Articles Posted in freedom of speech

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This week the United States Supreme Court delivered a significant ruling on free speech and the First Amendment.  In an 8-0 ruling ,the Court held that a North Carolina law preventing registered sex offenders from accessing the internet, for the purpose of engaging with social media platforms such as Facebook and Twitter impermissibly restricted free speech in violation of the first amendment.   The case,  known as Packingham v. North Carolina  came about when Mr. Packingham, a registered sex offender, logged on to Facebook and wrote a post expressing gratitude for the dismissal of a traffic citation.

For this he was indicted under the North Carolina law which makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.”  Justice Kennedy wrote the opinion for the Court and he stressed the importance of social media in present day society as the place where we now discuss religion and politics, search for employment, chat with friends and even scheduled events.  Referring to social media as the “modern public square”  the Court held that the North Carolina law was not consistent with the Constitutional guarantee of free speech.

 

How might this impact Texas?  While Texas  criminal statutes do not prohibit a registered sex offender from accessing the internet, state parole laws  most certainly do and the prohibitions are fairly stringent.  In addition, a no internet access condition is sometimes imposed by agreement or by the Court in situations where a registered sex offender is being placed on community supervision.    Though the Texas laws were not directly at issue in Packingham, the Court’s robust interpretation of free speech in this context does call into question the continuing validity of broad laws that prohibit registered sex offenders from generally accessing social media.

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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