Part of another criminal statute crumbles under First Amendment scrutiny

Emily Johnson-Liu

Assistant Criminal ­District Attorney in Collin County

Last October, the Court of Criminal Appeals struck down the sexually explicit communications portion of the Online Solicitation of a Minor statute in Ex parte Lo.1 Now, part of another Penal Code offense—the improper photography statute—has been struck down for violating the right of free speech.2
    Although the im-proper photography statute covered a lot of behavior, among the most offensive within its scope was the taking of photos underneath a woman’s skirt (behavior that is apparently so prevalent, it has its own nickname: “upskirting”). Contrary to some reports,3 this most recent decision by the Court of Criminal Appeals, Ex parte Thompson,4 did not decree that there is a constitutional right to take upskirt photos. Upskirting can still be criminalized. But because of the way the legislature wrote the law, until the legislature acts, there is no currently valid law to prohibit some upskirting (though if it occurs in a bathroom or private dressing room, that’s still illegal because the court did not strike down that part of the statute).
    Also, if a defendant broadcasts or transmits an upskirt photo, that behavior, too, might still be constitutionally prohibited. The court expressly said it was not addressing the constitutionality of the ban on broadcasts or transmissions of non-consensual visual images.5 But for upskirting in a public place and other intrusive photography (even peeping-Tom-type photography into a person’s home), the legislature will have to redraft the statute to ensure that such conduct remains criminal. At the same time, the court held that other conduct (such as taking non-consensual pictures of what people have themselves exposed to the public) cannot be criminalized because this sort of photography is protected “speech.” It has been difficult for me personally to reconcile the idea that taking non-consensual photographs for sexual gratification should be constitutionally protected over the privacy interests of the person photographed. But I have ultimately come to believe that under a properly worded statute, the most important of these privacy interests can still be fully protected without the statute running afoul of the constitution.

The statute and the case behind Thompson
The improper photography statute is essentially separated into two subsections: photography and recordings conducted in bathrooms or private dressing rooms (which involves one set of elements) and photography and recordings conducted everywhere else (which involves another set of elements).6 Defendant Ronald Thompson challenged only the subsection applying to everywhere else. And he did so in a facial challenge raised in a pre-trial habeas corpus petition. This means that there is not a lot known about the underlying case because the defendant was challenging the law as a whole—not just how it applied to his particular case. But we do know from the indictment that the defendant was accused of 26 counts of photographing others without their consent and with the intent to arouse or gratify his own sexual desire.7 The indictment alleged that Thompson was at a water park and that some of the people he photographed without their consent included at least one “young female” and one female who had been photographed underwater.8 Thompson was also accused of photographing (on the same day) the buttocks of an unknown female in a bathroom or private dressing room—which involved the part of the statute left untouched by the court’s decision in Thompson.
    The trial judge ruled that the law was constitutional, but the San Antonio Court of Appeals disagreed. That court found that while the government has an important interest in protecting citizens from covert photography that may invade their expectation of privacy, the law was not narrowly written to serve that interest. In short, it did not survive the intermediate scrutiny that courts apply to laws restricting free speech.9
    The Court of Criminal Appeals went further than the court of appeals, finding that not only was the statute overbroad (meaning that it improperly restricted speech at its outer edges) but also that the core of the statute (non-consensual photography when the photographer’s mind was in the gutter) unconstitutionally treads on the right of freedom of expression.

The problem: a really broad statute
As it was written, §21.15(b)(1) of the Penal Code makes it a crime to photograph or videotape another person without the person’s consent and with the intent to arouse or gratify the sexual desire of any person.10 That’s it. The photograph might take place on a public street, and it might capture no more than what the subject of the photo had knowingly exposed to the public.
    The prosecutors in Thompson tried a number of arguments to preserve the statute. They argued that not every photograph was expressive or communicative and consequently, the free speech clause of the First Amendment might not even come into play. The voyeur’s camera, it could be argued, may just be a tool that enhances his vision and supplants his memory, not a means of expressing himself. But this argument was rejected. The prosecutors also argued for a narrow interpretation of the statute—that the phrase “without the other person’s consent” should exempt photos taken under circumstances where the other person has gone out into public and thereby has necessarily “consented” to some measure of public view. This, too, was rejected.
    And the argument that this was not the kind of speech worth protecting also failed. The State had argued that requiring that the photo be made for sexual gratification removed it from constitutional protection. After all, not all speech or visual images are constitutionally protected. The government can regulate obscenity and child pornography, for instance, where the value of such speech is “exceedingly modest.”11 Prosecutors likewise argued that non-consensual photography for the purpose of sexual gratification invaded the substantial privacy interests of others in an essentially intolerable manner. Here, the court agreed, but only in part. The court found that substantial privacy interests are invaded in an intolerable manner where peeping-Tom and upskirt photography is involved.12 But this was not generally true for all non-consensual photography be-cause privacy interests become limited in the public sphere. As the court explained, “A person who walks down a public street cannot prevent others from looking at him or her with sexual thoughts in their heads. … 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.”13 For me, the element of sexual gratification made non-consensual photography that much more exploitive and reprehensible. But the court saw the sexual gratification element as thought control—the element that made non-consensual photography all the more worthy of constitutional protection. This was the part of the decision that was the hardest for me to accept. I could see how the statute might be difficult to enforce, that it might sweep in photographers who actually had no bad intent. I had a much harder time with the idea that this particular bad intent was worth protecting, particularly when another person’s privacy interests were implicated.
    But with such a broad statute and no specific reference in the statute to privacy interests, the court’s concern over criminalizing thought won out over what the court saw as tenuous privacy interests.14 Taking photographs of swimmers at a water park and of those swimmers’ body parts exposed to the public, the court suggested, is constitutionally protected by the freedom of speech.
    I envisioned many circumstances where there still could be substantial privacy interests at stake, even when a person steps out into public and dons a swimsuit. Digital cameras with zoom features can magnify what is otherwise not visible to the casual observer. Cell-phone video cameras with freeze-frame capability may allow a photographer to slow down what otherwise might have gone unnoticed by an observer in real time. A view up the bottom of a man’s swimming trunks might, for example, expose a man’s private areas when he flies off the end of a slide, feet first, in front of a video camera. And while a person might assume the risk of a possible wardrobe malfunction at the bottom of a waterslide when she chooses to wear a particular swimsuit, is it just as reasonable to expect that someone will be filming at that particular place and time, creating a record of what otherwise would have been only a momentary embarrassment? When a person is photographed or filmed without her consent, she forfeits control over the image she presents to the world. And when children are filmed for the photographer’s sexual gratification, there is an even greater degree of intrusion on substantial privacy interests.
    The Court of Criminal Appeals was not deciding all of these questions, though. The judges were presented with a very broad statute in the abstract and could not find substantial privacy interests that in nearly all applications would trump the right of people to have dirty thoughts (or to not have their government regulate their thoughts). And so this part of the statute was struck down.  
    While there may be further litigation in the case, such as a petition for certiorari to the United States Supreme Court, it is likely the Texas Legislature can avoid the constitutional concerns raised in Thompson by redrafting the statute. But any revised statute should take into account that a victim may have very real privacy interests at stake, even when he or she appears in public. The federal statute is a good model:  It eliminates any requirement of sexual gratification and defines when a person’s expectation of privacy is reasonable, even in public. The statute makes it a crime to intentionally photograph, film, or broadcast a person’s naked or undergarment-clad private parts, without that person’s consent and under circumstances that a reasonable person would believe that the area would not be visible to the public, “regardless of whether the person is in a public or private place.”15
    Like prosecutions of online solicitation of a minor, until the legislature enacts a constitutional statute, past, present, and future prosecutions under this part of the improper photography statute are in jeopardy and may be flat-out invalid. Some prosecutions will have to be dismissed because there was no valid statute criminalizing the defendant’s conduct. The hard truth remains that conduct like upskirt photography in public, which would be criminal under any version of the statute, may—for a time—go unpunished. The fact that the legislature later corrects a statute that is overbroad will not save a conviction for an offense committed when the statute was unconstitutional.16 It is a heavy price to pay. But with input from prosecutors, the next legislature can appropriately redraw the online solicitation and improper photography laws to protect victims and safeguard the long-term viability of our convictions through statutes that steer clear of free-speech concerns.

Editor’s note: This marks Emily Johnson-Liu’s last article for the As The Judges Saw It column, to which she has contributed with great wisdom and sharp-eyed legal insight for five years. We are grateful for her summaries of recent court opinions and forecasts of their effects on Texas prosecutors, all written under deadline and with such clarity that even the non-lawyers among us—myself included—can understand. That is no small feat, and we will miss her.

Endnotes

1 Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013).
2 Tex. Penal Code §21.15(b)(1).
3 See, e.g., “Texas court upholds right to take ‘upskirt’ pictures,” The Guardian (Sept. 19, 2014), www.theguardian.com/world/2014/sep/19/texas-court-upholds-right-to-take-upskirt-photos.
4 Ex parte Thompson, No. PD-1371-13, 2014 WL 4627231 (Tex. Crim. App. Sept. 17, 2014).
5 See Thompson, 2014 WL 4627231, at n.3.
6 Tex. Penal Code §21.15(b)(1) (everywhere else) & 21.15(b)(2) (bathrooms and private dressing rooms).
7 See Appendix B, State’s brief on the merits in Ex parte Thompson in the Court of Criminal Appeals.
8 Id.
9 Ex parte Thompson, 414 S.W.3d 872, 880-81 (Tex. App.—San Antonio Aug. 30, 2013).
10 Tex. Penal Code §21.15(b)(1).
11 New York v. Ferber, 458 U.S. 747, 762 (1982).
12 See Thompson, 2014 WL 4627231, at *14.
13 Thompson, 2014 WL 4627231, at *10.
14 Id. at *15.
15 18 U.S.C. 1801.
16 Massachusetts v. Oakes, 491 U.S. 576, 586 (1989) (Scalia and four others, concurring and dissenting in part).