In re Jones

• Decision Date: 18 April 2018
• Docket Number: NO. 12-17-00346-CR,12-17-00346-CR
• Parties: EX PARTE: JORDAN BARTLETT JONES
• Court: Texas Court of Appeals

EX PARTE: JORDAN BARTLETT JONES

NO. 12-17-00346-CR

COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

April 18, 2018

APPEAL FROM THE COUNTY COURT AT LAW NO. 2 SMITH COUNTY, TEXAS

OPINION

Jordan Bartlett Jones was charged with unlawful disclosure of intimate visual material in violation of Texas Penal Code, Section 21.16(b), commonly known as the "revenge pornography" statute. This is an appeal from the trial court's denial of Jones's pretrial Application for Writ of Habeas Corpus, in which he alleged that Section 21.16(b) is unconstitutional on its face because it violates the First Amendment to the United States Constitution. Jones raises two issues on appeal. We reverse and remand.

BACKGROUND

Because this appeal presents a facial challenge to a statute, a detailed rendition of the facts is unnecessary for its disposition. We therefore provide only a brief procedural history.

Jones was charged by information with unlawful disclosure of intimate visual material. On September 6, 2017, Jones filed an Application for Writ of Habeas Corpus, in which he argued that Texas Penal Code, Section 21.16(b) is unconstitutional on its face. On October 23, 2017, the trial court denied Jones's application, and this appeal followed.

CONSTITUTIONALITY OF TEXAS PENAL CODE, SECTION 21.16(b)

In his first issue, Jones argues that Section 21.16(b) is facially overbroad under the First Amendment to the United States Constitution. Section 21.16(b) sets forth, in pertinent part, as follows:

A person commits an offense if:

(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct;

(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;

(3) the disclosure of the visual material causes harm to the depicted person; and

(4) the disclosure of the visual material reveals the identity of the depicted person in any manner[.]

TEX. PENAL CODE ANN. § 21.16(b) (West Supp. 2017). Under this section, "intimate parts" means "the naked genitals, pubic area, anus, buttocks, or female nipple of a person." Id. § 21.16(a)(1). "Visual material" includes "any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide." Id. § 21.16(a)(5)(A). It further includes "any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method." Id. § 21.16(a)(5)(B).

Standard of Review

A claim that a statute is unconstitutional on its face may be raised by a pretrial writ of habeas corpus. Ex Parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). Habeas corpus preconviction proceedings are separate criminal actions, and the applicant has the right to an immediate appeal before trial begins. Greenwell v. Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 650 (Tex. Crim. App. 2005).

We review a trial court's decision to grant or deny an application for writ of habeas corpus under an abuse of discretion standard. See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006); Ex parte Thompson, 414 S.W.3d 872, 875 (Tex. App.-San Antonio 2013), aff'd, 442 S.W.3d 325 (Tex. Crim. App. 2014). However, when the trial court's ruling and determination of the ultimate issue turns on the application of the law, such as the constitutionality of a statute, we review the trial court's ruling de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007); see Thompson, 414 S.W.3d at 875-76.

Furthermore, we review the constitutionality of a criminal statute de novo. Byrne v. State, 358 S.W.3d 745, 748 (Tex. App.-San Antonio 2011, no pet.). When a statute is attacked on constitutional grounds, we ordinarily presume the statute is valid and that the legislature has not acted unreasonably or arbitrarily. State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). The burden rests upon the individual who challenges the statute to establish its unconstitutionality. Id. However, when the government seeks to restrict speech based on its content, the usual presumption of constitutionality afforded to legislative enactments is reversed. United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 817, 120 S. Ct. 1878, 1888, 146 L. Ed. 2d 865 (2000); Thompson, 414 S.W.3d at 876. Content-based regulations are presumptively invalid, and the government bears the burden to rebut that presumption. Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 660, 124 S. Ct. 2783, 2788, 159 L. Ed. 2d 690 (2004); Thompson, 442 S.W.3d at 348.

First Amendment - The Statute's Regulation of Free Speech

The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech." U.S. CONST., Amend. 1. We first must determine whether that right to freedom of speech is implicated in this case. The free speech protections of the First Amendment are implicated when the government seeks to regulate protected speech or expressive conduct. See Scott v. State, 322 S.W.3d 662, 668-69 (Tex. Crim. App. 2010). It is the obligation of the person desiring to engage in allegedly expressive conduct to demonstrate that the First Amendment applies. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294 n.5, 104 S. Ct. 3065, 3069 n.5, 82 L. Ed. 2d 221 (1984).

The Texas Court of Criminal Appeals has concluded that photographs and visual recordings are inherently expressive and that there is no need to conduct a case-specific inquiry into whether these forms of expression convey a particularized message. See Thompson, 442 S.W.3d at 336. The court further concluded 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. Id.; see also Brown v. Entm't Merch. Ass'n, 464 U.S. 786, 792 n.1, 1311 S. Ct. 2729, 2734 n.1, 180 L. Ed. 2d 708 (2011) (noting that under First Amendment analysis, there is no distinction whether government regulation applies to "creating, distributing, or consuming" speech).

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 distribution¹ 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. See Thompson, 442 S.W.3d at 336; see also Brown, 464 U.S. at 792 n.1, 1311 S. Ct. at 2734 n.1.

Statute's Regulation of Speech - Content-Based or Content-Neutral

We next must determine whether the statute regulates speech in a content-based or content-neutral manner. As a general rule, laws that, by their terms, distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based, whereas laws that confer benefits or impose burdens on speech without reference to the ideas or views expressed are content neutral. Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642, 114 S. Ct. 2445, 2459, 129 L. Ed. 2d 497 (1994); Thompson, 442 S.W.3d at 345. If it is necessary to look at the content of the speech in question to decide if the speaker violated the law, the regulation is content-based. See Thompson, 442 S.W.3d at 345 (citing Ex parte Lo, 424 S.W.3d 10, 15 n.12 (Tex. Crim. App. 2013)). The result of this inquiry dictates the standard of scrutiny under which we analyze the statute. Courts review content-based laws that suppress, disadvantage, or impose differential burdens on speech because of its content under a strict scrutiny standard. Turner Broad. Sys., Inc., 412 U.S. at 642, 114 S.Ct. at 2459. In contrast, content-neutral laws that govern expression but do not seek to restrict its content are subject to intermediate scrutiny. Id.

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. Cf. Thompson, 442 S.W.3d at 347.

Obscene by Context

Content-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional categories of expression. United States v. Alvarez, 567 U.S. 709, 717, 132 S. Ct. 2537, 2544, 183 L. Ed. 2d 574 (2012); Morehead v. State, 807 S.W.2d 577, 580 (Tex. Crim. App. 1991). New categories of unprotected speech may not be added to the list based on a conclusion that certain speech is too harmful to be tolerated. Brown, 464 U.S. at 791, 1311 S. Ct. at 2734. Among the categories of unprotected speech are obscenity, defamation, fraud, incitement, and speech integral to criminal conduct. See United States v. Stevens, 559 U.S. 460, 468-69, 130 S. Ct. 1577, 1584, 176 L. Ed. 2d 435 (2010)

The State argues in its brief that the expectation of privacy and the nonconsensual nature of the disclosure causes any visual material covered by Section 21.16(b) to be unprotected speech because it is contextually obscene.² We disagree. For more than forty years, the issue...