Volokh Conspiracy: Texas highest criminal court strikes down improper photography statute

Im delighted to report that yesterday the Texas Court of Criminal Appeals handed down Ex parte Thompson (Tex. Ct. Crim. App. Sept. 17, 2014) (8-to-1, with Judge Meyers dissenting without opinion). This was a UCLA First Amendment Amicus Brief Clinic case, in which my student Samantha Booth and I wrote an amicus brief on behalf of the Reporters Committee for Freedom of the Press. (Many thanks again, by the way, to Cam Barker (YetterColeman LLP) for all his help as local counsel.)

The courts opinion is a victory for the right to take photographs in public even when a statute barring such photograph is limited to photography of people without their consent and with intent to arouse or gratify sexual desire, but of course equally when the photographs lack such an intention. The court struck down the Texas improper photography statute, which read,

A person commits an offense if the person:

(1) photographs or by videotape or other electronic means records a visual image of another at a location that is not a bathroom or private dressing room:

(A) without the other persons consent; and

(B) with intent to arouse or gratify the sexual desire of any person.

Heres a quick summary of the courts reasoning:

1. Taking photographs in public places is generally constitutionally protected, because photographs regardless of their artistic merits are generally protected expression, and the act that creates the end product is likewise protected:

The camera is essentially the photographers pen or paintbrush. Using a camera to create a photograph or video is like applying pen to paper to create a writing or applying brush to canvas to create a painting. In all of these situations, the process of creating the end product cannot reasonably be separated from the end product for First Amendment purposes. This is a situation where the regulation of a medium inevitably affects communication itself. We conclude that a persons purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves.

2. This First-Amendment-protected conduct doesnt lose its protection even when the photographer is intending to arouse or gratify sexual desires:

See the rest here:
Volokh Conspiracy: Texas highest criminal court strikes down improper photography statute