from the the-first-amendment-is-tricky dept
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 expressionThat 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.And thus, the ruling actually suggests a much more narrowly tailored law might pass muster.
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.
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.