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.
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13 comments:
My conclusion is that lawmakers have way too much time on their hands. As evident here ; also a recent example in New York state. A debate over whether or not to make yogurt the official state snack.
Tortilla chips and salsa was designated the official state snack by the 78th Legislature in 2003 at the request of second-grade students in Mission. State Sport. Rodeo was named the state sport of Texas by the 75th Legislature in 1997.
Grits please dont forget that first real challenge to this law was by a prose litigant (nyabwa) back in 2011. The Texas 14th court of appeals ruled against nyabwa in 2011 and the CCA declined review. Nyabwa took a 2254 in federal court that was denied in september 2012 upon which he appealed to the 5th circuit court. The 5th circuit found nyabwa's arguments very credible and remanded the case back to US District court (4-12-cv-01152). This case believe it or not is not yet decided (probably because nyabwa is a prose indigent).
The san antonio judge in striking down 21.15 makes numerous references to nyabwa's case. Grits the point I am making is when its all said and done dont forget to give mr nyabwa his due credit. Very rarely do you see a prose indigent defendant mounting a successful constitutional challenge.
Thanks for that 9:37. It's not that I'd forgotten Nyabwa's role, I didn't know. I'd only tracked this since the Fourth Court's ruling last year so wasn't aware of the details of Nyabwa's case. Will look at it and rectify that when the CCA's final ruling comes out.
Anonymous at 9:37 further suggests that Grits notifies Mark Bennett of nyabwa's pending case. I think Mr Bennett will be very interested in Nyabwa's case.
Some of these guys like to install a secret camera in a woman's dressing room and enjoy playing the film (or whatever) at their leisure. I agree-nothing wrong with this.
@6:05, if "improper photography" were written narrowly enough to apply to that but not taking pictures of people in swimsuits at Seaworld, which was the situation in the Fourth Court of Appeals case, you might have a point. But it's not. So you don't.
A person commits an offense if the person:
(2) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is a bathroom or private dressing room:
(A) without the other person's consent; and
(B) with intent to:
(i) invade the privacy of the other person.
Kind of a punk move on your part, 7:52. You conveniently omitted the parts under First Amendment scrutiny:
(b) A person commits an offense if the person:
(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location THAT IS NOT a bathroom or private dressing room: (emphasis added)
(A) without the other person's consent; and
(B) with intent to arouse or gratify the sexual desire of any person;
This law is clearly content based and a chill on free speech. It is difficult at best to run through the prongs of the law while trying to compose a street shot. Part of the shame of it is the Texas ACLU supported the passage of this law because their director allowed her feminist beliefs to trump the first amendment mission of the ACLU. It was heralded as providing freedom from bathroom photography. It would have been fine if they left out the part not dealing with bathrooms.
Ron do you have any proof that ACLU Texas Director had a hand in this unconstitutional Texas law?
Regarding the ACLU, passage of the improper photography law was listed on their list of objectives, specifically to provide freedom from bathroom photography. Anyone familiar with first amendment issues would have known this law as designed to discourage photographing people in public without their permission.
Grits there has been movement on the nyabwa improper photography case in federal court (4-12-cv-01152). The attorney general filed a motion for summary judgement on 6/18 to which nyabwa issued an interesting response. He lashed out at the texas 14th court of appeal decision calling it a bizarre political decision. He made a very convincing case as to why the decision was more than "incorrect and unreasonable"--which was his burden to merit federal review. The most interesting point however was his challenge to the AG to explain how this law qualifies as a voyeurism law given that invasion of privacy is not in its text. It would be fair if the magistrate judge would compell the AG to answer that question but given that he is pro se and indigent, he may be railroaded by the republican magistrate--another political decision. By the way he also claimed harassment because his case has lagged for too long. Maybe Grits could post the AG motion and nyabwa's response for your viewers to decide--Grits reports you decide!!!!!
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