

The court further points out:

We also keep in mind the Supreme Court?s admonition that the forms of speech that are exempt from First Amendment protection are limited, and we should not be quick to recognize new categories of unprotected expression

That doesn’t mean there aren’t possible solutions. The court notes that there is a legitimate interest in protecting privacy, but says that the current law is way too broad, and covers plenty of situations where privacy is not truly implicated.

The State asserts an interest in protecting the privacy of those photographed or recorded. Privacy constitutes a compelling government interest when the privacy interest is substantial and the invasion occurs in an intolerable manner. We agree with the State that substantial privacy interests are invaded in an intolerable manner when a person is photographed without consent in a private place, such as the home, or with respect to an area of the person that is not exposed to the general public, such as up a skirt.

But § 21.15(b)(1) contains no language addressing privacy concerns. The provision certainly applies to situations in which privacy has been violated, but that is because the provision applies broadly to any non-consensual act of photography or visual recording, as long as it is accompanied by the requisite sexual intent. It is obvious that the portion of the statute at issue is not the least restrictive means of protecting the substantial privacy interests in question.

And thus, the ruling actually suggests a much more narrowly tailored law might pass muster.

there are narrower methods of reaching such situations that address more directly the substantial privacy interests at stake. For instance, subsection (b)(2) of the statute provides an alternative culpable mental state of ?with intent to . . . invade the privacy of the other person.? If this culpable mental state were a conjunctive element of subsection (b)(1), it would narrow the provision at least somewhat to address privacy concerns. Subsection (b)(1) could also be narrowed by adding an element that requires that a person?s privacy interest be invaded as a result of the place of the person recorded or the manner in which a visual recording is made. Or the legislature could designate specific places and manners that are proscribed, such as specifically proscribing the taking of a photograph of a person inside his home there are narrower methods of reaching such or the taking of a photograph underneath a person?s clothing. Because less restrictive alternatives would adequately protect the substantial privacy interests that may sometimes be threatened by non-consensual photography, the provision at issue before us fails to satisfy strict scrutiny.

Thus, whether or not the State appeals this ruling to the state Supreme Court (as seems likely), it’s possible that a more narrowly tailored law might be allowed, if it really focuses on situations that violate someone’s privacy.

In the end, it’s good to see overly broad laws tossed out, even if there are extremely legitimate concerns about the nature of revenge porn. Some people have asked why we don’t advocate for a specific solution, and the general answer is that it’s not clear there’s a good one that doesn’t also entail significant consequences for other forms of speech (or innovation, in cases where these bills try to attack intermediary liability). Revenge porn sites are immensely problematic, but just because something is problematic does not necessarily mean that a new (often overly broad) law is the answer.

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Comments on “Texas Tosses Out Law Against Peeping Tom Photographs As A First Amendment Violation”

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Anonymous Coward says:

Re: What the fuck?

I suggest actually reading the decision. The court is clearly not suggesting that it’s open season for upskirt photos of underage girls, BUT it’s suggesting that legislation which would have the desired effect of prohibiting those could be written in such a fashion that it passes Constitutional scrutiny. The court has even gone so far as to make helpful suggestions in that direction, so it is clearly on board with the general idea — it just has a problem with the wording of this specific law. (And much to my surprise, I agree with them. Oh, not because they got it right, which they did, but because they’re in Texas.)

Chris Rhodes (profile) says:

Re: What the fuck?

Did . . . did you even read the article?

Privacy constitutes a compelling government interest when the privacy interest is substantial and the invasion occurs in an intolerable manner. We agree with the State that substantial privacy interests are invaded in an intolerable manner when a person is photographed without consent in a private place, such as the home, or with respect to an area of the person that is not exposed to the general public, such as up a skirt.

But § 21.15(b)(1) contains no language addressing privacy concerns. The provision certainly applies to situations in which privacy has been violated, but that is because the provision applies broadly to any non-consensual act of photography or visual recording

I mean, seriously, it’s right there. The court specifically acknowledges that there could be a law to protect privacy in places where privacy is expected, but that this one is over-broad.

Court: “This law not only criminalizes actions unprotected by the first amendment, but also actions protected by the first amendment. Narrow it down a bit.”

Coyne Tibbets (profile) says:

Re: Re: What the fuck?

Upskirt would be protected if Texas wrote the law correctly; that is, if it had been written as a privacy violation.

Instead as I read it, the law is written to ban “dirty pictures”, which is unconstitutional because some dirty pictures are protected by the First Amendment.

It’s actually quite typical of the conservative mindset, to be more concerned about people “thinking dirty thoughts” than about details like personal privacy.

Anon says:


The state cannot pass a law saying “photography is illegal” and then announce they will only prosecute those who make kiddie porn.

To answer the original complaint – there is a law against kiddie porn, it has stood up to constitutional challenge, so an up-skirt violation of privacy of an underage girl could be prosecuted with that law – just not this law. Tossing one law does not automatically toss every other law that could apply in every situation.

the decision is simple – come up with a more restricted class of prohibited photography, not simply any photography where the prosecutor believes was done with a component of sexual interest. A photo taken that does not invade a person’s expectation of privacy (i.e. in public) should pass a very strict test before it becomes illegal.

pixelpusher220 (profile) says:

Re: Exactly

And there are plenty of laws against video recording someone in private situations without their knowledge.

Unfortunately ‘revenge’ porn rarely is recording someone’s sexual activities without their knowledge. The parties involved almost always know and agree to the creation of the video/pictures…at the time.

It’s distributing that video later after the parties have split up that makes it revenge porn. It has nothing to do with the recording of the activities itself.

Anonymous Coward says:

What’s even more frightening, in reading that law, is that it prevents anyone from photographing or videoing the police for any reason, especially when the cop doesn’t want to be recorded (say, while he’s tasing an innocent citizen because she yelled at him or something). Thankfully, they invalidated that part of it; but I can still see some cop trying to use it to cover up his bad acts.

orbitalinsertion (profile) says:

Proceeds of a criminal activity (peeping) should be forfeit. Why even bother with this particular law other than to dump it when it is clearly overly broad? Andy why cannot the inverse simply be true as well? Making public images that were taken in a private setting, at least intimate photos, is essentially creating peeping toms out of anyone who views them.

This really should not be so difficult, only legislators and their lobbies insist on having extraneous junk shoved in so they can protect an interest or criminalize at whim something they don’t happen to like.

Whatever (profile) says:

The problem here is that you are mixing two very different things into the same story. Revenge porn and upskirt shooters are as different as can be, both only linked by the fact that they are types of images.

Revenge porn is basically the use of images taken with knowledge, usually the home made sex tape, or the pics at the topless beach sort of thing. The person having their picture taken generally knew what was going on, although to be fair sometimes it’s just hidden camera home movies.

Upskirt shooters are a completely different deal. It’s generally random, done without knowledge or permission, and there is generally no relationship between the shooter and the “victim”.

There are interesting issues at play here. The legality of upskirt images have always been marginal, as the methods used to obtain them are often beyond the scope of what the public would normally see. From time to time you see guys arrested with cameras in their shoes so they can shoot images literally up a skirt. It’s such a common concept that it even featured in an episode of CSI a couple of years back.

Massachusetts deal with it recently:


The issues of revenge porn are very different. Generally shot in private, they are released purposely to cause harm or extract revenge. They do so without model releases and without proof of model age (a general requirement for porn, USC18 section 2257).

Little known fact: Celebrity leaked sex tapes, without exception, have the celeb signing off and providing full 2257 compliant documentation before it’s marketed. Many of the lawsuits and stuff are a mix of marketing and negotiation.

Hugo S Cunningham (profile) says:

Benign virus to make Internet porn generic?

Even if a jerk who put revenge porn on the Internet goes to prison where he belongs, the porn is likely to remain out there, even if no longer so closely associated with the victim.

Might an Internet virus be devised that recognizes porn, and alters the face, clothing, and other distinctive features of the subjects to something still visually appealing, but no longer “recognizable” as the original subject? Porn stars who wished to be recognizable could still offer personal images at their personal websites.

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