Ex parte Metzger

• Decision Date: 26 August 2020
• Docket Number: Nos. 04-19-00438-CR & 04-19-00450-CR,s. 04-19-00438-CR & 04-19-00450-CR
• Citation: 610 S.W.3d 86
• Parties: EX PARTE Robert METZGER
• Court: Texas Court of Appeals

610 S.W.3d 86

EX PARTE Robert METZGER

Nos. 04-19-00438-CR & 04-19-00450-CR

Court of Appeals of Texas, San Antonio.

Delivered and Filed: August 26, 2020

Discretionary Review Refused January 27, 2021

Edward Larry Marshall, Attorney General's Office, P.O. Box 12548, Austin, TX 78711-2548, Garrett Greene, Office of Atty. General-Criminal Appeals Div., P.O. Box 12548, Capitol Station, Austin, TX 78711, Lance A. Kutnick, Texas Attorney General Office, P.O. Box 12548, Austin, TX 78711-2548, for Appellant.

Lisa Tanner, Assistant Attorney General, P.O. Box 12548, Austin, TX 78711, Mark W. Bennett, Bennett & Bennett, 917 Franklin St., Fl. 4, Houston, TX 77002-1741, for Appellee.

Sitting: Rebeca C. Martinez, Justice, Luz Elena D. Chapa, Justice, Liza A. Rodriguez, Justice

Opinion by: Luz Elena D. Chapa, Justice

Appellant Robert Metzger was indicted in both Kerr and Gillespie Counties for multiple counts of violating sections 21.15(b)(1) and (b)(2) of the Texas Penal Code, the "Invasive Visual Recording" statute. Both indictments were filed in the 216th Judicial District Court, and the cases proceeded together. Metzger filed pretrial applications for writs of habeas corpus and motions to quash the indictments, alleging the provisions of section 21.15 under which he was charged are facially overbroad in violation of the First Amendment to the United States Constitution. The trial court granted the writs, held a non-evidentiary hearing on the cases, and denied relief. Metzger appeals the denial of relief. We affirm the trial court's orders.

BACKGROUND

The Texas Legislature enacted the current version of section 21.15 in 2015, after the Texas Court of Criminal Appeals declared the previous version of section 21.15(b)(1) unconstitutional. See Ex parte Thompson , 442 S.W.3d 325 (Tex. Crim. App. 2014).¹ Sections 21.15(b)(1) and (b)(2) now provide:

(b) A person commits an offense if, without the other person's consent and with intent to invade the privacy of the other person, the person:

(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of an intimate area of another person if the other person has a reasonable expectation that the intimate area is not subject to public view;

(2) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another in a bathroom or changing room;

TEX. PENAL CODE § 21.15(b)(1)-(2). Section 21.15 defines "intimate area" as "the naked or clothed genitals, pubic area, anus, buttocks, or female breast of a person" and defines "changing room" as "a room or portioned area provided for or primarily used for the changing of clothing and includes dressing rooms, locker rooms, and swimwear changing areas." Id. § 21.15(a)(2), (3). An offense under section 21.15 is a state jail felony, punishable by confinement in a state jail for not less than 180 days and not more than two years and a fine of up to $10,000. TEX. PENAL CODE §§ 12.35, 21.15(c).

The indictments charge that Metzger, with the intent to invade the privacy of N.M. and without N.M.'s consent:

• transmitted by electronic means a visual image of an intimate area of N.M. and N.M. had reasonable expectation of privacy that the intimate area was not subject to public view, in violation of section 21.15(b)(1) ; (four counts);

• photographed an intimate area of N.M. and N.M. had reasonable expectation the intimate area was not subject to public view, in violation of 21.15(b)(1); (one count); and

• photographed N.M. in a bathroom or changing room, in violation of section 21.15(b)(2) ; (2 counts).

Metzger filed pretrial applications for writs of habeas corpus in each case, seeking to dismiss the indictments on the ground the provisions of section 21.15(b)(1) and (2) under which he was charged violate the First Amendment and are unconstitutionally overbroad. After the trial court denied relief, Metzger filed these appeals. In three issues, he contends the restriction on transmission of images in section 21.15(b)(1) and the restriction on photography in sections 21.15(b)(1) and (b)(2) are unconstitutionally overbroad restrictions on speech that facially violate the First Amendment to the United States Constitution.

STANDARD OF REVIEW AND FIRST AMENDMENT REVIEW

A defendant may file a pretrial habeas challenge to the facial constitutionality of a statute that defines the offense charged. Ex parte Weise , 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). A party may bring a facial challenge to a statute pursuant to the First Amendment doctrine of substantial overbreadth without a showing the statute is unconstitutionally applied to him. Massachusetts v. Oakes , 491 U.S. 576, 581, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989) ; State v. Johnson , 475 S.W.3d 860, 864-65 (Tex. Crim. App. 2015) (stating that "under the First Amendment's ‘overbreadth’ doctrine, a law may be declared unconstitutional on its face, even if it may have some legitimate application and even if the parties before the court were not engaged in activity protected by the First Amendment"). "The doctrine is predicated on the danger that an overly broad statute, if left in place, may cause persons whose expression is constitutionally protected to refrain from exercising their rights for fear of criminal sanctions." Oakes , 491 U.S. at 581, 109 S.Ct. 2633. We review de novo the trial court's determination of whether the statute is facially unconstitutional. Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2014).

"[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." U.S. v. Stevens , 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (quoting Ashcroft v. Am. Civil Liberties Union , 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) ). However, there are some "well-defined and narrowly limited classes of speech" that have been recognized as falling outside the protection of the First Amendment. Stevens , 559 U.S. at 468-72, 130 S.Ct. 1577. These include child pornography, obscenity, defamation, fighting words, incitement, true threats of violence, fraud, and speech integral to criminal conduct. See id. Speech not within one of these narrowly defined categories is protected under the First Amendment, even if a legislature "concludes certain speech is too harmful to be tolerated." Brown v. Entm't Merchants Ass'n , 564 U.S. 786, 791, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011).

A statute that seeks to restrict or punish protected speech based on its content is presumptively invalid. Stevens , 559 U.S. at 468, 130 S.Ct. 1577 ; Lo , 424 S.W.3d at 15. The State bears the burden to rebut that presumption by demonstrating that the statute passes strict scrutiny. Brown , 564 U.S. at 799, 131 S.Ct. 2729 ; Stevens , 559 U.S. at 468, 130 S.Ct. 1577. To pass strict scrutiny, the State must demonstrate the statute is justified by a compelling state interest and is narrowly tailored, using the least restrictive means necessary to achieve its asserted interest. Brown , 564 U.S. at 799, 131 S.Ct. 2729 ; Thompson , 442 S.W.3d at 344 ; see U.S. v. Alvarez , 567 U.S. 709, 725-26, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012) (plurality op.) ("There must be a direct causal link between the restriction imposed and the injury to be prevented"). If the statute still reaches a "real" and "substantial" amount of protected speech, "judged in relation to the statute's plainly legitimate sweep," the statute is unconstitutionally overbroad. Stevens , 559 U.S. at 473, 130 S.Ct. 1577 ; Lo , 424 S.W.3d at 10.

DISCUSSION

A. Section 21.15 regulates protected speech

Metzger challenges parts of section 21.15 that impose criminal penalties on photography and transmission of visual images. As a general matter, both the creation and dissemination of visual images are protected expression under the First Amendment. See Brown , 564 U.S. 786, 131 S.Ct. 2729 (holding law that imposed civil fines for the sale or rental of violent video games to minors impermissibly restricted protected speech); Stevens , 559 U.S. 460, 130 S.Ct. 1577 (holding statute criminalizing the knowing creation, selling, or possession of certain depictions of animal cruelty with intent to place it in commerce for commercial gain punished protected speech); Ashcroft v. Free Speech Coalition , 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (holding statutory prohibition on possessing or distributing "virtual child pornography," non-obscene sexually explicit images that appear to depict minors but which were produced using youthful adults or computer imaging technology, violated First Amendment); Thompson , 442 S.W.3d at 336-37 (holding that photographs and visual recordings, as well as the purposeful creation of them, are inherently expressive and are protected by the First Amendment). Although some visual images restricted by section 21.15 are unprotected because they are obscene or constitute child pornography, the reach of section 21.15 is indisputably far broader and reaches photographs and visual images not within any of the recognized categories of unprotected speech.

The State argues the expressive activity regulated by section 21.15 "is removed from the ambit of First Amendment protection" because the statute only restricts photography and visual recordings intended to invade the "substantial privacy interests" of another "in an essentially intolerable manner." Alternatively, the State asserts that speech intended to invade substantial privacy rights should be categorically unprotected by the First Amendment. We disagree with both propositions.

The State's argument that the photography and transmissions restricted by section 21.15 are not protected by the First Amendment appears to be based upon a line of United States Supreme Court cases upholding restrictions on protected speech under the "captive audience doctrine." The doctrine has been applied "only...