‘Creepy’ Photography Ban in Texas Is Unconstitutional

AUSTIN (CN) - Sections of a law criminalizing creepy, "improper photography" are unconstitutional, Texas' highest criminal court ruled, looking at a case involving photographs of children at a San Antonio water park.

Ronald Thompson, 50, was arrested in July 2011 at Sea World of Texas after concerned parents alleged that he was swimming with and taking pictures of children ages 3 to 11.

"When approached by park security, Thompson attempted to delete the photographs on his camera before it was seized," Bexar County District Attorney Susan Reed said at the time. "Police examination of the camera revealed 73 photographs of children in swimsuits, with most of the photographs targeting the children's breast and buttocks areas."

Thompson was indicted on 26 felony counts of violating the Texas Improper Photography law. It states a person commits an offense if he "photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room without the other person's consent and with intent to arouse or gratify the sexual desire of any person" or invade their privacy.

Before trial in Bexar County, Thompson applied for a writ of habeas corpus, challenging the law as violating the First Amendment. Though a judge shot the request down, the 4th District Court of Appeals in San Antonio reversed in September 2013, concluding the law violates the First Amendment right to photograph and unconstitutionally "restricts a person's thoughts."

The Texas Court of Criminal Appeals affirmed the reversal 8-1 on Wednesday.

A person's "purposeful creation" of photographs gets the same First Amendment protection as the photographs themselves, the majority found.

"The camera is essentially the photographer's pen or paintbrush," Judge Sharon Keller wrote for the court. "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.'"

Keller rejected the state's argument that the First Amendment does not protect the "intent to arouse or gratify sexual desire." Indeed there is U.S. Supreme Court precedent that indecent - but not obscene - sexual expression is protected.

"Even some obscene sexual expression enjoys First Amendment protection if it occurs solely within the confines of the home," she wrote. "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."

Sections of the law that ban photographing or recording without consent in bathrooms and dressing rooms remain intact under the high court's ruling.

First Assistant Bexar County District Attorney Clifford Herberg Jr. told the San Antonio Express-News that district attorneys across Texas will work with the Legislature to craft a law that can withstand a constitutional challenge.

"We may have to limit it to children, but right now it applies to any person," Herberg said Wednesday. "The beauty of that statute is it gets to this person before they even make contact with those children. It nips that conduct in the bud - that's what we need, to craft that, to narrow in on this type of behavior."

Follow @davejourno

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