Home » News » Texas Appeals Court strikes down ‘revenge porn’ law, saying it is too broad

By David L. Hudson Jr., published on April 19, 2018

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The Texas Legislature passed a "revenge porn" law after stories from victims whose photos had been shared online, including Hollie Toups, pictured above, who has told her story in the news media and advocated for tougher laws. However, an appeals court in Texas struck down the law saying it was too broad and violated the rights of too many third parties. The Austin American-Statesman reports that the Texas Attorney General plans to appeal the ruling.

Texas’ revenge porn law violates the First Amendment, a state appeals court has ruled. The appeals court ruled in Ex Parte: Jordan Barlett Jones that the law is an invalid, content-based law and far too broad.

 

The law criminalizes the unlawful disclosure of intimate visual material and is commonly known as a “revenge porn” law. It provides:

 

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.

The appeals court determined, and the state conceded, that the law was a content-based restriction on speech. The appeals court noted that photography and pictures are inherently expressive and, thus, constitute speech. The court also reasoned that the law was clearly content-based, because it only prohibited certain types of speech.

 

The state argued that even though the law was content-based, such content distinctions were permissible, because the law punished obscenity – a category of speech not protected by the First Amendment. The appeals court pointed out that if all material covered by the law was obscenity, then “the statute is wholly redundant in light of Texas’s obscenity statutes.”

 

The state then argued that even though the law is content-based, it passes strict scrutiny because the state has a compelling interest in protecting the privacy rights of those people whose intimate pictures are disseminated. However, the appeals court reasoned that the law was far from narrowly tailored, because it could apply to persons who receive naked pictures of someone and then disseminate them to someone else. In other words, the law criminalizes the activities of those who had nothing to do with the creation or initial taking of the nude pictures.

 

The appeals court also explained that the law was substantially overbroad because it applies to persons who had “no knowledge or reason to know the circumstances surrounding the material’s creation, under which the depicted person’s reasonable expectation of privacy arose.”

 

The court concluded that the law 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.”

 

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