‘Improper Photography’ Law Is Unconstitutional

     SAN ANTONIO (CN) – A man accused of photographing children at a water park should not be charged with “improper photography” because the Texas law is unconstitutional, an appeals court ruled.
     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 in a statement. “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 then indicted on 26 felony counts of violating the Texas Improper Photography statute.
     The law 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.
     Thompson had applied before trial for a writ of habeas corpus that challenged the state law under the First Amendment.
     Though a Bexar County judge denied the request, a three-judge appellate panel in San Antonio reversed on Aug. 30.
     “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,'” Justice Marialyn Barnard wrote for the Fourth Court of Appeals.
     In addition to being overbroad and vague, the law is not narrowly tailored to serve an important government interest, according to the 12-page ruling.
     “Thompson argues the statute has a substantial impact on free speech because there is no careful delimitation of criminal conduct, but rather anyone who takes photographs of non-consenting persons is at risk of violating the law,” Barnard wrote. “We agree. Some courts have held a statute that prohibits intentional conduct is rarely subject to a facial overbreadth challenge. However, we hold this statute is different from other intentional conduct statutes in that it is ‘virtually unbounded in its potential application,’ and constitutes a substantial restriction on protected conduct.”
     The panel also agreed with Thompson’s argument the statutes requires police to make subjective judgments regarding a photographer’s intent.
     “In other words, Thompson argues innocent photographers run the risk of being charged with violating the statute because the government is attempting to regulate thought, a freedom protected by the First Amendment,”” Barnard wrote. “We agree. It is not enough to say a statute is not overbroad simply because it is directed at conduct with intent, if the intent portion of the statute regulates freedoms protected by the First Amendment. Furthermore, the location identifier … – at a location that is not a bathroom or private dressing room – is so broad the statute seems to criminalize conduct in areas where individuals have no expectation of privacy.”
     Immediately after the court’s ruling, District Attorney Reed defended the other useful applications of the statute.
     “The law is frequently applied where covert cameras are placed in bedrooms to record or broadcast sexual activity without the knowledge of a participant,” Reed said in a statement. “It also protects women from offenders who crouch behind them to take ‘up-skirt’ pictures in public places. And, the law protects children from child predators who would use them as the subjects of their sexual fantasies.”
     Some experts view the act of photographing children as a “stepping stone” to more aggressive behavior, Reed added.
     She said the Texas Court of Criminal Appeals, the state’s highest criminal appeals court, will have the final say on Thompson’s case.
     “Three other courts of appeals in Texas have held the Improper Photography statute to be constitutional,” she said. “The Fourth Court of Appeals is the only court to have ever held otherwise.”

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