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2015.49: Unlawful Disclosure of Intimate Visual Material in Texas

Mark's Blog: Defending People - Sun, 04/12/2015 - 18:32

House Bills 101, 496, and 603, which I wrote about here and testified against in Austin, have been left pending in committee.

Senate Bill 1135, “UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE VISUAL MATERIAL,” was voted out of the Senate Criminal Justice Committee. (I didn’t go to Austin to testify; I considered my public duty done, and my right to say “I told you so” earned, the first time.) It provides:

(a) In this section:
(1) “Promote” and “sexual conduct” have the meanings assigned by Section 43.25.
(2) “Visual material” has the meaning assigned by Section 43.26.
(b) A person commits an offense if:
(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person engaged in sexual conduct;
(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;
(3) the disclosure of the visual material causes harm to the depicted person; and
(4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:
(A) any accompanying or subsequent information or material related to the visual material; or
(B) information or material provided by a third party in response to the disclosure of the visual material.
(c) A person commits an offense if the person intentionally threatens to disclose, without the consent of the depicted person, visual material depicting another person engaged in sexual conduct and the actor makes the threat to obtain a benefit:
(1) in return for not making the disclosure; or
(2) in connection with the threatened disclosure.
(d) A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection
(b) on an Internet website or other forum for publication that is owned or operated by the person.
(e) It is not a defense to prosecution under this section that the depicted person:
(1) created or consented to the creation of the visual material; or
(2) voluntarily transmitted the visual material to the actor.
(f) It is an affirmative defense to prosecution under Subsection
(b) or
(d) that:
(1) the disclosure or promotion is made in the course of:
(A) lawful and common practices of law enforcement or medical treatment;
(B) reporting unlawful activity; or
(C) a legal proceeding, if the disclosure or promotion is permitted or required by law;
(2) the disclosure or promotion consists of visual material depicting only a voluntary exposure of sexual conduct in a public or commercial setting; or
(3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure or promotion consists of visual material provided by another person.
(g) An offense under this section is a Class A misdemeanor.

….

For this statute to be constitutional, the nonconsensual and harmful disclosure of visual material depicting an identifiable person engaged in sexual conduct in violation of the person’s reasonable expectation of privacy would have to fall into some category of unprotected speech.

The category does not yet exist:

  • Harmful speech is not unprotected, and should not be. We are not a nation of snowflakes who need government protection from hurt feelings.
  • Speech depicting sexual conduct is not unprotected, and should not be.
  • Speech violating privacy and nonconsensual speech about another person are not unprotected, and should not be. The idea that we can control what is said about us is inimical to American ideals of free speech.

Since the speech restricted does not fall into a recognized category of unprotected speech, under current Supreme Court (and Court of Criminal Appeals) jurisprudence this statute does not pass First Amendment muster. Proponents of this law would have to convince the Supreme Court to recognize a new category of historically unprotected speech that covers most of the speech forbidden by the statute. That’s long odds.

I’d like for this bill to pass so that I can make a few bucks, ((Please can we make it a felony?)) and put another notch on my gun, ((What’s the record for getting Texas penal statutes held unconstitutional?)) killing this statute.  But the Senate doesn’t look like it’s in a hurry to vote on it.

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