Mark Bennett argued that:
The San Antonio Court got the question of whether 21.15 is content-based or content-neutral wrong. (It matters because a content-based statute has to pass stricter scrutiny than a content-neutral one; the San Antonio Court found that 21.15 did not even pass the lesser scrutiny.) ...Following the Court of Criminal Appeals unanimously overturning the online solicitation of a minor statute on First Amendment grounds, this may be one to watch. Prosecutors are worried that, since the online solicitation statute was struck down on essentially similar grounds to the Fourth Court of Appeals ruling in this case, the improper photography law might also be deemed unconstitutional. I wouldn't be surprised. Time will tell.
For the convenience of courts of appeals for whom this concept might be too complex, I offer the Grumpy Cat Rule: If the statute favors images of grumpy cats over other images, its regulation of speech is content-based.