I’m delighted to report that yesterday the Texas Court of Criminal Appeals handed down Ex parte Thompson (Tex. Ct. Crim. App. Sept. 17, 2014) (8-to-1, with Judge Meyers dissenting without opinion). This was a UCLA First Amendment Amicus Brief Clinic case, in which my student Samantha Booth and I wrote an amicus brief on behalf of the Reporters Committee for Freedom of the Press. (Many thanks again, by the way, to Cam Barker (YetterColeman LLP) for all his help as local counsel.)

The court’s opinion is a victory for the right to take photographs in public — even when a statute barring such photograph is limited to photography of people without their consent and “with intent to arouse or gratify … sexual desire,” but of course equally when the photographs lack such an intention. The court struck down the Texas “improper photography” statute, which read,

A person commits an offense if the person:

(1) photographs or by videotape or other electronic means records … a visual image of another at a location that is not a bathroom or private dressing room:

(A) without the other person’s consent; and

(B) with intent to arouse or gratify the sexual desire of any person.

Here’s a quick summary of the court’s reasoning:

1. Taking photographs in public places is generally constitutionally protected, because photographs — regardless of their artistic merits — are generally protected expression, and “the act that creates the end product” is likewise protected:

The camera is essentially the photographer’s pen or paintbrush. 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.” We conclude 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.

2. This First-Amendment-protected conduct doesn’t lose its protection even when the photographer is intending to arouse or gratify sexual desires:

When the intent is to do something that, if accomplished, would be unlawful and outside First Amendment protection, such as the intent to threaten or intimidate, such an intent might help to eliminate First Amendment concerns. But when the intent is something that, if accomplished, would constitute protected expression, such an intent cannot remove from the ambit of the First Amendment conduct that is otherwise protected expression…. 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 [quoting the U.S. Supreme Court’s Ashcroft v. Free Speech Coalition decision]:

The government cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts. First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”

3. Nor can the statute be defended as a permissible privacy protection. Narrower statutes that ban taking photographs in certain private places, such as bathrooms or dressing rooms or “inside [a person’s] home” would be constitutional. So would bans on taking photographs in ways that view generally concealed parts of the body, such as “the taking of a photograph underneath a person’s clothing.” But a general ban that also applies to the parts of the body that a person voluntarily displays in public is unconstitutional:

The State suggests … that the improper-photography statute protects privacy interests by “protecting individuals from invasive covert photography” and by “protecting individuals from having their images unconsensually exploited for the sexual gratifications of others.” The State is correct; the statute does protect individuals in these way….. [But] with respect to photography or visual recordings of people in public, we do not find the State’s asserted privacy interests to be particularly substantial. A person who walks down a public street cannot prevent others from looking at him or her with sexual thoughts in their heads.

“[P]rivacy interests fade once information already appears on the public record.” Protecting someone who appears in public from being the object of sexual thoughts seems to be the sort of “paternalistic interest in regulating the defendant’s mind” that the First Amendment was designed to guard against. We also keep in mind the Supreme Court’s admonition that the forms of speech that are exempt from First Amendment protection are limited, and we should not be quick to recognize new categories of unprotected expression.

4. Because the statute distinguished photographs based on the sexual intentions of the photograph, the statute was content-based and thus subject to strict scrutiny:

[T]he statutory provision at issue does not penalize all non-consensual acts of taking photographs and making visual recordings. A statute that did so would be content neutral, but it is doubtful that such a broad prohibition would satisfy intermediate scrutiny. The provision at issue here penalizes only a subset of non-consensual image and video producing activity — that which is done with the intent to arouse or gratify sexual desire. We find this discrimination to be content based. As we have explained above, sexual thoughts are included within the protection of the First Amendment. By discriminating on the basis of the sexual thought that underlies the creation of photographs or visual recordings, the statute discriminates on the basis of content.

It is no answer that the statute merely discriminates on the basis of the thought behind the speech rather than the speech itself. As our discussion above shows, thought is intertwined with expression and is also protected by the First Amendment….

Nor may we find the statute content neutral on the basis of a “secondary effects” theory. It is the sexual content of the expression, not any secondary effect of taking photographs or making visual recordings, that the statute seeks to prevent. Although the State claims that the statute seeks to protect privacy, the only sense in which the statute necessarily protects privacy is by protecting an individual from being the subject of someone else’s sexual desires. But this type of protection regulates the primary effect of speech because it is simply the protection against the expression of “a particularly odious message,” where “the ‘chain of causation’ … necessarily ‘runs through the persuasive effect of the expressive component’ of the conduct.”

5. The statute was substantially overbroad, which justified striking it down on its face:

A statute is likely to be found overbroad if the criminal prohibition it creates is of “alarming breadth.” Such is the case with the current statute, the breadth of which has been accurately characterized as “breathtaking.” The statutory provision at issue is extremely broad, applying to any non-consensual photograph, occurring anywhere, as long as the actor has an intent to arouse or gratify sexual desire. This statute could easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street. But the statute operates unconstitutionally even if applied to someone who takes purely public photographs of another for personal reasons with the requisite intent.

Although we must look to whether the improper reach of the statute is “real,” as well as substantial, “[w]e would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” And we can look to the prosecution before us as evidence of the real danger posed by the statute. The record in the present case consists solely of the indictments, but the descriptions in a number of the counts suggest that the images recorded were of people in a public place (a water park) and of areas of the person that were exposed to the public (wearing swimsuits).

Moreover, we are aware of at least four appellate decisions, aside from this case, that involve the application of § 21.15(b)(1) to purely public photography. In one of those cases,

Cooper v. State,

the court of appeals rather ominously stated,

In the 50s, before the advent of video cameras and cell phone videos, a popular song advised us that standing on the corner and watching females pass by was acceptable conduct and that “you can’t go to jail for what you’re thinking.” Watching may still be acceptable conduct, but recording that parade may violate the law in Texas today.

In Arguellez v. State, this Court expressed its incredulity that reasonable suspicion could arise from taking photographs in a public place: “Photographs are routinely taken of people in public places, including at public beaches, where bathing suits are also commonly worn, and at concerts, festivals, and sporting events.” “Taking photographs of people at such venues,” the Court said, “is not unusual, suspicious, or criminal.” …