Texas Appellate Court Strikes Down State’s Revenge Porn Law

Friday, April 20, 2018 - 11:00 am PT
texas revenge porn right of publicity first amendment unconstitutional

This week a Texas Court of Appeals in Ex Parte Jones struck down the state’s law making it a criminal offense to “disclose intimate visual material” without the permission of the person depicted when that person expected the image to remain “private.”  Texas Penal Code § 21.16 (b)

The appellate court held that the law was facially unconstitutional and violated the First Amendment. The court accurately concluded that this was a content-based speech restriction to which strict scrutiny applied, and a presumption of unconstitutionality. The court rightly concluded that the law limited speech that was not obscene, and was therefore speech fully protected by the First Amendment.  A similar Texas law was struck down in 2014 that focused on the recording of intimate images without permission. Ex Parte Ronald Thompson, 442 S.W.3d 325 (Ct. Crim. App. 2014)

Although the court suggested that there was a compelling interest at stake―protecting the expectation of privacy of the person depicted and protecting that person from suffering harm from the dissemination of intimate images―the statute was not narrowly tailored and was overbroad.

The court was particularly concerned that a defendant could be found criminally liable for sharing an image without knowing the circumstances under which it was taken or shared. The court gave the following telling hypothetical:

“Adam and Barbara are in a committed relationship. One evening, in their home, during a moment of passion, Adam asks Barbara if he can take a nude photograph of her. Barbara consents, but before Adam takes the picture, she tells him that he must not show the photograph to anyone else. Adam promises that he will never show the picture to another living soul, and takes a photograph of Barbara in front of a plain, white background with her breasts exposed.

A few months pass, and Adam and Barbara break up after Adam discovers that Barbara has had an affair. A few weeks later, Adam rediscovers the topless photo he took of Barbara. Feeling angry and betrayed, Adam emails the photo without comment to several of his friends, including Charlie. Charlie never had met Barbara and, therefore, does not recognize her. But he likes the photograph and forwards the email without comment to some of his friends, one of whom, unbeknownst to Charlie, is Barbara’s coworker, Donna. Donna recognizes Barbara and shows the picture to Barbara’s supervisor, who terminates Barbara’s employment.” Slip Op. at 7.

The court’s analysis suggests that the law might have survived constitutional scrutiny if it were narrowed to circumstances in which the person disclosing the images had “knowledge of the circumstances giving rise to he depicted person’s privacy expectation.” Some additional standard of culpability might be appropriate too, such as intending to cause the person depicted harm. Without such limitations the court concluded that the law was overbroad and not narrowly tailored.

This decision does not suggest that all revenge porn laws will be struck down, and even suggests ways that Texas could resurrect the law by more carefully drafting it. There could still be further review of the decision, but the concerns raised by the court and over the breadth of the drafted law are likely to carry the day with higher courts as well.

This decision also does not limit the applicability of other civil laws, particularly Texas’s right of publicity and privacy laws. Texas allows a plaintiff to bring such a claim if there is an appropriation of the plaintiff’s “likeness for the value associated with it,” the “plaintiff is identifiable” and the defendant received “some advantage or benefit” from the use.  This broad common law right could apply to many instances in which intimate images are publicly disseminated, as the law does not limit uses to those in commercial speech.

Right of publicity laws are less likely to be subject to strict scrutiny as courts, including those in Texas considering these criminal prohibitions on the taking and dissemination of intimate images, have noted. See, e.g., Ex Parte Ronald Thompson, 442 S.W.3d 325 (Ct. Crim. App. 2014). This provides a good reminder that, as I discuss in my book The Right of Publicity: Privacy Reimagined for a Public World, because the right of publicity is framed as an intellectual property right it has been subject to lesser First Amendment scrutiny.

The Book

Privacy Reimagined For A Public World

THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World

This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.

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