Sunday, September 01, 2013

Is Texas' 'improper photography' statute unconstitutional?

Somewhere, Mark Bennett must be smiling after the Fourth Court of Appeals declared Texas' "improper photography" law unconstitutional. Now the Court of Criminal Appeals will be asked to resolve differing opinions among Texas appellate courts, reported KSAT out of San Antonio (Aug. 30):
The Fourth Court of Appeals declared the Texas Improper Photography Statute unconstitutional on Friday.

District attorneys say Section 21.15 of the Penal Code, known as the Improper Photography statute, makes it a state jail felony to visually record or photograph another person without their consent to arouse or gratify the sexual desire of another person.

"I was very surprised this has proven to be an important statue in what I could call the digital age this is the kind of statue that prevents someone from photographing under a woman’s skirt,” said First Assistant District Criminal Attorney Clifford Herberg Jr.
The defendant in the case was arrested for taking pictures of children in their swimsuits at Sea World. He filed a pretrial habeas corpus writ challenging the constitutionality of the statute. "Thompson argues innocent photographers run the risk of being charged with violating the statute because the government is attempting to regulate thought, a freedom protected by the First Amendment," said the appellate ruling. The court found that the "location identifier" in the statute — "at a location that is not a bathroom or private dressing room — is so broad the statute seems to criminalize conduct in areas where individuals have no expectation of privacy," including public spaces like an amusement park.

See the Fourth Court's opinion (pdf). H/T: PetaPixil.

MORE: From Eugene Volokh.


Harry Homeless said...

My understanding is there was no intent to ever charge anyone but to use it as an excuse for arrest and search and seizure but then always drop the knowingly unconstitutional charges later. One of the worst laws ever written. Whoever wrote and signed off on this law belongs in jail.

Unknown said...

Of course this law is unconstitutional but that has never stopped lawmakers from passing bad policy.

Anonymous said...

I recall a case from several years ago where a man was sentenced to a long prison term for taking photos of kids during a school's athletic event. The photos were of the crotches and the man had zoomed in on those areas. No nudity, but he was charged with child pornography. I don't remember in which state this occurred, but I don't believe it was Texas. It's my understanding his case wasn't reversed on appeal. I can't find anything about it on the web but I'm pretty sure it was featured on a 60-Minutes type of news show. Would this ruling affect those types of photos?

Anonymous said...

And yet another development in the "wussification" of America. I can remember back in the day when you didn't need a law to protect children from being photographed by perverts. It used to be that a couple of good ol' boys would simply administer an old fashioned country ass whuppin to the pervert aforesaid and the matter would be resolved. Oh, for days gone by.

Lee said...

Are they going to arrest the surveillance cameras as well as those whom monitor and maintain them?

rodsmith said...

this is my book is what is called a govt fucktard law.

a govt fucking retard thought it up

a govt fucking retard wrote it

a govt fucking retard at the end signed it.

Ron Scubadiver said...

This law is surely unconstitutional for the reasons given by the appeals court. If the state wants to outlaw up skirt photography (and they should) then the law should be specific. If protecting children is the objective, the law should be specific. Note that the Texas statute is unique in the US in that it does not require an invasion of privacy. One photographing fully clothed people in a public place may be charged based on another's opinion of what the photographer was thinking at the time.

I think the Court of Criminal Appeals will rule agains the defendant, but then it is on the Federal courts.

The defendant in this case is facing 52 years in prison because stacking sentences is allowed under this law.