The State's Embarrassing Revenge-Porn Briefs

 Posted on May 15, 2018 in Uncategorized

(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 with the person's intimate parts exposed or 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.

The State Prosecuting Attorney, the Attorney General, and now the Galveston County District Attorney have all argued that the Tyler Court of Appeals in Jones should have interpreted subsection (b)(2) of section 21.16 of the Texas Penal Code to mean that a person commits an offense if

1. the visual material was created under circumstances in which the depicted person had a reasonable expectation of privacy, or

2. the defendant obtained the visual material under circumstances in which the depicted person had a reasonable expectation of privacy.

The Galveston County District Attorney argues:

It is far more reasonable that-just after Ex parte Thompson had been decided-the Texas Legislature intended the privacy phrase to apply to both the defendant obtaining the harmful visual material and to the defendant or someone else creating the harmful visual material.

While this is true, it is also how the Jones court interpreted the statute:

under the disjunctive language used in Section 21.16(b)(2), Charlie nonetheless is culpable despite his having no knowledge of the circumstances surrounding the photograph's creation or the depicted person's privacy expectation arising thereunder.

What the state really wants to say is that section 21.16(b) applies only if

1. the defendant created the visual material under circumstances in which the depicted person had a reasonable expectation of privacy, or

2. the defendant obtained the visual material under circumstances in which the depicted person had a reasonable expectation of privacy.

The State Prosecuting Attorney argues:

By applying the "under circumstances" clause to both obtaining and creating the material, it requires that the disclosing person know or have notice that the depicted person had a reasonable expectation of privacy in the material.

And the Attorney General argues:

Subsection (b)(2) instead requires the fact-finder to proceed in two steps. First, determine the circumstances under which the accused obtained or created the images. Second, determine "under [those] circumstances" (a) whether the depicted person subjectively intended to keep the visual material private and (b) whether this intention, if it exists, was objectively reasonable.

That is not how grammar works. While "under circumstances" is a postpositive modifier that applies to both disjunctive elements, "by the person" is not. Nor is it a prepositive modifier. By its placement between "obtained" and "created," "by the person" applies only to the former.

If the Legislature had intended the State's interpretation, it could just as easily have made "by the person" part of the postpositive modifier, writing:

(2) the visual material was obtained by the person or created by the person under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private....

It did not.

(All three state briefs also argue that the revenge-porn statute is subject only to intermediate scrutiny under the secondary-effects doctrine, which doctrine has been applied by the Supreme Court only in cases involving the regulation of bricks-and-mortar sexually oriented businesses.)