from the do-it-right-or-you-might-as-well-not-do-it-at-all dept
Texas attorney Mark Bennett — instrumental in getting an unconstitutional “peeping tom” law tossed in 2014 — has scored another win for the First Amendment by getting an unconstitutional revenge porn law tossed. It’s not that anyone (except revenge porn purveyors) wants to see revenge porn go unchecked. It’s that there’s plenty of laws on the books already to address the problem and those written to target revenge porn tend to do collateral damage to the Constitution.
Mark Bennett began this fight back in 2015, right after the law went into effect. As Scott Greenfield reports, Bennett has secured a win in the 12th District Court of Appeals, reversing the lower court’s finding the law was First Amendment-compliant.
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.
As the court notes, the restriction on revenge porn is content-based. Content-based restrictions require greater scrutiny to adhere to the Constitution and Texas’ law cannot hold up to this level of scrutiny. From the decision [PDF]:
In the instant case, the State conceded at oral argument that Section 21.16(b) properly is subject to strict scrutiny analysis. We agree. Here, Section 21.16(b)(1) does not penalize all intentional disclosure of visual material depicting another person. See TEX. PENAL CODE ANN. § 21.16(b)(1). Rather, Section 21.16(b)(1) penalizes only a subset of disclosed images, those which depict another person with the person’s intimate parts exposed or engaged in sexual conduct. See id. § 21.16(a)(1), (3), (b)(1). Therefore, we conclude that Section 21.16(b)(1) discriminates on the basis of content.
The state tried to claim revenge porn is always obscene material. As the court points out, the state cannot make this determination on its own. It needs the court’s help and, further than that, courts need a jury’s help to determine whether or not disputed content is actually obscene.
Then it points out the obvious flaw in this argument — one the state should have caught before arguing a new, unconstitutional law was needed to regulate obscenity.
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.
Having dispensed with the state’s attempts to salvage a redundant law, the court gives it this send off — a light kick to ass of legislators and the state’s legal counsel: DO BETTER.
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.
Once again, it’s not that revenge porn should be ignored. It’s that it’s almost impossible to craft a law targeting revenge porn without doing damage to the First Amendment. As multiple prosecutions have shown, revenge porn purveyors tend to break plenty of existing laws. Prosecutors and regulators have had little problem shutting down sites using laws not specifically created to target revenge porn. The problem is most legislators like to appear to be doing something about societal issues, but often have little interest in ensuring their proposed statutes are Constitutionally-sound before pushing them across governors’ desks. As the court points out here, a little care taken during the crafting process would have gone a long way towards keeping this law alive.