The State's Revenge-Porn Arguments, Part 2: Is it Content Based?

 Posted on January 20, 2018 in Uncategorized

(Nobody ever taught me this in school, and perhaps nobody ever told you either: When a compound adjective follows the noun ("the statute is content based") it is not hyphenated; when it precedes the noun ("it is a content-based statute") it is (provided, of course, that the other rules of hyphenation apply).)

Failing to convince the court that section 21.16(b) of the Texas Penal Code does not restrict speech, the State will next argue, in hopes of keeping strict scrutiny from applying, that even if it restrict speech section 21.16(b) does not restrict speech based on its content.

The statute restricts "visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct" but does not restrict visual material depicting other things. That's a content-based restriction.

In Texas, Ex parte Lo and Ex parte Thompson both set forth a test for content-basedness: "If it is necessary to look at the content of the speech in question to decide if the speaker violated the law, then the regulation is content-based." ((That is a test that the United States Supreme Court in City of Cincinnati v. Discovery Network, Inc. described as "common sense."))

You can't determine whether material violates section 21.16(b) without looking at the visual material. So according to the Lo test the statute is a content-based restriction.

But iReed v. Town of Gilbert, Arizona is equally clear: "a speech regulation targeted at specific subject matter is content based." ((That's not to say that a speech regulation not targeted at specific subject matter is not content based. A restriction based on the "function or purpose" of the speech is also content based.)) Because section 21.16(b) is targeted at sexual subject matter, it is content based.