No Matter What You Think - The Taking of Photographs is Entitled to First Amendment Protection by Catherine Robb

Finding that the taking of photography is entitled to the same First Amendment protection as photographs themselves, the Texas Court of Criminal Appeals struck down the state's "improper photography or visual recording" statute, a statute that made it a crime to photograph or record someone in a place other than a bathroom or private dressing room without their consent and "with the intent to arouse or gratify the sexual desire of any person." Ex Parte Thompson (Tex. Ct. Crim. App. Sept. 17. 2014)

Ronald Thompson was charged with 26 counts of "improper photography" for taking photographs of women wearing bathing suits at a waterpark. Thompson sought a writ of habeas corpus alleging the section of the statute under which he was charged was facially unconstitutional. The trial court denied his petition, but the San Antonio Court of Appeals reversed, and the prosecuting attorney then appealed to the Texas Court of Criminal Appeals.

Rejecting the state's argument that the statute does not implicate the First Amendment because thetaking of a photograph is conduct and not inherently expressive, the Court found that "a person's purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves[,]" which are protected as inherently expressive works. The Court also rejected the state's argument that the intent element of the statute places it outside of First Amendment protection. As the Court noted, both it and the Texas Supreme Court have previously explained that the First Amendment protects freedom of thought and that "the First Amendment is implicated by 'constitutionally protected speech when that speech is coupled with constitutionally protected thought.'" Banning otherwise protected speech simply because it causes sexual arousal or gratification is the regulation of protected thought and thus, the Court noted, outside of the government's power. The Court also rejected the state's invitation to construe the intent element broadly and held that because the statute only seeks to penalize some non-consensual photography and recording—that done with the intent to arouse or gratify sexual desire—the discrimination is content-based and subject to strict scrutiny.

In evaluating whether the content-based statute could survive strict scrutiny, the Court first noted that it could only be upheld "if it is the least restrictive means of achieving the compelling government interest in question." While acknowledging that the state has a compelling interest in protecting the privacy of those being recorded or photographed, the Court found that the statute did not contain the least restrictive means of doing so, noting that the statute contains no language addressing privacy concerns but rather "applies broadly to any non-consensual [photography], as long as it is accompanied by the requisite sexual intent."

Finally, although it had already found the statute to be an invalid content-based restriction, the Court went on to address whether the unconstitutional nature of the statute was substantial enough to warrant a finding of facial invalidity. Noting that the breadth of the statute had been accurately characterized as "breathtaking," the Court found the section facially unconstitutional.