Texas ‘Revenge Porn’ Law Does Not Violate the First Amendment, Court Finds

Texas’ highest criminal court upheld the statute, reversing an order that deemed it unconstitutional because people who shared intimate photos with no intent to harm could be found culpable.

(CN) — A Texas appeals court erred in finding a state law criminalizing “revenge porn” unconstitutional, the state’s highest criminal court ruled Wednesday.

Prosecutors in Tyler charged Jordan Bartlett Jones in February 2017 with violating the Relationship Privacy Act, which state lawmakers passed in 2015, making it a Class A misdemeanor, punishable with a max $4,000 fine and up to a year in jail, to disclose videos or photos of a person nude or having sex without their consent.

The record contains scant details of why Jones was charged: He stands accused of displaying a nude photo of a woman identified only as A.B., though he did not snap the picture himself.

The facts of the case, even the nature of their relationship, have yet to be delved into because Jones filed a pretrial habeas petition claiming the statute is unconstitutional on its face.

The trial judge rejected Jones’ petition. So he turned to the Texas 12th Court of Appeals in Tyler.

A three-judge panel of the appellate court sided with Jones in April 2018 after finding the law did not pass muster under strict scrutiny, the most intensive level of judicial review of statutes, and violated the First Amendment because it did not use the least restrictive means of achieving the state’s goal of preventing intolerable privacy invasions.

In striking down the law, the panel posed a hypothetical.

It said the law could be used to prosecute “Charlie” for sharing a photo of a topless woman he had received in an email from his friend, leading to the woman getting fired after her boss saw it.

Charlie could be prosecuted, the panel reasoned, though he had no idea his friend had shared the photo out of spite the woman had cheated on him, after promising her to never show it to anyone.

“We have concluded that Section 21.16(b) is an invalid content-based restriction and overbroad in the sense that it violates rights of too many third parties by restricting more speech than the Constitution permits,” the panel wrote, ordering the trial judge to dismiss the charge.

At the prosecution’s request, the Texas Court of Criminal Appeals agreed in July 2018 to take up the case.

With those proceedings ongoing, the Texas Legislature in 2019 passed legislation amending the law to clarify defendants break it when they share intimate photos or video with the intent to cause harm.

The Texas Court of Criminal Appeals limited its review to the original version of the statute.

A group of organizations representing booksellers, book publishers, media organizations and librarians sided with Jones in an amicus brief.

 They argued the original bill posed a broad threat to free speech because it made no exceptions “for publications made in the public interest, or on matters of public concern, including artistic, historical, and newsworthy images.”

The Cyber Civil Rights Initiative meanwhile threw its support behind the statute, citing several women who killed themselves after nude photos of them, or footage of them having sex, were posted online, and the damage revenge porn victims suffer to their job prospects.

“To avoid further abuse or humiliation, victims may withdraw from online life entirely, which can be detrimental to their job prospects and careers. Victims often spend thousands of dollars on takedown services or online,” the organization said in an amicus brief.

The Texas Court of Criminal Appeals on Wednesday rejected the 12th Court of Appeals’ interpretation and upheld the statute as constitutional.

In an unsigned opinion, it found the Legislature had in fact narrowly tailored the statute to avoid prosecuting people who unknowingly disclose material the victim expected to remain private.

Noting it starts its analysis with the presumption state laws are valid, and tries to interpret them as constitutional, the court found the 12th Court of Appeals had wrongfully examined parts of the statute not implicated by Jones’ criminal complaint.

“In holding the statute facially invalid under the First Amendment, the court of appeals construed parts of the statute that are not implicated by the charging instrument. The state argues that review should be limited to the offense charged. We agree,” the 43-page opinion states.

It reversed the 12th Court of Appeals’ ruling and remanded ordering the lower court to adjudicate Jones’ remaining argument the statute is unconstitutionally vague.

The Texas Court of Criminal Appeals opted not to publish the ruling, meaning it cannot be cited as precedent.

In a 14-page concurring opinion, Justice Kevin Yeary, joined by Justice Sharon Keller, said he would have published it, though he took issue with parts of it.

He disagreed the statute had to satisfy strict scrutiny, and said his colleagues unnecessarily invoked U.S. Supreme Court precedent to justify the conclusion the statute is constitutional.

Jones’ attorney Mark Bennett, of the Houston firm Bennett & Bennett, said the Texas Court of Criminal Appeals had disregarded limits on content-based speech restrictions the U.S. Supreme Court established in its 2010 United States v. Stevens ruling, where it found unconstitutional a federal law criminalizing the production, sale and possession of so-called animal crush videos.

“The Court of Criminal Appeals has disregarded those traditional limitations, inventing a new category of unprotected expression—speech that violates the subject’s sexual privacy—that the Supreme Court has never seen fit to recognize,” he said in an email.

He said its unpublished status renders the Texas opinion of no precedential value.

“I don’t know why the court elected not to publish the opinion, but since the court got it so dangerously wrong, I suppose it’s better that they did,” he added.

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