Ex parte Thompson

• Decision Date: 17 September 2014
• Docket Number: No. PD–1371–13.,PD–1371–13.
• Citation: 442 S.W.3d 325
• Parties: Ex parte Ronald THOMPSON, Appellant.
• Court: Texas Court of Criminal Appeals

442 S.W.3d 325

Ex parte Ronald THOMPSON, Appellant.

No. PD–1371–13.

Court of Criminal Appeals of Texas.

Sept. 17, 2014.

Donald H. Flanary, III, San Antonio, TX, for Appellant.

Patrick Ballantyne, Assistant District Attorney, San Antonio, TX, Lisa C. McMinn, State's Attorney, Austin, for The State.

Opinion

KELLER, P.J., delivered the opinion of the Court in which PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, COCHRAN and ALCALA, JJ., joined.

The “improper photography or visual recording” statute makes it a crime to, among other things, photograph or record by electronic means a visual image of another person under certain circumstances.¹ Subsection (b)(1) of the statute makes such acts a crime if: (1) the person being photographed or recorded is not in a bathroom or private dressing room, (2) the photograph or recording of the person is made without that person's consent, and (3) the photograph or recording is made with the intent to arouse or gratify the sexual desire of any person.² We hold that, to the extent that it proscribes taking photographs and recording visual images, Subsection (b)(1) of the statute is facially unconstitutional in violation of the freedom of speech guarantee of the First Amendment.³ Consequently, we affirm the judgment of the Court of Appeals.

I. BACKGROUND

A. The Charges

Appellant stands charged with twenty-six counts of improper photography or visual recording under Texas Penal Code § 21.15(b)(1). Each count of the indictment alleges that appellant, “with intent to arouse or gratify the sexual desire of THE DEFENDANT, did by electronic means record another ... at a location that was not a bathroom or private dressing room.” Each count further specifies the name of an “.avi” file that was recorded. Some of the counts contain additional information regarding the subject matter and location of the recording. For instance, several counts describe “unknown female[s]” with various colors of bathing suits or bikinis “in” or “at” “a water park.”⁴

Appellant filed a pretrial application for a writ of habeas corpus, in which he alleged that the statute on which his prosecution was based is facially unconstitutional in violation of the First Amendment.⁵ The trial court denied the application, and appellant appealed.

B. Appeal

The Fourth Court of Appeals held that § 21.15(b)(1) is void on its face in violation of the First Amendment.⁶ The appellate court analyzed the issue in three parts: (1) whether the First Amendment was implicated by the statute, (2) whether the statute was content based or content neutral, and (3) whether the statute satisfied intermediate scrutiny.⁷ First, the court concluded that the First Amendment was implicated because “the statute not only restricts an individual's right to photograph, a form of speech protected by the First Amendment, ... but the statute also restricts a person's thoughts, which the U.S. Supreme Court has held is ‘wholly inconsistent with the philosophy of the First Amendment.’ ”⁸ Second, the court concluded that the statute was content neutral because it “does not favor one type of photograph over another.”⁹ Finally, the court concluded that the intermediate-scrutiny standard was not satisfied because the statute reached “a substantial amount of constitutionally protected conduct.”¹⁰ As a consequence of its holding, the court of appeals reversed the judgment of the trial court and remanded the case for entry of an order dismissing the prosecution.¹¹

C. Discretionary Review

1. State's Arguments

On discretionary review, the State contends that the First Amendment is not even implicated by the statute because the act of photography is conduct and is not inherently expressive. According to the State's brief, “Photography is essentially nothing more than making a chemical or electronic record of an arrangement of refracted electromagnetic radiation (light) at a given period of time.” At oral argument, the State also contended that the act of pushing the button on the camera to take a picture was not necessarily communicative. Rather, relying upon Texas v. Johnson,¹² the State contends that taking a picture may become communicative, if there is an intent to convey a particularized message, but that such an inquiry can be conducted only in the context of an “as applied” challenge with a developed record.

Relying in part upon our prior decision in Scott v. State,¹³ the State also contends that the improper-photography statute does not implicate the First Amendment because the elements of specific intent and lack of consent limit the scope of the regulated conduct to that which invades the privacy of another in an essentially intolerable manner. The State argues that the specific-intent requirement negates any First Amendment implications because the statute “regulates a person's intent in creating a visual record and not the contents of the record itself.”¹⁴ The State further contends that the lack-of-consent requirement means that the statute does not apply to a photograph of a person in public as long as the photograph is of an area of that person that was exposed to the public.

The State argues that any person who appears in public and exposes a certain part of the body to the public has necessarily consented to that part being photographed, and therefore, the improper-photography statute would not apply. But, the State reasons, if the person is not in public, or the photograph is of an area of the person that is not exposed to the public—such as the use of an X–Ray camera that can see through clothing or a photograph taken up a woman's skirt—then the improper-photography statute would criminalize such behavior if done with the requisite intent. This construction of the term “consent,” the State argues, would negate any First Amendment implications of the statute.

In the alternative, the State argues that, even if the First Amendment is implicated, the improper-photography statute constitutes a reasonable content-neutral restriction that serves legitimate and important government interests. The State argues that the statute is content neutral because it “does not limit the substantive content of visual recordings nor favor one type of photograph over another.” The State further argues that the statute serves the important government interest of protecting privacy by “protecting individuals from invasive covert photography” and “protecting individuals from having their images unconsensually exploited for the sexual gratifications of others.”

Further, the State argues that a statute may not be struck down on overbreadth grounds merely because it may apply to some protected speech. Rather, the State contends, a statute must apply to a substantial amount of protected conduct before it may be invalidated, and the State contends that the limiting elements of specific intent and non-consent prevent the improper-photography statute from reaching a substantial amount of protected conduct.

2. Arguments of Appellant and the Amicus

Appellant argues that photography is expressive. He contends that the recording of an image is expressive because it is always done to capture an event that the recorder thought was important. He further contends that the State's characterization of taking a photograph as conduct is overly simplistic and would apply to publishing a newspaper or painting a masterpiece. Relying upon Kaplan v. California,¹⁵ appellant contends that the First Amendment protects more than mere speech, protecting also pictures, films, paintings, drawings, and engravings. He also contends that the improper-photography statute prohibits not merely the act of photography but photography with intent to arouse or gratify sexual desire, and the latter is expressive.

Appellant further contends that the improper-photography statute impermissibly penalizes not only the expressive act of photography but also the right to receive the public expressions of others. He contends that the State's interpretation of the statute would “punish those who receive such information with their mind in the proverbial gutter” and argues that “such a stance is undoubtedly the stuff of Orwellian ‘thought-crime’ rather than the reasonable advancement of an important governmental interest.”

Appellant also contends that the Scott case relied upon by the State is distinguishable because the improper-photography statute applies even to photographs taken in public, where no privacy interest is present. Assuming arguendo that the statute is content neutral, appellant contends that it does not satisfy intermediate scrutiny because it applies even when privacy interests are not implicated. While the legislature may have a legitimate interest in prohibiting “peeping tom” and “up-skirt” photography, appellant contends that the language of the statute “utterly fails to achieve that interest because it fails to distinguish those situations from merely photographing a girl in a skirt walking down the street.” Appellant argues that the “street photographer, the entertainment reporter, patrons of the arts, attendees to a parade or a pep-rally, [and] even the harmless eccentric are all at risk of incarceration under a plain reading of this statute.”

The amicus curiae¹⁶ makes a number of arguments in favor of its view that the part of the statute at issue here is unconstitutional, but of particular interest is its contention that the statute is actually a content-based restriction on expression. The amicus argues that the statute discriminates based on content because it singles out images of “another,” which is defined elsewhere as a person, as opposed to “an animal, a landscape, or a building.” The amicus also states that the statute “covers only those photographs that have the intended primary effect of causing sexual arousal, and it is the content of speech that would cause such arousal.” According to the amicus, then, the proper standard of review is strict scrutiny (rather than intermediate scrutiny), and the amicus...