The state’s highest criminal court recently held a portion of the Texas “Improper Photography” statute unconstitutional. The Court struck down the section of that law that prohibited visually recording or taking a photograph of another without the subject’s consent, and with the intent to arouse or gratify the sexual desire of any person.
On September 17, 2014 the Texas Court of Criminal Appeals announced its decision in the case of Ex Parte Ronald Thompson. In Thompson, The Court held by an 8-1 majority that the taking of photographs and visual recordings of another without their consent is expressive conduct implicating the First Amendment guarantee of free speech, and therefore beyond the authority of the Government to regulate. This opinion specifically invalidates section 21.15(b)(1) of the Texas Penal Code. The First Amendment protections serve to invalidate the law even though, the Court said, the act of taking a photograph or visually recording another without consent was only criminalized under 21.15(b)(1) where the actor’s intent in making the recording or taking the photograph was done so with the intent to arouse or gratify the sexual desire of any person. As stated by the Court in this case:
banning otherwise protected expression on the basis that it produces