Monique Rathbun v. Scientology: Leave To File Supplemental Authority

No.
03-14-00199-CV
______________________________________
COURT OF APPEALS
THIRD JUDICIAL DISTRICT OF TEXAS
AUSTIN, TEXAS
______________________________________
CHURCH OF SCIENTOLOGY INTERNATIONAL, et al.
Appellants,
v.
MONIQUE RATHBUN,
Appellee.
______________________________________
MOTION FOR LEAVE TO FILE
NOTICE OF SUPPLEMENTAL AUTHORITY OF APPELLANT
CHURCH OF SCIENTOLOGY INTERNATIONAL
______________________________________
On Appeal from the 207th Judicial District Court
of Comal County, Texas
Trial Court No. C-2013-1082B
Hon. Dib Waldrip of the 433rd Judicial District Court, Presiding
______________________________________
Of Counsel:
Eric M. Lieberman
RABINOWITZ, BOUDIN, STANDARD,
KRINSKY &LIEBERMAN PC
45 Broadway, Suite 1700
New York, New York 10006
Telephone: 212.254.1111
Facsimile: 212.674.4614
elieberman@rbskl.com
Thomas S. Leatherbury
State Bar No. 12095275
Marc A. Fuller
VINSON &ELKINS LLP
Trammell Crow Center
2001 Ross Avenue, Suite 3700
Dallas, Texas 75201
Telephone: 214.220.7792
Facsimile: 214.999.7792
tleatherbury@velaw.com
mfuller@velaw.com
ACCEPTED
03-14-00199-CV
2788956
THIRD COURT OF APPEALS
AUSTIN, TEXAS
10/10/2014 10:26:10 AM
J EFFREY D. KYLE
CLERK
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
10/10/2014 10:26:10 AM
JEFFREY D. KYLE
Clerk
Ricardo G. Cedillo
Isaac J. Huron
Les J. Strieber III
DAVIS, CEDILLO &MENDOZA, INC.
McCombs Plaza, Suite 500
755 E. Mulberry Avenue
San Antonio, Texas 78212
Telephone: 210.822.6666
Facsimile: 210.822.1151
rcedillo@lawdcm.com
ihuron@lawdcm.com
lstreiber@lawdcm.com
George H. Spencer, Jr.
CLEMENS &SPENCER
112 E. Pecan Street, Suite 1300
San Antonio, Texas 78205-1531
Telephone: 210.227.7121
Facsimile: 210.227.0732
spencer@clemens-spencer.com
Attorneysfor Appellant Churchof ScientologyI nternational
-1-
TO THE HONORABLE COURT OF APPEALS:
Appellant Church of Scientology International (Church) requests leave to
file a Notice of Supplemental Authority addressing two issues that arose at oral
argument and a new decision of the Texas Court of Criminal Appeals.
First, this Notice provides the citation for a case, Headley v. Church of
Scientology International, No. CV 09-3987 DSF (FFMx), 2010 U.S. Dist. LEXIS
40533, *8-10 (C.D. Cal. April 2, 2010), referenced by counsel for the Church
during oral argument.
Second, the Notice provides the citation to the Texas civil stalking statute,
Chapter 85 of the Texas Civil Practice & Remedies Code, in response to Plaintiffs
new allegation during oral argument that Defendants actions constituted
stalking.
Third, the Notice draws the Courts attention to the Texas Court of Criminal
Appeals decision in Ex parte Thompson, No. PD-1371-13, 2014 WL 4627231
(Tex. Crim. App. Sept. 17, 2014), holding that Texass improper photography
statute, Section 21.15(b)(1) of the Texas Penal Code, violates the First Amendment
to the extent that it proscribes the taking of photographs and the recording of visual
images. Id. at *1.
Wherefore, the Church prays that this Court grant this Motion for Leave to
File Notice of Supplemental Authority of Appellant Church of Scientology, which
-2-
is attached hereto as Exhibit 1, and grant any such other relief to which it may be
justly entitled.
Respectfully submitted,
/s/ Thomas S. Leatherbury
Marc A. Fuller
VINSON &ELKINS L.L.P.
Dallas, Texas 75201-2975
Telephone: 214.220.7792
Facsimile: 214.999.7792
mfuller@velaw.com
Ricardo G. Cedillo
Isaac J. Huron
Les J. Strieber III
Telephone: 210.822.6666
Facsimile: 210.822.1151
rcedillo@lawdcm.com
ihuron@lawdcm.com
-3-
CLEMENS &SPENCER
Telephone: 210.227.7121
Facsimile: 210.227.0732
Of Counsel:
Eric M. Lieberman
New York, NY 10006
Telephone: 212.254.1111
Facsimile: 212.674.4614
Attorneysfor Appellant Churchof
ScientologyI nternational
CERTIFICATE OF CONFERENCE
On October 8-9, 2014, I conferred with Appellees counsel, Leslie Hyman,
by email. She stated that she does not oppose the filing of a notice of
supplemental authority that simply gives the Court additional citations, but does
oppose[ ] . . . additional briefing.
-4-
CERTIFICATE OF SERVICE
The undersigned certifies that on the 10th day of October, 2014, the
foregoing Motion for Leave to File Notice of Supplemental Authority for
Appellant Church of Scientology International was served on the following
attorneys in accordance with the requirements of the Texas Rules of Appellate
Procedure via electronic filing or email.
Ray B. Jeffrey
JEFFREY &MITCHELL, P. C.
2631 Bulverde Road, Suite 105
Bulverde, TX 78163
Marc F. Wiegand
THE WIEGAND LAWFIRM, P.C.
434 N. Loop 1604 West,
Suite 2201
San Antonio, TX 78232
Elliott S. Cappuccio
PULMAN, CAPPUCCIO PULLEN
&BENSON, LLP
2161 N.W. Military Hwy., #400
San Antonio, TX 78213
Lamont A. Jefferson
HAYNES &BOONE LLP
San Antonio, TX 78205-1540
J. Iris Gibson
HAYNES &BOONE LLP
600 Congress Ave., Suite 1300
Austin, TX 78701
Jonathan H. Hull
REAGAN BURRUS
401 Main Plaza, Suite 200
New Braunfels, TX 78130
O. Paul Dunagan
SARLES &OUIMET
370 Founders Square
900 Jackson Street
Dallas, TX 75202
Bert H. Deixler
KENDALL BRILL KLIEGER
10100 Santa Monica Blvd.,
Suite 1725
Los Angeles, CA 90067
Stephanie S. Bascon
LAW OFFICE OF STEPHANIE S. BASCON,
PLLC
297 W. San Antonio Street
New Braunfels, TX 78130
Wallace B. Jefferson
Rachel Ekery
ALEXANDER DUBOSE JEFFERSON
&TOWNSEND, LLP
515 Congress Avenue, Suite 2350
Austin, TX 78701
US 3012784v.2
EXHIBIT 1
No. 03-14-00199-CV
______________________________________
COURT OF APPEALS
THIRD JUDICIAL DISTRICT OF TEXAS
AUSTIN, TEXAS
______________________________________
CHURCH OF SCIENTOLOGY INTERNATIONAL, et al.
Appellants,
v.
MONIQUE RATHBUN,
Appellee.
______________________________________
NOTICE OF SUPPLEMENTAL AUTHORITY OF APPELLANT
CHURCH OF SCIENTOLOGY INTERNATIONAL
______________________________________
On Appeal from the 207th Judicial District Court
of Comal County, Texas
Trial Court No. C-2013-1082B
Hon. Dib Waldrip of the 433rd Judicial District Court, Presiding
______________________________________
Of Counsel:
Eric M. Lieberman
Telephone: 212.254.1111
Facsimile: 212.674.4614
Marc A. Fuller
VINSON &ELKINS LLP
Trammell Crow Center
Dallas, Texas 75201
Telephone: 214.220.7792
Facsimile: 214.999.7792
mfuller@velaw.com
Ricardo G. Cedillo
Isaac J. Huron
Les J. Strieber III
Telephone: 210.822.6666
Facsimile: 210.822.1151
rcedillo@lawdcm.com
ihuron@lawdcm.com
lstreiber@lawdcm.com
CLEMENS &SPENCER
Telephone: 210.227.7121
Facsimile: 210.227.0732
Attorneysfor Appellant Churchof ScientologyI nternational
-1-
Appellant Church of Scientology International (Church) hereby submits
this Notice of Supplemental Authority to address two issues that arose at oral
argument and a new decision of the Texas Court of Criminal Appeals, Ex parte
Thompson, No. PD-1371-13, 2014 WL 4627231 (Tex. Crim. App. Sept. 17, 2014).
First, in answering the Courts questions regarding the commercial speech
exemption of the TCPA, counsel for the Church noted that the United States
District Court for the Central District of California had held that the Church was a
religious institution and therefore could not be held liable for alleged violations of
federal and state labor laws based on its staffs performance of various religious
duties and responsibilities such as auditing. Counsel offered to provide the
citation for this case, which is Headley v. Church of Scientology International, No.
CV 09-3987 DSF (FFMx), 2010 U.S. Dist. LEXIS 40533, *8-10 (C.D. Cal. April
2, 2010).
1
Counsel noted that this case undermines Plaintiffs reliance on Tony &
Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985), which
involved a religious organizations operation of a number of commercial
businesses, which include[d] service stations, retail clothing and grocery outlets,
hog farms, roofing and electrical construction companies, a recordkeeping
company, a motel, and companies engaged in the production and distribution of
candy. Id. at 292.
1
A copy of this case is attached to this Notice as Exhibit A.
-2-
Second, during oral argument, Plaintiffs counsel for the first time on appeal
stated that Defendants actions constituted stalking, in support of Plaintiffs
claim of intentional infliction of emotional distress. To the extent Plaintiff is
attempting to inject a new claim or theory into this case, this is untimely and
improper. Plaintiff has not alleged a claim for stalking, and it is clear that she
has no viable claim. The Texas civil stalking statute is found in Chapter 85 of the
Texas Civil Practice & Remedies Code.
2
The statute requires a showing that the
defendant violated a restraining order prohibiting harassment behavior or that the
defendant threatened bodily injury on the claimant or to commit an offense
against the claimant, a member of the claimants family, or the claimants
property. Tex. Civ. Prac. & Rem. Code 85.003(a). The criminal stalking statute
mirrors the latter language of the civil statute. Tex. Penal Code 42.07, 42.072.
Plaintiff did not try to, and cannot, make this showing. The civil statute also
provides a defense for those, like Defendants, who are engaged in conduct that
consisted of activity in support of constitutionally or statutorily protected rights.
Tex. Civ. Prac. & Rem. Code 85.005. Plaintiffs failure to allege a stalking
claim, as well as her inability to establish the essential elements of such a claim
against Defendants, further supports Defendants argument that Plaintiffs
intentional infliction of emotional distress claim should be dismissed as an
2
A copy of the statute is attached to this Notice as Exhibit B. Plaintiff cited neither the civil
stalking statute nor the criminal harassment or stalking statutes in her Brief of Appellee.
-3-
improper gap filler. Plaintiff now seeks to allege a non-viable stalking claim as
the basis for her claim of outrageous conduct, which she cannot do under Texas
law. See Churchs Brief of Appellant at 48.
Third, the Church calls the Courts attention to the Texas Court of Criminal
Appeals recent decision in Ex parte Thompson, holding that Texass improper
photography statute, Section 21.15(b)(1) of the Texas Penal Code, violates the
First Amendment to the extent that it proscribes the taking of photographs and the
recording of visual images.
3
See 2014 WL 4627231 at *1. Much of the Courts
reasoning is based on some of the same basic constitutional principles that are at
issue here, including that photographs and visual recordings are inherently
expressive and that the process of creating the end product cannot reasonably be
separated from the end product for First Amendment purposes. In light of these
constitutional principles, the Court conclude[d] 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. Id.
at *5-6. Similarly, the activities of the Squirrel Busters in creating and filming
their documentary and videos of the Rathbuns, which are the major focus of
Plaintiffs claims based on the Squirrel Busters, are covered by the TCPA. See
Churchs Brief of Appellant at 26-27.
3
A copy of this case is attached as Exhibit C to this Notice.
-4-
Respectfully submitted,
Marc A. Fuller
Vinson & Elkins L.L.P.
Dallas, Texas 75201-2975
Telephone: 214.220.7792
Facsimile: 214.999.7792
mfuller@velaw.com
Ricardo G. Cedillo
Isaac J. Huron
Les J. Strieber III
Davis, Cedillo & Mendoza, Inc.
Telephone: 210.822.6666
Facsimile: 210.822.1151
rcedillo@lawdcm.com
ihuron@lawdcm.com
-5-
Clemens & Spencer
Telephone: 210.227.7121
Facsimile: 210.227.0732
Of Counsel:
Eric M. Lieberman
Rabinowitz, Boudin, Standard,
Krinsky & Lieberman PC
Telephone: 212.254.1111
Facsimile: 212.674.4614
Attorneysfor Appellant Churchof
ScientologyI nternational
US 3012530v.2
EXHIBIT A
Page 1
5 of 6 DOCUMENTS
Claire Headley v. Church of Scientology International, et al.
Case No. CV 09-3987 DSF (FFMx)
UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF
CALIFORNIA
2010U.S. Dist. LEXI S40533
April 2, 2010, Decided
April 2, 2010, Filed
SUBSEQUENT HISTORY: Motion denied by Headley
v. Church of Scientology Int'l, 2010 U.S. Dist. LEXIS
62800 (C.D. Cal., June 23, 2010)
PRIOR HISTORY: Headley v. Church of Scientology
Int'l, 2009 U.S. Dist. LEXIS 131766 (C.D. Cal., Aug. 12,
2009)
COUNSEL: [*1] Attorneys for Plaintiffs: Not Present.
Attorneys for Defendants: Not Present.
JUDGES: Honorable DALE S. FISCHER, United States
District Judge.
OPINION BY: DALE S. FISCHER
OPINION
CIVIL MINUTES - GENERAL
Proceedings: (In Chambers) Order GRANTING
Defendants' Motion for Partial Summary Judgment
(Docket No. 48)
Defendants move for summary judgment on Plain-
tiff's first cause of action.
1
For the reasons noted below,
the motion is GRANTED.
1 Plaintiff's first cause of action is a Cal. Bus.
& Prof. Code 17200 claim, and is premised on
alleged violations of federal and state labor laws.
(Second Am. Compl. PP 42-45
I. FACTUAL BACKGROUND
2
2 The Court relies only on undisputed facts,
facts as to which the Court finds the "dispute" to
be invalid, and facts as to which the Court denies
any evidentiary objections. Here, most of Plain-
tiff's "disputes" to Defendants' individual pro-
posed uncontroverted facts are actually objections
in disguise, lack merit, and do not create genuine
issues of fact.
Plaintiff was raised in the Scientology religion.
(Defs.' Reply Statement of Uncontroverted Facts and
Conclusions of Law ("SOUF") P 50.) At the age of 16,
she joined the Sea Org, an organization within the
Church of Scientology whose members [*2] must make
a symbolic commitment to serve for a billion years. (Id.
at PP 41, 52.) Sea Org members live communally, eat in
common dining areas, are provided basic necessities, and
are expected to devote at least two and a half hours a day
to religious study. (Id. at P 44.) Defendants' staff all be-
long to the Sea Org. (Id. at PP 39, 41.)
Plaintiff was a Sea Org member from July 1991 to
January 2005. (Id. at P 54.) During her time in the group,
she became a "Class IV auditor." (Id. at P 56.) Scientol-
ogy auditing is a one-on-one session between a trained
individual called an auditor and a Scientology parishion-
er. The auditor, according to Scientology, helps people
locate areas of spiritual distress. (Id. at P 18.)
After joining the Sea Org, Plaintiff worked at the
Hollywood Guaranty Building in a management role
responsible for obtaining Scientology converts. (Id. at P
58.) From 1992 to 1996, Plaintiff worked at Golden Era
Productions, an unincorporated division of Defendant
Page 2
2010 U.S. Dist. LEXIS 40533, *
Church of Scientology International, Inc. ("CSI"), where
she taught classes about Scientology to members and
non-members. (Id. at PP 32, 60-72.) CSI is known as the
"Mother Church" within Scientology, and its "ecclesias-
tical [*3] authority extends to overseeing the proper
administration of all Scientology churches and missions
worldwide . . . ." (Id. at P 32.)
After her stint at Golden Era, Plaintiff worked at the
Religious Technology Center ("RTC") from 1996 to
2004.
3
(Id. at P 73.) In March 1996, she was assigned to
train at the Church of Scientology Flag Service Organi-
zation ("FSO"), which trains staff from all Scientology
organizations about how to promote and spread Scien-
tology. (Id. at PP 78-79.) From March to May 1996,
Plaintiff supervised the administration of a program to
train supervisors at the FSO for the release of the "Gold-
en Age of Tech," which made many revisions to most
Scientology courses. (Id. at PP 80-81.) While at the FSO,
she also oversaw a "Flag Metering Course," where stu-
dents were taught how to use the E-meter, which is used
as part of Scientology's auditing process. (Id. at PP 20,
83.)
3 The RTC "is responsible for insuring the or-
thodox practice of Scientology and the eternal
preservation, transmission and application of all
Scientology doctrine and practices contained in
[its] Scriptures." (Defs.' Reply SOUF P 37.) Both
the RTC and CSI are recognized as churches by
the I.R.S. (Id. at P 47.)
In [*4] 1997, Plaintiff returned to the Church of
Scientology's International Base in Gilman Hot Springs,
California, where she was named Director of the Au-
thorization, Verification, and Correction Division. (Id. at
PP 84-85.) She worked in this capacity from February
1997 to March 2000. (Id. at P 85.) In this role, she over-
saw the correcting of any mistakes in items or products
before they left the International Base, and made sure
staff members attended their required job training cours-
es. (Id. at PP 87-88.) She also engaged in "cramming,"
which is a staff correction process developed by Scien-
tology founder L. Ron Hubbard. (Id. at P 89.) In March
2000, Plaintiff was put in the role of Internal Exec at
RTC, where she served until September 2004. (Id. at P
90.) This position required her to exercise quality control
over issues and programs at RTC. (Id. at P 91.) In Sep-
tember 2004, she was transferred back to the Church of
Scientology International, Inc., but she left the church
before completing the transition to that new position. (Id.
at P 96.)
II. LEGAL STANDARD
Courts may grant summary judgment in a party's
favor "upon all or any part" of a party's claim. Fed. R.
Civ. P. 56(a) (emphasis [*5] added). The standard and
procedures for a motion for partial summary judgment
are the same as for summary judgment of a claim. See
Delta Sav. Bank v. United States, 265 F.3d 1017, 1021
(9th Cir. 2001).
Summary judgment shall be granted where "the
pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(c). The
moving party has the burden of demonstrating the ab-
sence of a genuine issue of fact for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505,
91 L. Ed. 2d 202 (1986). If the moving party satisfies this
burden, the party opposing the motion must set forth
specific facts, through affidavits or admissible discovery
materials, showing that there exists a genuine issue for
trial. Id. at 323-24; Fed. R. Civ. P. 56(e). A non-moving
party who bears the burden of proof at trial as to an ele-
ment essential to its case must make a showing sufficient
to establish a genuine dispute of fact with respect to the
existence of that element of the case or be subject to
summary judgment. See Celotex Corp., 477 U.S. at 322.
The "mere existence of some [*6] alleged factual
dispute between the parties will not defeat an otherwise
properly supported summary judgment motion; the re-
quirement is that there be no genuine issue of material
fact." Anderson, 477 U.S. at 247-48. An issue of fact is a
genuine issue if it reasonably can be resolved in favor of
either party. Anderson, 477 U.S. at 250-51. "[M]ere dis-
agreement or the bald assertion that a genuine issue of
material fact exists" does not preclude summary judg-
ment. See Harper v. Wallingford, 877 F.2d 728, 731 (9th
Cir. 1989). Moreover, "legal memoranda and oral argu-
ment are not evidence, and they cannot by themselves
create a factual dispute sufficient to defeat a summary
judgment motion where no dispute otherwise exists."
British Airways Bd. v. Boeing Co., 585 F.2d 946, 952
(9th Cir. 1978), cert denied, 440 U.S. 981, 99 S. Ct.
1790, 60 L. Ed. 2d 241 (1979). "The mere existence of a
scintilla of evidence in support of the [non-movant's]
position will be insufficient; there must be evidence on
which the jury . . . could find by a preponderance of the
evidence that the [non-movant] is entitled to a verdict . . .
." Anderson, 477 U.S. at 252. "Only disputes over facts
that might affect the outcome of the suit under the gov-
erning [*7] law will properly preclude the entry of
summary judgment." Id. at 248.
"[A] district court is not entitled to weigh the evi-
dence and resolve disputed underlying factual issues."
Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1161
(9th Cir. 1992). Rather, "the inferences to be drawn from
the underlying facts . . . must be viewed in the light most
favorable to the party opposing the motion." United
Page 3
2010 U.S. Dist. LEXIS 40533, *
States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993,
8 L. Ed. 2d 176 (1962).
III. DISCUSSION
"The interplay between the First Amendment's Free
Exercise and Establishment Clauses creates an exception
to an otherwise fully applicable statute if the statute
would interfere with a religious organization's employ-
ment decisions regarding its ministers." Alcazar v. Corp.
of the Catholic Archbishop of Seattle, 598 F.3d 668,
2010 WL 917200, *1 (9th Cir. 2010) (upholding lower
court's decision to grant judgment on the pleadings for
defendants).
4
This constitutionally-compelled rule,
known as the "ministerial exception," "applies as a mat-
ter of law across statutes, both state and federal, that
would interfere with the church-minister relationship."
598 F.3d 668, Id. WL at *3. To determine whether an
employee is a minister under the ministerial [*8] excep-
tion, courts in this circuit "use a functional approach . . .,
which examines the function of the position rather than
relying solely on ordination or 'categorical notions of
who is or is not a minister." 598 F.3d 668, Id. WL at *5
(internal quotation marks omitted). In this circuit, a per-
son qualifies as a minister under this exception if she:
"(1) is employed by a religious institution; (2) was cho-
sen for the position based largely on religious criteria,
and (3) performs some religious duties and responsibili-
ties . . . ." 598 F.3d 668, Id. WL at *6. "This test pre-
serves the functional approach and recognizes that 'min-
isters' generally perform religious ceremonies and du-
ties." Id. "Additionally, . . . [it] enables a district court to
determine who is a 'minister' earlier in the proceedings
and minimizes the procedural entanglement of [ ] de-
tailed factual determination[s]." Id.
4 The Ninth Circuit issued Alcazar after Plain-
tiff's opposition was due, so the Court has re-
viewed her sur-reply, which discusses Alcazar, as
part of its analysis of this motion.
Here, even if Plaintiff could establish the alleged
federal and state labor law violations, there is no dispute
that she: (1) was employed by a religious institution;
[*9] (2) was chosen for her position based largely on
religious criteria; and (3) performed religious duties and
responsibilities. She worked for Defendants, which both
are institutions within the Church of Scientology.
5
She
also was able to hold the positions she had with Defend-
ants based largely on religious criteria, namely her com-
mitment to 1,000,000,000 years of service to Scientology
and the lifestyle constraints that come with being a
member of the Sea Org. See 598 F.3d 668, id. 2010 WL
917200, *6 (deciding this factor was met where plaintiff
was in a job available only to seminarians of the Catholic
Church). Finally, as part of her duties, she performed
various religious duties and responsibilities, most notably
"auditing" and "cramming." For these reasons, the Court
finds that the undisputed material facts show that even if
Plaintiff could convince a finder of fact that the alleged
federal and state labor violations took place, the ministe-
rial exception would apply. Thus, her first cause of ac-
tion fails.
5 Although Plaintiff contends that CSI and
RTC are not religious institutions in her
sur-reply, she has not offered any evidence that
reasonably calls into question the fact that CSI is
considered [*10] to be the "Mother Church"
within Scientology, or that RTC is responsible for
insuring the orthodox practice of the religion.
Thus, she has failed to make a showing sufficient
to establish a genuine dispute of fact about
whether Defendants are religious institutions.
IV. CONCLUSION
Defendants' motion is GRANTED.
IT IS SO ORDERED.
EXHIBIT B
Page 1
2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Vernon's Texas Statutes and Codes Annotated Currentness
Civil Practice and Remedies Code (Refs & Annos)
Title 4. Liability in Tort
Chapter 85. Liability for Stalking (Refs & Annos)
85.001. Definitions
In this chapter:
(1) Claimant means a party seeking to recover damages under this chapter, including a plaintiff, counter-
claimant, cross-claimant, or third-party plaintiff. In an action in which a party seeks recovery of damages under
this chapter on behalf of another person, claimant includes both that other person and the party seeking recovery
of damages.
(2) Defendant includes any party from whom a claimant seeks recovery of damages under this chapter.
(3) Family has the meaning assigned by Section 71.003, Family Code.
(4) Harassing behavior means conduct by the defendant directed specifically toward the claimant, including
following the claimant, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the
claimant.
85.002. Liability
A defendant is liable, as provided by this chapter, to a claimant for damages arising from stalking of the claimant by
the defendant.
85.003. Proof
(a) A claimant proves stalking against a defendant by showing:
(1) on more than one occasion the defendant engaged in harassing behavior;
(2) as a result of the harassing behavior, the claimant reasonably feared for the claimant's safety or the safety of a
member of the claimant's family; and
(3) the defendant violated a restraining order prohibiting harassing behavior or:
Page 2
(A) the defendant, while engaged in harassing behavior, by acts or words threatened to inflict bodily injury on the
claimant or to commit an offense against the claimant, a member of the claimant's family, or the claimant's
property;
(B) the defendant had the apparent ability to carry out the threat;
(C) the defendant's apparent ability to carry out the threat caused the claimant to reasonably fear for the claimant's
safety or the safety of a family member;
(D) the claimant at least once clearly demanded that the defendant stop the defendant's harassing behavior;
(E) after the demand to stop by the claimant, the defendant continued the harassing behavior; and
(F) the harassing behavior has been reported to the police as a stalking offense.
(b) The claimant must, as part of the proof of the behavior described by Subsection (a)(1), submit evidence other
than evidence based on the claimant's own perceptions and beliefs.
85.004. Damages
A claimant who prevails in a suit under this chapter may recover actual damages and, subject to Chapter 41, ex-
emplary damages.
85.005. Defense
It is a defense to an action brought under this chapter that the defendant was engaged in conduct that consisted of
activity in support of constitutionally or statutorily protected rights.
85.006. Cause of Action Cumulative
The cause of action created by this chapter is cumulative of any other remedy provided by common law or statute.
END OF DOCUMENT
EXHIBIT C
Westl
S.W.Sd , 2014 W L 4627231 (Tex.Crim.App.)
(Cite as: 2014 W L 4627231 (Tex.Crim.App.))
Page 1
Only the Westlaw citation is currently available.
NOTICE: THIS OPINION HAS NOT BEEN RE-
LEASED FOR PUBLICATION IN THE PERMA-
NENT LAW REPORTS. UNTIL RELEASED, IT IS
SUBJECT TO REVISION OR WITHDRAWAL.
Court of Criminal Appeals of Texas.
Ex parte Ronald THOMPSON, Appellant.
No.PD-1371-13.
Sept. 17,2014.
Meyers, J., dissented.
West Headnotes
[1] Constitutional Law 92 ^1497
92 Constitutional Law
92XVIII Freedom of Speech, Expression, and
Press
92XVIII(A) In General
92XVIII(A)1 In General
92kl497 k. Conduct, protection of. Most
Cited Cases
Background: Defendant, who was charged with 26
counts of improper photography, filed pre-trial ap-
plication for writs of habeas corpus, challenging con-
stitutionality of Improper Photography or Visual Re-
cording Statute. The 379th Judicial District Court,
Bexar County, Ronnie Rangel, J., denied relief. De-
fendant appealed. The Court of Appeals, Marialyn
Barnard, J., 414 S.W.3d 872,reversed and remanded.
State sought review.
Holdings: The Court of Criminal Appeals, Keller,
P.J., held that:
(1) photographs and visual recordings are inherently
expressive, and, thus, protected by the First Amend-
ment;
(2) purposeful creation of photographs and visual
recordings is entitled to the same First Amendment
protection as the photographs and visual recordings
themselves;
(3) strict scrutiny applied to Statute;
(4) Statute violated the First Amendment; and
(5) Statute was overbroad.
Affirmed.
Under the test for determining whether conduct
that is not inherently expressive possesses sufficient
communicative elements to bring the First Amend-
ment into play, conduct implicates the First Amend-
ment if: (1) there was an intent to convey a particu-
larized message, and (2) the likelihood was great that
the message would be understood by those who
viewed it; but, some conduct is inherently expressive,
and when that is the case, the particularized-message
test does not apply. U.S.C.A. Const.Amend. 1.
[2] Constitutional Law 92 ^?1577
Press
92XVm(A)3 Particular Issues and Appli-
cations in General
92kl577 k. Photography and photo-
graphs. Most Cited Cases
Constitutional Law 92 ^189 2
Page 2
S.W.3d , 2014 WL 4627231 (Tex.Crim.App.)
(Cite as: 2014 WL 4627231 (Tex.Crim.App.))
Press
92XVIII(N) Entertainment
92kl892 k. Motion pictures and videos.
Most Cited Cases
Photographs and visual recordings are inherently
expressive, and, thus, protected by the First Amend-
ment; so, there is no need to conduct a case-specific
inquiry into whether these forms of expression convey
a particularized message. U.S.C.A. Const.Amend. 1.
Press
92XVII1(A) In General
92XVIH(A)1 In General
92k 1490 k. In general. Most Cited Cases
Constitutional Law 92 ^1 8 3 0
Press
92XVIII(I) Harassment and Threats
92kl 829 Threats
92kl830 k. In general. Most Cited Cases
Press
92XVIII(A)3 Particular Issues and Appli-
cations in General
92kl577 k. Photography and photo-
graphs. Most Cited Cases
Constitutional Law 92 =^1892
Press
92XVffl(N) Entertainment
92kl892 k. Motion pictures and videos.
Most Cited Cases
A person's purposeful creation of photographs
and visual recordings is entitled to the same First
Amendment protection as the photographs and visual
recordings themselves. U.S.C.A. Const.Amend. 1.
[4] Constitutional Law 92 ^1 4 9 0
When the intent is to do something that, if ac-
complished, would be unlawful and outside First
Amendment protection, such as the intent to threaten
or intimidate, such an intent might help to eliminate
First Amendment concerns; but, when the intent is
something that, if accomplished, would constitute
protected expression, such an intent cannot remove
from the ambit of the First Amendment conduct that is
otherwise protected expression. U.S.C.A.
Const.Amend. 1.
15] Constitutional Law 92 ^2 1 8 6
Press
92XVIH(Y) Sexual Expression
92k2186 k. Indecency in general. Most
Cited Cases
Constitutional Law 92 =^2190
Press
92XVII1(Y) Sexual Expression
92k2189 Obscenity in General
92k2190 k. In general. Most Cited Cases
Page 3
Sexual expression which is indecent, but not ob-
scene, is protected by the First Amendment; even
some obscene sexual expression enjoys First
Amendment protection if it occurs solely within the
confines of the home. U.S.C.A. Const.Amend. 1.
Press
92XVIII(Y) Sexual Expression
92k2181 k. Sexual activity in general. Most
Cited Cases
Banning otherwise protected expression on the
basis that it produces sexual arousal or gratification is
the regulation of protected thought; such a regulation
is outside the government's power under the First
Amendment. U.S.C.A. Const.Amend. 1.
from entering the home, without violating the First
Amendment, by penalizing its importation and dis-
tribution; government may ban even personal posses-
sion of child pornography because such possession is
directed toward the evils of child exploitation and is
not merely a paternalistic interest in regulating the
defendant's mind. U.S.C.A. Const.Amend. 1.
92X First Amendment in General
92X(A) In General
92kl 150 k. In general. Most Cited Cases
The government cannot premise legislation on the
desirability of controlling a person's private thoughts
without violating the First Amendment. U.S.C.A.
Const.Amend. 1.
92X(B) Particular Issues and Applications
92kl 172 Sex in General
92kll74 k. Obscenity in general. Most
Cited Cases
Constitutional Law 92 ^1175
92kll75 k. Pornography. Most Cited
Cases
92X(A) In General
First Amendment freedoms are most in danger
when the government seeks to control thought or to
justify its laws for that impermissible end. U.S.C.A.
Const.Amend. 1.
[10] Constitutional Law 92 =^1124
92VII Constitutional Rights in General
92VIi(B) Particular Constitutional Rights
92kl 124 k. Freedom of thought. Most Cited
Cases
Government may attempt to prevent obscenity Constitutional Law 92 =^1490
Page 4
92XVin Freedom of Speech, Expression, and
Press
The right to think is the beginning of freedom;
speech must be protected from the government
through the First Amendment because speech is the
beginning of thought. U.S.C.A. Const.Amend. 1.
[11] Constitutional Law 92 =^994
92VI Enforcement of Constitutional Provisions
92VI(C) Determination of Constitutional
Questions
92VI(C)3 Presumptions and Construction as
to Constitutionality
92k994 k. Avoidance of constitutional
questions. Most Cited Cases
The federal Constitution affords the states broad
authority to narrowly construe a statute to avoid a
constitutional violation.
92XX Separation of Powers
92XX(C) Judicial Powers and Functions
92XX(C)2 Encroachment on Legislature
92k2472 Making, Interpretation, and
Application of Statutes
92k2474 k. Judicial rewriting or re-
vision. Most Cited Cases
Courts may not rewrite a statute that is not readily
subject to a narrowing construction because such a
rewriting constitutes a serious invasion of the legisla-
tive domain and would sharply diminish the legisla-
ture's incentive to draft a narrowly tailored statute in
the first place.
[13] Statutes 361 ^>1138
361 Statutes
361 III Construction
361111(D) Particular Elements of Language
361kll38 k. Departing from or varying
language of statute. Most Cited Cases
Imposing a judicial construction of a term can be
dangerous because that construction can cross over to
other areas of the law in which the term is used.
[14] Statutes 361 =?1138
361 Statutes
361 III Construction
361111(D) Particular Elements of Language
361kll38 k. Departing from or varying
language of statute. Most Cited Cases
Courts should be circumspect about using a nar-
rowing construction that actually broadens the mean-
ing of a term.
[15] Constitutional Law 92 ^>1518
Press
92XV1II(A) In General
92kl516 Content-Based Regulations or
Restrictions
92kl 518k. Strict or exacting scrutiny;
compelling interest test. Most Cited Cases
Strict scrutiny applies to First Amendment anal-
Page 5
S.W.3d, 2014 WL 4627231 (Tex.Crim.App.)
ysis when a statute constitutes a content-based regu-
lation of expression. U.S.C.A. Const.Amend. 1.
Press
92XVI1I(A) In General
92XVII1(A)1 In General
92kl506 k. Strict or exacting scrutiny;
Under strict scrutiny of potential First Amend-
ment violation, a regulation of expression may be
upheld only if it is narrowly drawn to serve a com-
pelling government interest. U.S.C.A. ConstAmend.
1.
92X(A) In General
92kll56 k. Strict or heightened scrutiny;
compelling state interest. Most Cited Cases
A regulation is narrowly drawn under strict scru-
tiny of potential First Amendment violation if it uses
the least restrictive means of achieving the govern-
ment interest. U.S.C.A. Const.Amend. 1.
Press
92XVU1(A) In General
92kl504 k. Exercise of police power;
relationship to governmental interest or public wel-
fare. Most Cited Cases
In cases involving expressive conduct, which is
not inherently expressive, but can be expressive on the
facts of a given case, the O'Brien test applies, under
which: (1) the regulation must further an important or
substantial government interest, (2) the government
interest must be unrelated to the suppression of free
expression, and (3) incidental restrictions on First
Amendment freedoms must be no greater than essen-
tial to the furtherance of the government interest.
U.S.C.A. Const.Amend. 1.
Press
92XVIU(A)1 In General
92kl511 Content-Neutral Regulations
or Restrictions
92kl514 k. Narrow tailoring re-
quirement; relationship to governmental interest. Most
Cited Cases
Constitutional Law 92 ^1 5 1 5
Press
92XVIll(A) In General
or Restrictions
92kl515 k. Existence of other chan-
nels of expression. Most Cited Cases
Regulation of the time, place, or manner of ex-
pression is permissible under the First Amendment if
it is: (1) content neutral, (2) serves a significant gov-
ernment interest, (3) is narrowly tailored, and (4)
) 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 6
leaves open ample alternative channels of communi-
cation. U.S.C.A. ConstAmend. 1.
Press
92kl508 Time, Place, or Manner Re-
strictions
92kl510 k. Reasonableness. Most
Cited Cases
The test for reasonable time, place, and manner
restrictions applies even to pure speech or inherently
expressive conduct. U.S.C.A. Const.Amend. 1.
Press
92XVin(A) In General
92kl504 k. Exercise of police power;
relationship to governmental interest or public wel-
fare. Most Cited Cases
Under intermediate scrutiny of potential First
Amendment violation, the regulation need not be the
least speech-restrictive means of advancing the gov-
ernment's interests. U.S.C.A. Const.Amend. 1.
92X(A) In General
92kll58 k. Narrowing, requirement of.
Most Cited Cases
Under intermediate scrutiny of potential First
Amendment violation, the requirement of narrow
tailoring is satisfied if the regulation promotes a sub-
stantial governmental interest that would be achieved
less effectively absent the regulation. U.S.C.A.
ConstAmend. 1.
[23] Constitutional Law 92 ^1 1 58
92X(A) In General
92kll58 k. Narrowing, requirement of.
Most Cited Cases
The regulation is considered narrowly tailored for
purposes of intermediate-scrutiny of potential First
Amendment violation, so long as the means chosen
are not substantially broader than necessary to achieve
the government's interest. U.S.C.A. Const.Amend. 1.
[24] Constitutional Law 92 =>1514
Press
or Restrictions
92kl514 k. Narrow tailoring re-
quirement; relationship to governmental interest. Most
Cited Cases
Constitutional Law 92 CRISIS
Press
Page 7
92XVII1(A) In General
Restrictions
If a law is content based, then strict scrutiny ap-
plies to potential First Amendment violation, but if it
is content neutral, intermediate scrutiny applies.
U.S.C.A. ConstAmend. 1.
92XVII1 Freedom of Speech, Expression, and
Press
Restrictions
92kl517 k. In general. Most Cited
Cases
Generally, a law that is being examined for po-
tential First Amendment violation is considered to be
content based if it distinguishes favored speech from
disfavored speech on the basis of the ideas or views
expressed. U.S.C.A. Const.Amend. 1.
Press
Restrictions
Cases
If it is necessary in examining potential First
Amendment violation to look at the content of the
speech in question to decide if the speaker violated the
law, then the regulation is content-based. U.S.C.A.
ConstAmend. 1.
Press
or Restrictions
Cases
In some situations, a regulation that is being
examined for potential First Amendment violation can
be deemed content neutral on the basis of the gov-
ernment interest that the statute serves, even if the
statute appears to discriminate on the basis of content;
these situations involve government regulations aimed
at the secondary effects of expressive activity.
Press
or Restrictions
Cases
A regulation that serves purposes unrelated to the
content of expression is deemed neutral in First
Amendment analysis, even if it has an incidental effect
PageS
on some speakers or messages, but not others.
Press
92XVin(A)l In General
or Restrictions
Cases
When a regulation can be deemed content neutral
on the basis of the government interest that the statute
serves, the government regulation at issue need only
be justified without reference to the content of the
regulated speech in order not to violate the First
Amendment. U.S.C.A. Const.Amend. 1.
Press
92XVni(A)l In General
or Restrictions
Cases
Ordinarily, the government's purpose in enacting
the statute that is being examined for potential First
Amendment violation is not controlling of whether the
statute is content-neutral. U.S.C.A. Const.Amend. 1.
[31] Constitutional Law 92 ==>1517
Press
Restrictions
Cases
While a content-based purpose may be sufficient
in certain circumstances to show that a regulation that
is being examined for potential First Amendment
violation is content based, it is not necessary to such a
showing in all cases; nor will the mere assertion of a
content-neutral purpose be enough to save a law
which, on its face, discriminates based on content.
Press
92k2184 k. Depictions or portrayals of sex
or nudity in general. Most Cited Cases
Constitutional Law 92 ^2225
Press
92k2224 Motion Pictures and Videos
92k2225 k. In general. Most Cited Cases
Strict scrutiny applied to Improper Photography
or Visual Recording Statute that penalized only a
subset of non-consensual image and video producing
activity, that which was done with the intent to arouse
or gratify sexual desire; by discriminating on the basis
Page 9
S.W.Sd , 2014 WL 4627231 (Tex.Crim.App.)
of the sexual thought that underlied the creation of
photographs or visual recordings, the statute dis-
criminated on the basis of content, and it was the
sexual content of the expression, not any secondary
effect of taking photographs or making visual re-
cordings, that the statute sought to prevent. U.S.C.A.
Const.Amend. 1; V.T.C.A., Penal Code 21.15(b)(1).
Press
Restrictions
Cases
Const.Amend. 1.
92XVni Freedom of Speech, Expression, and
Press
Restrictions
Privacy constitutes a compelling government in-
terest, in strict scrutiny analysis of content-based
statute under the First Amendment, when the privacy
interest is substantial and the invasion occurs in an
intolerable manner. U.S.C.A. Const.Amend. 1.
Content-based regulations are presumptively in-
valid under the First Amendment; it is rare that a reg-
ulation restricting speech because of its content will
ever be permissible. U.S.C.A. Const.Amend. 1.
92X1 Right to Privacy
92XI(B) Particular Issues and Applications
Press
92XVm(A)l In General
Restrictions
Even when a compelling government interest is
shown in a statute that is being examined for potential
First Amendment violation, the existence of adequate
content-neutral alternatives undercuts significantly
any defense of such content-based statute. U.S.C.A.
Substantial privacy interests are invaded in an
intolerable manner when a person is photographed
without consent in a private place, such as the home,
or with respect to an area of the person that is not
exposed to the general public, such as up a skirt.
Press
92k2184 k. Depictions or portrayals of sex
or nudity in general. Most Cited Cases
Page 10
Obscenity 281 ^>112(8)
281 Obscenity
2811 In General
281kl07 Constitutional, Statutory, and Regu-
latory Provisions
281kll2 Validity of Statutes, Ordinances,
and Regulations
281kll2(8) k. Photographs and videos
in general. Most Cited Cases
Improper Photography or Visual Recording Stat-
ute that prohibited the photography or videotaping,
recording, broadcasting, or transmitting a visual image
of another at a location that was not a bathroom or
private dressing room without the other's consent and
with intent to arouse or gratify the sexual desire of any
person did not satisfy strict scrutiny, and, thus, vio-
lated the First Amendment; statute was content-based,
and less restrictive alternatives would adequately
protect the substantial privacy interests that could
sometimes be threatened by non-consensual photog-
raphy. U.S.C.A. Const.Amend. 1; V.T.C.A., Penal
Code 21.15(b)(1).
92X(A) In General
92k 1162 Overbreadth in General
92kl 164 k. Substantial impact, necessity
of. Most Cited Cases
The overbreadth of a statute must not only be real
for it to violate the First Amendment, but substantial
as well, judged in relation to the statute's plainly le-
gitimate sweep. U.S.C.A. Const.Amend. 1.
92X(A) In General
92kl 164 k. Substantial impact, necessity
of. Most Cited Cases
To be held unconstitutional under the overbreadth
doctrine pursuant to the First Amendment, a statute
must be found to prohibit a substantial amount of
protected expression. U.S.C.A. Const.Amend. 1.
92X(A) In General
92kll65 k. Use as last resort; sparing
use. Most Cited Cases
The overbreadth doctrine is strong medicine to be
employed with hesitation and only as a last resort in a
First Amendment challenge. U.S.C.A. Const.Amend.
1.
92X(A) In General
The danger that the statute will be unconstitu-
tionally applied in violation of the First Amendment
must be realistic in order for the overbreadth doctrine
to apply. U.S.C.A. Const.Amend. 1.
[42] Constitutional Law 92 ^116 3
Page 11
S.W.3d -, 2014 WL 4627231 (Tex.Crim.App.)
92X(A) In General
92kl 162 Overbreadth in General
A statute is likely to be found overbroad under the
First Amendment if the criminal prohibition it creates
is of alarming breadth. U.S.C.A. Const.Amend. 1.
Obscenity 281 =^112(8)
Const.Amend. 1; V.T.C.A., Penal Code 21.15(b)(1).
[44] Constitutional Law 92 =>1140
92IX Overbreadth in General
92kl 140 k. In general. Most Cited Cases
Although Court of Criminal Appeals must look to
whether the improper reach of the statute is real, as
well as substantial, in determining whether statute is
overbroad, it would not uphold an unconstitutional
statute merely because the Government promised to
use it responsibly.
West Codenotes
Held UnconstitutionalTex. Penal Code Ann.
21.15(b)(1) Donald H. Flanary, III, San Antonio, TX,
for Appellant.
281 Obscenity
2811 In General
281kl07 Constitutional, Statutory, and Regu-
latory Provisions
281kll2 Validity of Statutes, Ordinances,
and Regulations
281kll2(8) k. Photographs and videos
in general. Most Cited Cases
Improper Photography or Visual Recording Stat-
ute that prohibited the photography or videotaping,
recording, broadcasting, or transmitting a visual image
of another at a location that was not a bathroom or
private dressing room without the other's consent and
with intent to arouse or gratify the sexual desire of any
person was overbroad and, thus, violated the First
Amendment; breadth of statute was breathtaking,
applying to any non-consensual photograph, occurring
anywhere, as long as the actor had an intent to arouse
or gratify sexual desire, and could have applied to an
entertainment reporter who took a photograph of an
attractive celebrity on a public street. U.S.C.A.
Patrick Ballantyne, Assistant District Attorney, San
Antonio, TX, Lisa C. McMinn, State's Attorney,
Austin, for The State.
KELLER, P.J., delivered the opinion of the Court in
which PRICE, WOMACK, JOHNSON, KEASLER,
HERVEY, COCHRAN and ALCALA, JJ., joined.
*1 The "improper photography or visual record-
ing" statute makes it a crime to, among other things,
photograph or record by electronic means a visual
image of another person under certain circumstanc-
es.
FN1
Subsection (b)(1) of the statute makes such acts
a crime if: (1) the person being photographed or rec-
orded is not in a bathroom or private dressing room,
(2) the photograph or recording of the person is made
without that person's consent, and (3) the photograph
or recording is made with the intent to arouse or grat-
ify the sexual desire of any person.
2
We hold that, to
the extent that it proscribes taking photographs and
recording visual images, Subsection (b)(1) of the
statute is facially unconstitutional in violation of the
freedom of speech guarantee of the First Amend-
Page 12
ment.
FN3
Consequently, we affirm the judgment of the
Court of Appeals.
I. BACKGROUND
A. The Charges
Appellant stands charged with twenty-six counts
of improper photography or visual recording under
Texas Penal Code 21.15(b)(1). Each count of the
indictment alleges that appellant, "with intent to
arouse or gratify the sexual desire of THE DE-
FENDANT, did by electronic means record another ...
at a location that was not a bathroom or private
dressing room." Each count further specifies the name
of an ".avi" file that was recorded. Some of the counts
contain additional information regarding the subject
matter and location of the recording. For instance,
several counts describe "unknown female[s]" with
various colors of bathing suits or bikinis "in" or "at"
"a water park." ^
Appellant filed a pretrial application for a writ of
habeas corpus, in which he alleged that the statute on
which his prosecution was based is facially unconsti-
tutional in violation of the First Amendment.
5
The
trial court denied the application, and appellant ap-
pealed.
B. Appeal
The Fourth Court of Appeals held that
21.15(bXl) is void on its face in violation of the First
Amendment.
6
The appellate court analyzed the issue
in three parts: (1) whether the First Amendment was
implicated by the statute, (2) whether the statute was
content based or content neutral, and (3) whether the
statute satisfied intermediate scrutiny.
7
First, the
court concluded that the First Amendment was im-
plicated because "the statute not only restricts an in-
dividual's right to photograph, a form of speech pro-
tected by the First Amendment, ... but the statute also
restricts a person's thoughts, which the U.S. Supreme
Court has held is 'wholly inconsistent with the phi-
losophy of the First Amendment.' "
8
Second, the
court concluded that the statute was content neutral
because it "does not favor one type of photograph over
another."
9
Finally, the court concluded that the
intermediate-scrutiny standard was not satisfied be-
cause the statute reached "a substantial amount of
constitutionally protected conduct."
10
As a conse-
quence of its holding, the court of appeals reversed the
judgment of the trial court and remanded the case for
entry of an order dismissing the prosecution.
11
C. Discretionary Review
1. State's Arguments
*2 On discretionary review, the State contends
that the First Amendment is not even implicated by the
statute because the act of photography is conduct and
is not inherently expressive. According to the State's
brief, "Photography is essentially nothing more than
making a chemical or electronic record of an ar-
rangement of refracted electromagnetic radiation
(light) at a given period of time." At oral argument, the
State also contended that the act of pushing the button
on the camera to take a picture was not necessarily
communicative. Rather, relying upon Texas v. John-
son,
12
the State contends that taking a picture may
become communicative, if there is an intent to convey
a particularized message, but that such an inquiry can
be conducted only in the context of an "as applied"
challenge with a developed record.
Relying in part upon our prior decision in Scott v.
State,
13
the State also contends that the improp-
er-photography statute does not implicate the First
Amendment because the elements of specific intent
and lack of consent limit the scope of the regulated
conduct to that which invades the privacy of another in
an essentially intolerable manner. The State argues
that the specific-intent requirement negates any First
Amendment implications because the statute "regu-
lates a person's intent in creating a visual record and
not the contents of the record itself."
14
The State
further contends that the lack-of-consent requirement
means that the statute does not apply to a photograph
of a person in public as long as the photograph is of an
area of that person that was exposed to the public. The
Page 13
S.W.3d -, 2014 WL 4627231 (Tex.Crim.App.)
State argues that any person who appears in public and
exposes a certain part of the body to the public has
necessarily consented to that part being photographed,
and therefore, the improper-photography statute
would not apply. But, the State reasons, if the person is
not in public, or the photograph is of an area of the
person that is not exposed to the publicsuch as the
use of an X-Ray camera that can see through clothing
or a photograph taken up a woman's skirtthen the
improper-photography statute would criminalize such
behavior if done with the requisite intent. This con-
struction of the term "consent," the State argues,
would negate any First Amendment implications of
the statute.
In the alternative, the State argues that, even if the
First Amendment is implicated, the improp-
er-photography statute constitutes a reasonable con-
tent-neutral restriction that serves legitimate and im-
portant government interests. The State argues that the
statute is content neutral because it "does not limit the
substantive content of visual recordings nor favor one
type of photograph over another." The State further
argues that the statute serves the important govern-
ment interest of protecting privacy by "protecting
individuals from invasive covert photography" and
"protecting individuals from having their images un-
consensually exploited for the sexual gratifications of
others."
*3 Further, the State argues that a statute may not
be struck down on overbreadth grounds merely be-
cause it may apply to some protected speech. Rather,
the State contends, a statute must apply to a substantial
amount of protected conduct before it may be invali-
dated, and the State contends that the limiting ele-
ments of specific intent and non-consent prevent the
improper-photography statute from reaching a sub-
stantial amount of protected conduct.
2. Arguments of Appellant and the Amicus
Appellant argues that photography is expressive.
He contends that the recording of an image is expres-
sive because it is always done to capture an event that
the recorder thought was important. He further con-
tends that the State's characterization of taking a
photograph as conduct is overly simplistic and would
apply to publishing a newspaper or painting a mas-
terpiece. Relying upon Kaplan v. California
15
ap-
pellant contends that the First Amendment protects
more than mere speech, protecting also pictures, films,
paintings, drawings, and engravings. He also contends
that the improper-photography statute prohibits not
merely the act of photography but photography with
intent to arouse or gratify sexual desire, and the latter
is expressive.
Appellant further contends that the improp-
er-photography statute impermissibly penalizes not
only the expressive act of photography but also the
right to receive the public expressions of others. He
contends that the State's interpretation of the statute
would "punish those who receive such information
with their mind in the proverbial gutter" and argues
that "such a stance is undoubtedly the stuff of Orwel-
lian 'thought-crime' rather than the reasonable ad-
vancement of an important governmental interest."
Appellant also contends that the Scott case relied
upon by the State is distinguishable because the im-
proper-photography statute applies even to photo-
graphs taken in public, where no privacy interest is
present. Assuming arguendo that the statute is content
neutral, appellant contends that it does not satisfy
intermediate scrutiny because it applies even when
privacy interests are not implicated. While the legis-
lature may have a legitimate interest in prohibiting
"peeping torn" and "up-skirt" photography, appellant
contends that the language of the statute "utterly fails
to achieve that interest because it fails to distinguish
those situations from merely photographing a girl in a
skirt walking down the street." Appellant argues that
the "street photographer, the entertainment reporter,
patrons of the arts, attendees to a parade or a pep-rally,
[and] even the harmless eccentric are all at risk of
incarceration under a plain reading of this statute."
Page 14
The amicus curiae
16
makes a number of argu-
ments in favor of its view that the part of the statute at
issue here is unconstitutional, but of particular interest
is its contention that the statute is actually a con-
tent-based restriction on expression. The amicus ar-
gues that the statute discriminates based on content
because it singles out images of "another," which is
defined elsewhere as a person, as opposed to "an
animal, a landscape, or a building." The amicus also
states that the statute "covers only those photographs
that have the intended primary effect of causing sexual
arousal, and it is the content of speech that would
cause such arousal." According to the amicus, then,
the proper standard of review is strict scrutiny (rather
than intermediate scrutiny), and the amicus contends
that the statutory provision at issue fails to satisfy that
standard.
*4 At oral argument, the amicus
17
suggested
that the State's broad interpretation of the term "con-
sent" might be a sufficient narrowing construction of
the statute to avoid a First Amendment violation. If the
improper-photography statute applied only when
privacy interests were truly involved, such as the
"peeping torn" and "up-skirt" scenarios, then the
amicus would agree that the statute would not violate
the First Amendment. The amicus said that saving the
statute in this manner would be possible only if this
Court were to agree to construe the term "consent" in
the manner that the State suggests.
II. ANALYSIS
A. The Statute and Appellant's Challenge
The "Improper Photography and Visual Record-
ing" statute at issue provides, in relevant part:
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 lo-
cation that is not a bathroom or private dressing
room:
(A) without the other person's consent; and
(B) with intent to arouse or gratify the sexual de-
FN1S
sire of any person.
A facial challenge to the constitutionality of a
statute that defines the offense charged may be raised
by means of a pre-trial application for a writ of habeas
corpus.
FK19
B. Is the First Amendment Implicated?
The First Amendment provides that "Congress
shall make no law ... abridging the freedom of
speech."
20
The First Amendment right to freedom
of speech applies to the states by virtue of the Four-
teenth Amendment.
21
We must first determine
whether that right to freedom of speech is implicated
in this case.
1. The Expressive Nature of Photographs and Visual
Recordings
[I] The State relies heavily upon the test for de-
termining whether conduct that is not inherently ex-
pressive "possesses sufficient communicative ele-
ments to bring the First Amendment into play."
22
Under that test, conduct implicates the First Amend-
ment if (1) there was an intent to convey a particular-
ized message, and (2) the likelihood was great that the
message would be understood by those who viewed
it.
23
j ^
t e s t w a s a
ppij
e(
j
t 0
fl
a
g burning in Texas v.
Johnson because that conduct is not inherently ex-
pressive.
24
But some conduct is inherently expres-
sive, and when that is the case, the particular-
ized-message test does not apply.
23
In Hurley, the
Supreme Court found that parades are inherently ex-
pressive and that there is no need to isolate a particu-
larized message being sent by the marchers.
26
The
Court remarked that, if a particularized message were
always a necessary condition for invoking the First
Amendment, then constitutional protection "would
Page 15
never reach the unquestionably shielded painting of
Jackson Pollock, music of Arnold Schoenberg, or
Jabberwocky verse of Lewis Carroll."
27
The painting example is telling, because photo-
graphs are much like paintings for communicative
purposes, at least when a person is consciously in-
volved in making the photograph.
28
In Kaplan v.
California, the Supreme Court explained that it "has
applied similarly conceived First Amendment stand-
ards to moving pictures, to photographs, and to words
in books."
29
The Supreme Court further mentioned
"pictures, films, paintings, drawings, and engravings"
in the same breath as the "oral utterance and the
printed word" in describing the protection conferred
by the First Amendment.
30
Even in the context of
obscenity and child pornography, the Supreme Court
has not questioned the expressive nature of visual
images, saying that laws directed at the dissemination
of child pornography "run the risk of suppressing
protected expression."
31
The Court has referred to
books and films as "traditional forms of expression,"
32
and to the transmission of cable television pro-
gramming as "speech alone."
33
The Supreme Court
has also addressed the First Amendment implications
of photographs and visual recordings in the depicting
of "virtual child pornography,"
34
animal cruelty,
35
and money
36
*5 Relying in part upon Hurley and Kaplan, a
number of lower courts have held that the First
Amendment fully protects visual art,
37
and photo-
graphs and video recordings in particular,
38
and that
the particularized-message test does not apply in those
contexts.
39
The Tenth Circuit has recognized some
conflict among the federal circuits regarding the outer
boundaries of purely expressive works,
40
and the
Second Circuit may have retreated from its earlier
expansive view of those boundaries, though the Sec-
ond Circuit still takes the position that certain
itemssuch as photographsare always sufficiently
expressive to trigger First Amendment review.
41
The Fifth Circuit has noted that, in Hurley, the
Supreme Court referred solely to great works of art
and had not elaborated on the extent of First
Amendment protection for visual non-speech objects
or artworks.
42
The object in question in Kleinman
was a junked car, and the Fifth Circuit found any
expressive component of that object to be "at best
secondary."
43
We agree with the Fifth Circuit's
conclusion that Hurley is not applicable to a junked
car because it is not inherently expressive. However,
to the extent that Kleinman might be read as saying
that Hurley's statement about paintings applies only to
great works of art, such a view would appear to be at
odds with language from later Supreme Court cases
that suggest that even valueless works are constitu-
tionally protected:
Crudely violent video games, tawdry TV shows,
and cheap novels and magazines are no less forms
of speech than The Divine Comedy, and restrictions
upon them must survive strict scrutiny.... Even if we
can see in them nothing of any possible value to
society, they are as much entitled to the protection
of free speech as the best of literature.
44
Most of what we say to one another lacks "religious,
political, scientific, educational, journalistic, his-
torical, or artistic value" (let alone serious value),
but it is still sheltered from Government regulation.
Even "[w]holly neutral futilities ... come under the
protection of free speech as fully as do Keats' poems
or Donne's sermons."
FN43
[2] The inherently expressive nature of pictures is
reflected by the fact that phrases like "a picture is
worth a thousand words" and "every picture tells a
story" are considered cliches. We conclude that pho-
tographs and visual recordings are inherently expres-
sive, so there is no need to conduct a case-specific
inquiry into whether these forms of expression convey
a particularized message.
Page 16
2. The Expressive Nature of Creating Photographs
and Visual Recordings
If photographs and visual recordings are inher-
ently expressive, what about the act of creating pho-
tographs and visual recordings? If the end product is
inherently expressive, can the act that creates the end
product be mere conduct that is expressive only if it
meets the particularized-message test?
*6 In addressing the constitutionality of re-
strictions on video games, the Supreme Court con-
cluded that it makes no difference in the First
Amendment analysis whether government regulation
applies to "creating, distributing, or consuming"
speech.
46
The Seventh Circuit and the Supreme
Court of Illinois have held that making an audio-visual
recording "is necessarily included with the First
Amendment's guarantee... as a corollary of the right to
disseminate the resulting recording."
47
The Ninth
Circuit has held that the process of creating a tattoo is
as much speech as the tattoo itself.
48
And several
courts have held that the First Amendment includes
the right of citizens to photograph or video record the
conduct of police officers.
49
In support of its holding, the Seventh Circuit
concluded that laws "enacted to control or suppress
speech may operate at different points in the speech
process"
50
and that there is "no fixed First
Amendment line between the act of creating speech
and the speech itself." The Ninth Circuit ex-
plained why it makes no sense to draw a First
Amendment line between an inherently expressive
end product and the creation of that end product:
[N] either the Supreme Court nor our court has ever
drawn a distinction between the process of creating
a form of pure speech (such as writing or painting)
and the product of these processes (the essay or the
artwork) in terms of the First Amendment protec-
tion afforded. Although writing and painting can be
reduced to their constituent acts, and thus described
as conduct, we have not attempted to disconnect the
end product from the act of creation. Thus, we have
not drawn a hard line between the essays John Peter
Zenger published and the act of setting the type. The
process of expression through a medium has never
been thought so distinct from the expression itself
that we could disaggregate Picasso from his brushes
and canvas, or that we could value Beethoven
without the benefit of strings and woodwinds. In
other words, we have never seriously questioned
that the processes of writing words down on paper,
painting a picture, and playing an instrument are
purely expressive activities entitled to full First
Amendment protection.
52
[3] The camera is essentially the photographer's
pen or paintbrush. Using a camera to create a photo-
graph or video is like applying pen to paper to create a
writing or applying brush to canvas to create a paint-
ing. 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 inevi-
tably affects communication itself."
53
We conclude
that a person's purposeful creation of photographs and
visual recordings is entitled to the same First
Amendment protection as the photographs and visual
recordings themselves.
3. Intent
We next address the State's argument that the in-
tent element of the statute places the otherwise ex-
pressive activity of photography and visual recording
outside the protection of the First Amendment. We
have recognized that the mere existence of an intent
element does not by itself eliminate First Amendment
concerns posed by a statute;
54
it is the specific type
of intent that matters.
55
In Texas v. Johnson, for
example, the flag-burning statute contained an intent
element, but, if anything, the intent element exacer-
bated the First Amendment concerns.
56
*7 [4]L5][6][7][8][9][10] When the intent is to do
something that, if accomplished, would be unlawful
Page 17
and outside First Amendment protection, such as the
intent to threaten or intimidate, such an intent might
help to eliminate First Amendment concerns.
57
But
when the intent is something that, if accomplished,
would constitute protected expression, such an intent
cannot remove from the ambit of the First Amendment
conduct that is otherwise protected expression.
58
The Supreme Court and this Court have both ex-
plained that the First Amendment protects freedom of
thought.
59
In Ex parte Lo, we explained that the First
Amendment is implicated by "constitutionally pro-
tected speech when that speech is coupled with con-
stitutionally protected thought."
so
The intent at
issue in Lothe intent to arouse or gratify sexual
desireis the exact same intent at issue in the present
case.
61
The State in Lo made the same argument that
the State makes here, and we rejected it.
62
As the
Supreme Court has explained, "Sexual expression
which is indecent but not obscene is protected by the
First Amendment,"
63
and even some obscene sexual
expression enjoys First Amendment protection if it
occurs solely within the confines of the home.
64
Of
course, the statute at issue here does not require that
the photographs or visual recordings be obscene, be
child pornography, or even be depictions of nudity,
nor does the statute require the intent to produce
photographs or visual recordings of that nature. Ban-
ning otherwise protected expression on the basis that it
produces sexual arousal or gratification is the regula-
tion of protected thought,
65
and such a regulation is
outside the government's power:
The government cannot constitutionally premise
legislation on the desirability of controlling a per-
son's private thoughts. First Amendment freedoms
are most in danger when the government seeks to
control thought or to justify its laws for that im-
permissible end. The right to think is the beginning
of freedom, and speech must be protected from the
government because speech is the beginning of
thought"
66
As we did in Lo, we reject the State's argument
that the intent element of the statute removes it from
the ambit of the First Amendment.
67
4. Consent
The State also contends that the statute's re-
quirement that the photography or visual recording
occur "without consent" is sufficient to save the stat-
ute if the word "consent" is construed broadly enough.
The State argues that people who go out in public
necessarily consent to some measure of public view
and that the boundaries of that consent are dictated by
the circumstances.
[11] [12] The federal constitution affords the
states broad authority to narrowly construe a statute to
avoid a constitutional violation.
68
We have held that
Texas courts have a duty to employ a reasonable
narrowing construction for that purpose.
69
But this
Court and the Supreme Court have both held that a
narrowing construction should be employed only if
the statute is readily susceptible to one.
70
We may
not rewrite a statute that is not readily subject to a
narrowing construction because such a rewriting con-
stitutes a serious invasion of the legislative domain
71
and would sharply diminish the legislature's in-
centive to draft a narrowly tailored statute in the first
place.
72
*8 We have indicated that a law "is not suscepti-
ble to a narrowing construction when its meaning is
unambiguous."
73
This statement accords with our
longstanding practice of giving effect to the plain
meaning of a statute unless the language is ambiguous
or the plain meaning leads to absurd results that the
legislature could not have possibly intended.
74
It
also accords with our more recent statements that a
statute is ambiguous if the statutory language "is
reasonably susceptible to more than one understand-
ing."
75
We have held that the meaning of the term
"consent" is unambiguous,
76
which would seem to
Page 18
preclude any narrowing construction inconsistent with
the term's plain meaning But even if it were possible to
impose a narrowing construction on an unambiguous
statute, we conclude that there is no room for a nar-
rowing construction based on the meaning of the term
"consent" because that term is already defined in the
Penal Code and has been judicially construed in a
manner that is inconsistent with the State's proposed
construction. "Consent" is defined as "assent in fact,
whether express or apparent."
77
This definition is
contained in an introductory definition section of the
Texas Penal Code that applies throughout the Code
78
and even to offenses contained in statutes outside
the Code unless otherwise excepted.
79
In Baird v.
State, we construed "consent" under this definition to
mean "an actual or real agreement after thoughtful
consideration."
FN80
This definition is inconsistent
with the idea that someone consents to a photograph
merely because he appears in a public place. The
ability to appear in public is one of the amenities of
life in this country.
81
People do not ordinarily even
think about being photographed when they appear in
public. Saying that one should know that there is al-
ways a chance of being photographed in public is not
the same as saying that one has agreed to it after
thoughtful consideration.
suspect to an intrusion by an officer.
85
The State's
construction of consent is at odds with these under-
standings of the term. Under the State's construction,
there need not be any actual concurrence of wills
between the photographer and the subject or any ac-
tual voluntary agreement by the subject to be photo-
graphed. Essentially, the State advocates for a form of
constructive consent. The legislature is free to draft a
definition of consent along those lines that would
apply to a particular statute, and has done so in narrow
instances,
86
but we are not free to do so by judicial
construction.
*9 [13] Furthermore, imposing a judicial con-
struction of a term can be dangerous because that
construction can cross over to other areas of the law in
which the term is used.
87
Defining "consent" as the
State suggests could have any number of unantici-
pated and unwelcome consequences when applied in
other contexts. And a free-floating judicial holding,
unanchored by any statutory definition, that a person
consents to being photographed or video-recorded
merely by appearing in public could lead the gov-
ernment to conclude that it could use cameras to rec-
ord all of a person's public activities all of the
timesurely a questionable proposition.
88
Our construction of the term "consent" in Baird
was not specifically in the context of the improp-
er-photography statute,
82
but that does not matter:
Consent was given a single definition applicable to
numerous statutes, including the one at issue here. We
cannot arbitrarily carve out a different meaning for
that term in the context of the improper-photography
statute simply to avoid First Amendment complica-
tions
83
Moreover, the State's construction of consent is
suspect for other reasons. In legal parlance, consent
has ordinarily been understood to involve a "concur-
rence of wills."
84
In the Fourth Amendment context,
where issues of consent often arise, consent is gener-
ally understood to be a voluntary agreement by a
[14] Moreover, courts should be circumspect
about using a "narrowing construction" that actually
broadens the meaning of a term.
89
The State seeks to
narrow the improper-photography statute by broad-
ening the scope of the word "consent." Such a
broadening appears to be unrealistic, especially given
the meaning of consent in other contexts and the wide
applicability of the Penal Code definition of "consent"
to statutes in the Code and to statutes outside the
Code.
90
We decline to construe the term "consent"
in the manner the State suggests.
91
5. Scott v. State
The State contends that the present case is like
Scott v. State, where this Court upheld the tele-
phone-harassment statute in the face of a First
Page 19
Amendment facial challenge. Scott held that the tel-
ephone-harassment statute did not implicate the First
Amendment because it was directed only at persons
who (1) with the specific intent to inflict emotional
distress, (2) repeatedly used a telephone to invade
another's personal privacy, and (3) did so in a manner
reasonably likely to inflict emotional distress.
92
To
the extent that the proscribed conduct was communi-
cative, it was found not to be protected by the First
Amendment because it "invades the substantial pri-
vacy interests of another (the victim) in an essentially
intolerable manner."
FN93
We find Scott to be distinguishable in at least two
respects. First, the statute at issue in Scott penalized
communications conveyed by telephone, a relatively
private channel of communication. The Supreme
Court's seminal case regarding Fourth Amendment
expectations of privacy arose from the interception of
a telephone conversation.
94
Several courts have held
that a telephone either is a nonpublic forum
95
or
implicates privacy even in the face of First Amend-
ment concerns.
96
Government has greater leeway to
regulate when a nonpublic forum is involved
97
or
when serious privacy interests are implicated.
98
Second, the telephone-harassment statute applied
only to a defendant who intended to inflict emotional
harm on the victim. The First Amendment limits the
government's ability to impose sanctions for even the
intentional infliction of emotional distress, but those
limits are less rigorous when the speech involves
matters of purely private concern.
FN99
*10 By contrast, the statute at issue in the present
case is not limited to expressive activity that occurs in
relatively private settings nor to activity that inten-
tionally inflicts emotional harm on the victims. Mak-
ing photographs or visual recordings can be criminal
even if it occurs on a public street,
100
and there is no
requirement that the defendant intend any sort of
harm, emotional or otherwise, to the person photo-
graphed or recorded.
The State suggests, albeit under the scrutiny part
of the First Amendment analysis, that the improp-
er-photography statute protects privacy interests by
"protecting individuals from invasive covert photog-
raphy" and by "protecting individuals from having
their images unconsensually exploited for the sexual
gratifications of others." The State is correct; the
statute does protect individuals in these ways. But this
part of the State's analysis has been undermined by our
rejection of the State's suggestion that we construe the
statute to exclude photographs and visual recordings
of people in public. And with respect to photography
or visual recordings of people in public, we do not find
the State's asserted privacy interests to be particularly
substantial. A person who walks down a public street
cannot prevent others from looking at him or her with
sexual thoughts in their heads. "[P]rivacy interests
fade once information already appears on the public
record." Protecting someone who appears in
public from being the object of sexual thoughts seems
to be the sort of "paternalistic interest in regulating the
defendant's mind"
102
that the First Amendment was
designed to guard against.
103
We also keep in mind
the Supreme Court's admonition that the forms of
speech that are exempt from First Amendment pro-
tection are limited, and we should not be quick to
recognize new categories of unprotected expres-
sion.
104
We conclude that the improper-photography
statute implicates First Amendment expression on its
face.
C. What is the Level of Scrutiny?
1. The Standards
[15] [16] [17] In the First Amendment context,
there are two levels of scrutiny: strict scrutiny and
intermediate scrutiny. Strict scrutiny applies when a
statute constitutes a content-based regulation of ex-
pression.
105
Under strict scrutiny, a regulation of
expression may be upheld only if it is narrowly drawn
to serve a compelling government interest.
106
In this
context, a regulation is "narrowly drawn" if it uses the
least restrictive means of achieving the government
Page 20
S.W.3d , 2014 W L 4627231 (Tex.Crim.App.)
(Cite as: 2014 W L 4627231 (Tex.Crim.App.))
interest
107
[18][19][20] The Supreme Court has two lines of
cases that apply intermediate scrutiny. To cases in-
volving expressive conduct (conduct that is not in-
herently expressive but can be expressive on the facts
of a given case), the Court applies the O'Brien test,
which requires that (1) the regulation furthers an im-
portant or substantial government interest, (2) the
government interest is unrelated to the suppression of
free expression, and (3) incidental restrictions on First
Amendment freedoms are no greater than essential to
the furtherance of the government interest.
108
Other
cases, such as Ward v. Rock Against Racism, hold that
a regulation of the time, place, or manner of expres-
sion is permissible if it is (1) content neutral, (2) serves
a significant government interest, (3) is narrowly
tailored, and (4) leaves open ample alternative chan-
nels of communication.
109
The test for reasonable
time, place, and manner restrictions applies even to
pure speech or inherently expressive conduct.
110
striction. At least arguably, the provision at issue here
regulates the manner of expression, and we will as-
sume it to be such for the purpose of discussion. We
turn then, to whether the statutory provision is content
based or content neutral. Under the standards articu-
lated above, if a law is content based, then strict scru-
tiny applies, but if it is content neutral, intermediate
scrutiny applies.
[25] [26] Generally, a law is considered to be
content based if it distinguishes "favored speech from
disfavored speech on the basis of the ideas or views
expressed."
115
"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 con-
tent-based."
116
For example, a statute that prohibits
an adult from communicating with a minor via the
internet is content-neutral, but a statute that prohibits
an adult from communicating with a minor via the
internet in a sexually explicit manner is con-
tent-based.
117
HI [21][22][23] The Supreme Court has held
that the O'Brien test "is little, if any, different from the
standard applied to time, place or manner re-
strictions."
111
Under either intermediate-scrutiny
test, the regulation "need not be the least
speech-restrictive means of advancing the Govern-
ment's interests."
mn2
The requirement of narrow
tailoring is satisfied if the regulation promotes a sub-
stantial governmental interest that would be achieved
less effectively absent the regulation.
113
The regu-
lation is considered "narrowly tailored" for interme-
diate-scrutiny purposes, "[s]o long as the means cho-
sen are not substantially broader than necessary to
achieve the government's interest."
114
2. Which Standard of Scrutiny Applies?
[24] Because we have determined that the activity
proscribed by the statutory provision at issue is in-
herently expressive, O'Brien does not apply. To be
subject to intermediate scrutiny, then, the provision
must be a content-neutral time, place, or manner re-
[27] [28] [29] In some situations, a regulation can
be deemed content neutral on the basis of the gov-
ernment interest that the statute serves, even if the
statute appears to discriminate on the basis of content.
These situations involve government regulations
aimed at the "secondary effects" of expressive activ-
ity .
118
In this type of situation, "[a] regulation that
serves purposes unrelated to the content of expression
is deemed neutral, even if it has an incidental effect on
some speakers or messages but not others."
119
The
government regulation at issue need only be justified
without reference to the content of the regulated
speech
120
Two classic examples of the "secondary effects"
rule are the sound ordinance in Ward and the zoning
ordinance inRenton. In Ward, the Supreme Court held
that an ordinance that sought to control the volume
level of entertainment performances at a public venue
was content neutral, even though volume is sometimes
an expressive aspect of a performance.
121
Control-
Page 21
S.W.Sd -, 2014 WL 4627231 (Tex.Crim.App.)
ling noise levels to avoid undue intrusion into resi-
dential areas was a content-neutral justification for the
regulation.
122
In Renton, the Supreme Court held
that a zoning ordinance for adult theaters was content
neutral because it was aimed at the effects of such
theaters on the surrounding community.
123
*12 [30][31] Ordinarily, however, the govern-
ment's purpose in enacting the statute is not control-
ling. "[W]hile a content-based purpose may be suffi-
cient in certain circumstances to show that a regulation
is content based, it is not necessary to such a showing
in all cases.... Nor will the mere assertion of a con-
tent-neutral purpose be enough to save a law which,
on its face, discriminates based on content."
124
The amicus argues that the improper-photography
statute discriminates on the basis of content because it
applies only to the photographing and recording of
people, as opposed to other subjects, such as animals,
landscapes, and buildings. The improper-photography
statute applies only when the actor photographs or
records "another,"
125
and the Penal Code elsewhere
defines "another" to mean "a person other than the
The inquiry, however, is not that simple.
actor
FN 126
In Regan v. Time, the Supreme Court upheld size
and color limitations on depictions of money as con-
tent-neutral manner restrictions.
127
These size and
color limitations applied only to depictions of money,
and not to depictions of other things, such as cars or
flowers, but that fact did not cause the size and color
limitations to be content based. The reason this is so
may be that money has a special legal status, given
Congress's power to coin money and punish counter-
feiting.
128
Depictions of cars and flowers do not
implicate the counterfeiting concerns that are impli-
cated by depictions of money.
Likewise, people have a special legal status not
enjoyed by other subjects such as animals, landscapes,
and buildings, and one aspect of this special legal
status involves the issue of consent. "Consent" as a
legal concept is meaningful only with respect to peo-
ple. Landscapes and buildings cannot consent or
withhold consent, and, legally, animals cannot do so
either. Only people can consent, and even when a
particular person cannot consent, because of an actual
or legal lack of capacity, someone else generally has
the right or duty to consent on his behalf. So, the im-
proper-photography statute discriminates on the basis
of the non-consensual nature of the defendant's activ-
ity, and that basis, by itself, is a content-neutral dis-
tinction.
[32] But the statutory provision at issue does not
penalize all non-consensual acts of taking photographs
and making visual recordings. A statute that did so
would be content neutral, but it is doubtful that such a
broad prohibition would satisfy intermediate scruti-
ny.
129
The provision at issue here penalizes only a
subset of non-consensual image and video producing
activitythat which is done with the intent to arouse
or gratify sexual desire. We find this discrimination to
be content based. As we have explained above, sexual
thoughts are included within the protection of the First
Amendment. By discriminating on the basis of the
sexual thought that underlies the creation of photo-
graphs or visual recordings, the statute discriminates
on the basis of content.
*13 It is no answer that the statute merely dis-
criminates on the basis of the thought behind the
speech rather than the speech itself. As our discussion
above shows, thought is intertwined with expression
and is also protected by the First Amendment.
Moreover, the Supreme Court has concluded on sev-
eral occasions that a purpose or culpable mental state
required by a statute caused it to be content based. In
Regan v. Time, the Court held that the part of the
statute that restricted depictions of money to certain
purposes was a content-based restriction.
130
In
RA. V. v. City of St. Paul, the Court held that an or-
dinance discriminated on the basis of content when it
imposed criminal liability for engaging in expressive
Page 22
activity that "one knows or has reasonable grounds to
know arouses anger, alarm or resentment in others on
the basis of race, color, creed, religion or gender."
131
And in Texas v. Johnson, the Court held that the
flag-burning statute, which imposed liability for
conduct the actor "knows will seriously offend one or
more persons likely to observe or discover his action,"
132
was content based because it punished mis-
treatment of the flag that was intentionally designed to
seriously offend other individuals.
133
The Court
rejected the State's argument that the statute was a
content-neutral law aimed only at "the actor's intent
and not at the communicative impact of his actions"
and found "the distinction between Texas' statute and
one dependent on actual audience reaction too pre-
cious to be of constitutional significance."
134
Nor may we find the statute content neutral on the
basis of a "secondary effects" theory. It is the sexual
content of the expression, not any secondary effect of
taking photographs or making visual recordings, that
the statute seeks to prevent. Although the State claims
that the statute seeks to protect privacy, the only sense
in which the statute necessarily protects privacy is by
protecting an individual from being the subject of
someone else's sexual desires. But this type of pro-
tection regulates the primary effect of speech because
it is simply the protection against the expression of "a
particularly odious message," where "the 'chain of
causation' ... necessarily 'runs through the persuasive
effect of the expressive component' of the conduct."
Because we find that the statutory provision at
issue is content based, we conclude that strict scrutiny
is the applicable standard.
D. Does the Statute Satisfy Strict Scrutiny?
[33][34] Content-based regulations are presump-
tively invalid,
136
and "[i]t is rare that a regulation
restricting speech because of its content will ever be
permissible."
137
Even when a compelling govern-
ment interest is shown, the existence of adequate
content-neutral alternatives undercuts significantly
any defense of such a statute.
138
And as we ex-
plained above, when a statute is content based, it may
be upheld only if it is the least restrictive means of
achieving the compelling government interest in
question.
*14 [35][36] The State asserts an interest in pro-
tecting the privacy of those photographed or recorded.
Privacy constitutes a compelling government interest
when the privacy interest is substantial and the inva-
sion occurs in an intolerable manner.
139
We agree
with the State that substantial privacy interests are
invaded in an intolerable manner when a person is
photographed without consent in a private place, such
as the home, or with respect to an area of the person
that is not exposed to the general public, such as up a
skirt.
[37] But 21.15(b)(1) contains no language ad-
dressing privacy concerns. The provision certainly
applies to situations in which privacy has been vio-
lated, but that is because the provision applies broadly
to any non-consensual act of photography or visual
recording, as long as it is accompanied by the requisite
sexual intent. It is obvious that the portion of the
statute at issue is not the least restrictive means of
protecting the substantial privacy interests in question.
One need only look at the next subsection of the stat-
ute 21.15(b)(2)to see an example of a provision
that is in fact narrowly drawn to protect substantial
privacy intereststhe provision that makes it a crime
to "photograph or ... record[ ] ... a visual image of
another at a location that is a bathroom or private
dressing room."
140
By its very wording negating the "bathroom or
private dressing room" element, the provision before
us, 21.15(b)(1), was designed as a catch-all, to reach
other situations in which photography and visual re-
cordings ought to be prohibited. But there are nar-
rower methods of reaching such situations that address
more directly the substantial privacy interests at stake.
Page 23
For instance, subsection (b)(2) of the statute provides
an alternative culpable mental state of "with intent to
... invade the privacy of the other person."
141
If this
culpable mental state were a conjunctive element of
subsection (b)(1), it would narrow the provision at
least somewhat to address privacy concerns.
142
Subsection (b)(1) could also be narrowed by adding an
element that requires that a person's privacy interest be
invaded as a result of the place of the person recorded
or the manner in which a visual recording is made. Or
the legislature could designate specific places and
manners that are proscribed, such as specifically pro-
scribing the taking of a photograph of a person inside
his home or the taking of a photograph underneath a
person's clothing. Because less restrictive alternatives
would adequately protect the substantial privacy in-
terests that may sometimes be threatened by
non-consensual photography, the provision at issue
before us fails to satisfy strict scrutiny.
doctrine, a statute must be found to "prohibit[ ] a
substantial amount of protected expression."
146
The
danger that the statute will be unconstitutionally ap-
plied must be "realistic."
147
[42] [43] A statute is likely to be found overbroad
if the criminal prohibition it creates is of "alarming
breadth."
148
Such is the case with the current stat-
ute, the breadth of which has been accurately charac-
terized as "breathtaking."
149
The statutory provision
at issue is extremely broad, applying to any
non-consensual photograph, occurring anywhere, as
long as the actor has an intent to arouse or gratify
sexual desire. This statute could easily be applied to an
entertainment reporter who takes a photograph of an
attractive celebrity on a public street.
150
But the
statute operates unconstitutionally even if applied to
someone who takes purely public
151
photographs of
another for personal reasons with the requisite intent.
E. Overbreadth
Having found the statute to be an invalid con-
tent-based restriction, we question whether we need to
address overbreadth.
143
In an abundance of caution,
we address whether the unconstitutional reach of the
statute is substantial enough to warrant a holding of
facial invalidity, despite any legitimate applications of
the statute. As we explained above, 21.15(b)(1) does
apply to the situation in which a non-consensual
photograph is taken of a person in a private place, such
as the home, and the situation in which a photograph is
taken of an area of a person's body that is not exposed
to the public, such as when a photograph is taken up a
woman's skirt. Assuming these to be legitimate ap-
plications of the statute, we address the overbreadth
question.
*15 [38][39][40][41] The overbreadth doctrine is
"strong medicine" to be employed with hesitation and
only as a last resort.
144
The "overbreadth of a statute
must not only be real, but substantial as well, judged in
relation to the statute's plainly legitimate sweep."
145
To be held unconstitutional under the overbreadth
[44] Although we must look to whether the im-
proper reach of the statute is "real," as well as sub-
stantial, "[w]e would not uphold an unconstitutional
statute merely because the Government promised to
use it responsibly."
152
And we can look to the
prosecution before us as evidence of the real danger
posed by the statute.
153
The record in the present
case consists solely of the indictments, but the de-
scriptions in a number of the counts suggest that the
images recorded were of people in a public place (a
water park) and of areas of the person that were ex-
posed to the public (wearing swimsuits).
Moreover, we are aware of at least four appellate
decisions, aside from this case, that involve the ap-
plication of 21.15(bXl) to purely public photog-
raphy.
154
In one of those cases, Cooper v. State, the
court of appeals rather ominously stated,
In the 50s, before the advent of video cameras and
cell phone videos, a popular song advised us that
standing on the comer and watching females pass
Page 24
by was acceptable conduct and that "you can't go to
jail for what you're thinking." Watching may still be
acceptable conduct, but recording that parade may
violate the law in Texas today.
155
FN6. Ex parte Thompson, 414 S.W.Sd 872,
881 (Tex.App.-San Antonio 2013, pet.
granted).
In Arguellez, this Court expressed its incredulity
that reasonable suspicion could arise from taking
photographs in a public place: "Photographs are rou-
tinely taken of people in public places, including at
public beaches, where bathing suits are also com-
monly worn, and at concerts, festivals, and sporting
events."
FN1:>6
"Taking photographs of people at such
venues," the Court said, "is not unusual, suspicious, or
criminal."
1:>7
We believe that this incredulity re-
flects more on the unreasonably expansive nature of
the statute than on the conduct of the police offic-
ers
158
III. CONCLUSION
*16 We hold that Section 21.15(b)(1) of the Texas
Penal Code, to the extent it proscribes the taking of
photographs and the recording of visual images, is
unconstitutional on its face in violation of the Free
Speech clause of the First Amendment. We affirm the
judgment of the Court of Appeals.
MEYERS, J, dissented.
FN1. TEX. PENAL CODE 21.15.
FN2.M 21.15(b)(1).
FN3. We do not address the constitutionality
of the part of 21.15(b)( 1) that proscribes the
broadcast or transmission of visual images.
See id. 21.15(b)(1).
FN7.M at 876-81.
FN8. Id. at 876-78.
FN9. Id. at 878.
FN10. Ma t 878-81.
FNl l . Ma t 881.
FN12. 491 U.S. 397, 109 S.Ct 2533, 105
L.Ed.2d 342 (1989).
FN13. 322 S.W.Sd
(Tex.Crim.App.2010).
662
FN 14. Quoting Ex parte Nyabwa, 366
S.W.Sd 719, 726 (Tex.App.-Houston [14th
Dist.]2011,pet.refd).
FN15. 413 U.S. 115, 93 S.Ct. 2680, 37
L.Ed.2d 492 (1973).
FN16. The amicus brief was submitted by
The Reporters Committee for Freedom of the
Press.
FN 17. Appellant's counsel agreed to share
his oral argument time with the amicus, rep-
resented by Eugene Volokh.
FN4. Counts five, seventeen, eighteen, and
nineteen.
FN5. He also alleged that the statute violated
Article I, 8, of the Texas Constitution.
FN18. TEX. PENAL CODE 21.15(b)(1).
FN19. Ex parte Ellis, 309 S.W.Sd 71, 79
(Tex.Crmi.App.2010).
> 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 25
FN20. U.S. CONST., Amend. 1. FN29. 413 U.S. at 119, 93 S.Ct. 2680.
FN21. Board ofEduc. v. Barnette, 319 U.S.
624, 638-39, 63 S.Ct. 1178, 87 L.Ed. 1628
(1943).
FN22. Johnson, 491 U.S. at 404, 109 S.Ct.
2533.
FN23.M
FN24. Id. at 405, 109 S.Ct. 2533 ("We have
not automatically concluded, however, that
any action taken with respect to our flag is
expressive. Instead, in characterizing such
action for First Amendment purposes, we
have considered the context in which it oc-
curred.").
FN25. Hurley v. Irish-American Gay, Les-
bian and Bisexual Group, 515 U.S. 557, 569,
115 S.Ct. 2338, 132 L.Ed.2d 487 (1995).
FN26. Id. at 569-70, 115 S.Ct. 2338 ("Not
many marches, then, are beyond the realm of
expressive parades.... [A] private speaker
does not forfeit constitutional protection
simply by combining multifarious voices, or
by failing to edit their themes to isolate an
exact message as the exclusive subject matter
of the speech.").
FN30. Id. at 119-20,93 S.Ct. 2680 ("As with
pictures, films, paintings, drawings, and en-
gravings, both oral utterance and the printed
word have First Amendment protection until
they collide with the long-settled position of
this Court that obscenity is not protected by
the Constitution.").
FN31. New York v. Ferber, 458 U.S. 747,
756, 102 S.Ct. 3348, 73 L.Ed.2d 1113
(1982).
FN32.M at 771, 102 S.Ct. 3348.
FN33. United States v. Playboy Entertain-
ment Group, 529 U.S. 803, 813-14,120 S.Ct.
1878,146 L.Ed.2d 865 (2000).
FN34. Ashcroft v. Free Speech Coalition,
535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d
403 (2002). Virtual child pornography con-
sists of "sexually explicit images that appear
to depict minors but were produced without
using any real children." Id. at 239, 122 S.Ct.
1389.
FN35. United States v. Stevens, 559 U.S.
460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435
(2010).
FN27. Id. at 569, 115 S.Ct. 2338.
FN28. In oral argument, the amicus sug-
gested that robotic cameras, which record
pictures or videos automatically, may be
outside First Amendment protection. We
exclude these types of cameras from our
analysis.
FN36. Regan v. Time, 468 U.S. 641, 648-49,
104 S.Ct. 3262, 82 L.Ed.2d487 (1984).
FN37. Anderson v. City of Hermosa Beach,
621 F.Sd 1051, 1060-61 (9th Cir.2010) (tat-
toos); White v. City of Sparks, 500 F.Sd 953,
955-56 (9thCir.2007) (painting); Comedy III
Productions v. Gary Saderup, Inc., 25
Page 26
CaUth 387, 398-99, 106 Cal.Rptr.2d 126,
21 P.3d 797, 804(2001).
FN38. Bery v. City of New York, 97 F.Sd 689,
696 (2d Cir.1996) ( "[P]aintings, photo-
graphs, prints and sculptures ... always
communicate some idea or concept to those
who view it, and as such are entitled to full
First Amendment protection."); ETW Corp.
v. Jireh Publishing, 332 F.Sd 915, 924 (6th
Cir.2003) ("The protection of the First
Amendment is not limited to written or spo-
ken words, but includes other mediums of
expression, including music, pictures, films,
photographs, paintings, drawings, engrav-
ings, prints, and sculptures.") (citing, inter
alia. Hurley, Kaplan, and Bery); White, 500
F.Sd at 956 (agreeing with ETW and Bery );
Board of Trustees v. New Life Art, 683 F.Sd
1266,1276 (11th Cir.2012) (citing, inter alia,
Hurley, Kaplan, ETW Corp.); Sari Louis
Feraud Int'l v. Viewfinder, 406 F.Supp.2d
274, 283 (S.D.N.Y.2005), vacated on other
grounds, 489 F.3d 474 (2d Cir.2007).
FN39. See previous two footnotes.
FN40. Cressman v. Thompson, 719 F.3d
1139, 1153 n. 14 (10th Cir.2013).
FN41. Mastrovincemo v. City of New York,
435 F.Sd 78, 84-85, 93 (2d Cir.2006).
FN42. Kleinman v. City of San Marcos, 597
F.Sd 323, 326-27 (5th Cir.2010).
FN43. Ma t 327-28.
FN44. Brown v. Entertainment Merchants
Ass'n., U.S. , 131 S.Ct. 2729, 2737
n.4, 180 L.Ed.2d 708 (2011).
FN45. Stevens, 559 U.S. at 479-80,130 S.Ct.
1577 (emphasis, brackets, and ellipsis in
Stevens).
FN46. Entertainment Merchants Ass'n, 131
S.Ct. at 2734 n. 1.
FN47. ACLU of Illinois v. Alvarez, 679 F.Sd
583,595 (7th Cir.2012); People v. Clark, 379
Ill.Dec. 77, 6 N.E.3d 154, 159-60 (2014).
FN48. Anderson, 621 F.3d at 1061.
FN49. Glik v. Cunniffe, 655 F.Sd 78, 82-84
(1st Cir.2011); Smith v. City of Gumming,
212 F.Sd 1332, 1333 (l l di Cir.2000). Alt-
hough some conflict exists over whether this
right is clearly established for qualified im-
munity purposes, "The First Circuit's deci-
sion in Glik aligns with authority from the
Eleventh Circuit and with the weight of dis-
trict-court decisions." ACLU of Illinois, 679
F.Sd at 601 n. 10.
FN50. ACLU of Illinois, 679 F.3d at 596
(quoting Citizens United v. FEC, 558 U.S.
310, 336, 130 S.Ct. 876, 175 L.Ed.2d 753
(2010)).
FN51.M
FN52. Anderson, 621 F.3d at 1061 at
1061-62 (citation omitted, emphasis in
original); see also ACLU of Illinois, 679 F.Sd
at 595 (audio-video recording) (quoting An-
derson ); Coleman v. City of Mesa, 230 Ariz.
352, 359, 284 P.Sd 863, 870 (2012) (dis-
cussing Anderson).
FN53. City ofLadue v. Gilleo, 512 U.S. 43,
48, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994)
(signs).
Page 27
S.W.Sd -, 2014 WL 4627231 (Tex.Crim.App.)
FN54. Long v. State, 931 S.W.2d 285,290 n.
4 (Tex.Crim.App. 1996)
FN55.M. at 293.
FN56. See Johnson, 491 U.S. at 411, 109
S.Ct. 2533 ("The Texas law is thus not aimed
at protecting the physical integrity of the flag
in all circumstances, but is designed instead
to protect it only against impairments that
would cause serious offense to others. Texas
concedes as much: 'Section 42.09(b) reaches
only those severe acts of physical abuse of
the flag carried out in a way likely to be of-
fensive. The statute mandates intentional or
knowing abuse, that is, the kind of mis-
treatment that is not innocent, but rather is
intentionally designed to seriously offend
other individuals.' ").
FN57. See Virginia v. Black, 538 U.S. 343,
359-63, 123 S.Ct. 1536, 155 L.Ed.2d 535
(2003).
FN58. See Ex parte Lo, 424 S.W.Sd 10,25 n.
71 (Tex.Crim.App.2013) (quoting Ex parte
Nyabwa, 366 S.W.3d 710, 711-12
(Tex.Crmi.App.2012) (Keller, P.J., dissent-
ing to refusal of defendant's PDR) ("It is not
enough to say that the statute is directed only
at intent, if the intent consists of thought that
is protected by the First Amendment")).
FN59. Wooley v. Maynard, 430 U.S. 705,
714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977);
Lo, 424 S.W.Sd at 25.
FN60. Lo, 424 S.W.Sd at 26.
FN61. See id. at 25. The culpable mental
state of "intent to arouse or gratify the sexual
desire of any person" is also an element of
the crimes of indecent exposure and inde-
cency with a child. TEX. PENAL CODE
21.08, 21.11. But in those instances, setting
aside the culpable mental state, the defendant
has committed conduct that is not protected
by the First Amendment, and so those stat-
utes do not proscribe constitutionally pro-
tected speech coupled with constitutionally
protected thought. See Wisconsin v. Mitchell,
508 U.S. 476, 487, 113 S.Ct. 2194, 124
L.Ed.2d 436 (1993) (distinguishing a case
involving an ordinance that criminalized bi-
as-motivated fighting words from a statute
that imposes enhanced punishment for an
assault on the basis of bias motivation be-
cause the ordinance in the former case was
"explicitly directed at expression" while the
statute in the latter case was "aimed at con-
duct unprotected by the First Amendment").
FN62. Lo, 424 S.W.Sd at 25-26.
FN63. Sable Communications of California
v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829,
106 L.Ed.2d 93 (1989); Reno v. ACLU, 521
U.S. 844, 874, 117 S.Ct. 2329, 138 L.Ed.2d
874 (1997). See also Lo, 424 S.W.Sd at 20,
22.
FN64. Stanley v. Georgia, 394 U.S. 557, 89
S.Ct 1243, 22 L.Ed.2d 542 (1969). But
government may attempt to prevent obscen-
ity from entering the home by penalizing its
importation and distribution, United States v.
Thirty-Seven Photographs, 402 U.S. 363,
376, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971),
and government may ban even personal
possession of child pornography because
such possession is directed toward the evils
of child exploitation and is not merely "a
paternalistic interest in regulating the [de-
fendant's] mind." Osborne v. Ohio, 495 U.S.
Page 28
103, 109, 110 S.Ct. 1691, 109 L.Ed.2d 98
(1990).
FN65. Lo, 424 S.W.Sd at 25-26.
FN66. Free Speech Coalition, 535 U.S. at
253, 122 S.Ct. 1389 (citation and internal
quotation marks omitted); Lo, 424 S.W.Sd at
25.
FN75. Baird v. State, 398 S.W.Sd 220, 229
(Tex.Crim.App.2013). See also Logan v.
State, 89 S.W.Sd 619, 628
FN76. Baird, 398 S.W.3d at 229-30.
FN77. TEX. PENAL CODE 1.07(a)(ll).
FN67. We need not address the possibility
that people who do not have sexual thoughts
about the potential subject of a photograph
could nevertheless be chilled by this statute.
See FEC v. Wisconsin Right to Life, Inc., 551
U.S. 449, 468, 127 S.Ct. 2652, 168 L.Ed.2d
329 (2007) (Roberts, C.J., joined by Alito, J.)
("No reasonable speaker would choose to
[engage in the activity] ... if its only defense
to a criminal prosecution would be that its
motives were pure.").
FN68. Osborne, 495 U.S. at 115 n. 12,
119-121, 110 S.Ct. 1691.
FN69. Long, 931 S.W.2d at 295.
FN70. Id. See also Stevens, 559 U.S. at 481,
130 S.Ct. 1577.
mil. Long, 931 S.W.2dat295;Steves, 559
U.S. at 481, 130 S.Ct. 1577.
FN72. Stevens, 559 U.S. at 481, 130 S.Ct.
1577.
FN73. Olvera v. State, 806 S.W.2d 546, 553
FN74. Boykin v. State, 818 S.W.2d 782, 785
FN78. Id. 1.07 ("In this code").
FN79.M 1.03(b).
FN80. 398 S.W.3d at 229-30.
FN81. See Papachristou v. City of Jackson-
ville, 405 U.S. 156, 164, 92 S.Ct. 839, 31
L.Ed.2d 110 (1972) (overturning vagrancy
ordinance on vagueness grounds: activities
involving wandering from place to place "are
historically part of the amenities of life as we
have known them. They are not mentioned in
the Constitution or in the Bill of Rights.
These unwritten amenities have been in part
responsible for giving our people the feeling
of independence and self-confidence, the
feeling of creativity. These amenities have
dignified the right of dissent and have hon-
ored the right to be nonconformists and the
right to defy submissiveness. They have en-
couraged lives of high spirits rather than
hushed, suffocating silence."). See also
Bykofsky v. Middletown, 429 U.S. 964, 97
S.Ct. 394, 50 L.Ed.2d 333 (1976) (Marshall,
J., dissenting to denial of certiorari) ("The
freedom to leave one's house and move about
at will is 'of the very essence of a scheme of
ordered liberty,' ... and hence is protected
against state intrusions by the Due Process
Clause of the Fourteenth Amendment.").
Page 29
FN82. See 398 S.W.Sd at 228 (construing
"consent" in connection with offense of
breach of computer security).
FN83. See Holder v. Humanitarian Law
Proj ect, 561 U.S. 1, 17, 130 S.Ct 2705, 177
L.Ed.2d 355 (2010) (to propose that the
meaning of a term be restricted only when the
First Amendment is implicated is "to give the
game away").
FN84. BLACK'S LAW DICTIONARY 276
(5th ed. 1979).
FN85. See Kaupp v. Texas, 538 U.S. 626,
631, 123 S.Ct. 1843,155 L.Ed.2d814 (2003)
(mere submission to a claim of lawful au-
thority is not consent); Katz v. United States,
389 U.S. 347, 358 & n. 22, 88 S.Ct. 507, 19
L.Ed.2d 576 (1967) (stating that "the very
nature of electronic surveillance precludes its
use pursuant to the suspect's consent" and
noting that "the usefulness of electronic
surveillance depends on lack of notice to the
suspect"); Baldwin v. State, 278 S.W.3d 367,
372 (Tex.Crim.App.2009) (answer to ques-
tion regarding location of identification is not
consent to retrieve the identification).
FN86. See TEX. TRANSP. CODE
522.102 (implied consent of drivers of
commercial vehicles to taking of breath,
blood, or urine specimen), 724.011 (implied
consent of person arrested for offense arising
from operation of a motor vehicle to taking of
breath or blood specimen), 724.014(a) (un-
conscious person incapable of withdrawing
implied consent under 724.011). We do not
express any opinion regarding the constitu-
tionality of these provisions. See Missouri v.
McNeely, U.S. , 133 S.Ct. 1552, 185
L.Ed.2d 696 (2013).
FN87. See Texas v. Cobb, 532 U.S. 162,
172-73, 121 S.Ct. 1335, 149 L.Ed.2d 321
(2001) (Blockburger test for "same offense"
used in Fifth Amendment double-jeopardy
context applied to Sixth Amendment
right-to-counsel context).
FN88. See United States v. Jones, U.S.
, 132 S.Ct 945, 964, 181 L.Ed.2d 911
(2012) (Alito, J., concurring) (arguing that
long term GPS tracking violates reasonable
expectations of privacy); Cramer v. Consol.
Freightways, 209 F.Sd 1122, 1135 (9th
Cir.2000) (Fisher, J., dissenting in part)
(quoting George Orwell, 1984, 6-7 (Signet
Classic 1992) (1949) ("There was ... no way
of knowing whether you were being watched
at any given moment... It was even con-
ceivable that they watched everybody all the
time.... You had to livedid live, from habit
that became instinctin the assumption that
every sound you made was overheard, and,
except in darkness, every movement scruti-
nized.")) (ellipsis in Cramer ) . Saying that
one ordinarily has no expectation of privacy
in his public appearance and therefore may
not be able to complain about being recorded
at a given time is different from saying that
one consents to being recorded merely by
appearing in public. One can take into ac-
count the scope of surveillance in consider-
ing whether an expectation of privacy has
been triggered, see Jones, supra (Alito, J.,
concurring), but that becomes more difficult
if public appearance has simply been deemed
to be consent, even if the boundaries of
consent are dictated by circumstances.
Moreover, the State's contention that the
boundaries of "consent" may be dictated by
the circumstances might also raise the ques-
tion of whether the statute is unconstitution-
ally vague.
Page 30
FN89. State v. Dronso, 90 Wis.2d 110,
115-16, 279 N.W.2d 710, 713
(Wis.Ct.App.1979) ("Here the state would
have this court uphold the constitutionality of
[the statute] by interpreting the operative
words 'intent to annoy' to mean and include
the following: obscene or lewd language
employed, threats of injury to people or
damage to property, attempts to extort
money, or invasion of privacy through re-
peated calls. Apparently it is the state's con-
tention that this kind of interpretation of the
operative words 'intent to annoy' found in
the statute is a constitutionally valid method
of narrowing its construction. Such is not the
case. For a court to make a determination in
this manner, it would excessively broaden
the scope of the words 'intent to annoy' to the
point of judicial legislation in its worst form.
This statute is not readily subject to a nar-
rowing construction as required.").
FN90. See Stevens, 559 U.S. at 479, 130
S.Ct. 1577 (faulting the government for an
"unrealistically broad reading of the excep-
tions clause" found in the depic-
tion-of-cruelty statute and holding, instead,
that the term "serious value" should be read
in conformity with its meaning in other con-
texts).
FN91. It is worth noting that the State's in-
terpretation of the statute, if accepted, would
appear likely to ultimately result in appel-
lant's acquittal, given that the wording of at
least some of the counts in the indictment
suggests that appellant's recordings were of
purely public activities. If the State's position
were correct, however, appellant would have
to wait for the end of trial, or even for an
appeal after trial, for the resolution of a suf-
ficiency-of-the-evidence claim regarding
whether the recordings were made "without
consent." See Ellis, 309 S.W.Sd at 79
("Generally, pretrial habeas is not available
to test the sufficiency of the charging in-
strument or to construe the meaning and ap-
plication of the statute defining the offense
charged.").
FN92. 322 S.W.Sd at 669-70.
FN93. M at 670.
FN94. See Katz v. United States, 389 U.S.
347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
FN95. City of Seattle v. Huff, 111 Wash.2d
923, 927, 767 P.2d 572, 574 (1989).
FN96. State v. Koetting, 616 S.W.2d 822,
826-27 (1981) ("To require a telephone
subscriber to deny himself the use of the
system to avoid harassment is clearly un-
reasonable and the state has a legitimate in-
terest in providing a means of punishing
those who would abuse the system and fla-
grantly infringe upon the privacy and soli-
tude of another."); People v. Weeks, 197
Colo. 175, 591 P.2d 91 (1979) ("A ringing
telephone is an imperative which, in the
minds of many, must be obeyed with a
prompt answer.... Once a telephone has been
answered, the victim is at the mercy of the
caller until the call can be terminated.").
FN97. Board of Airport Commissioners v.
Jews for Jesus, 482 U.S. 569, 573, 107 S.Ct.
2568, 96 L.Ed.2d 500 (1987); Cornelius v.
NAACP Legal Defense & Educ. Fund, 473
U.S. 788, 800, 811, 105 S.Ct. 3439, 87
L.Ed.2d 567 (1985).
FN98. Snyder v. Phelps, U.S. 131
Page 31
S.Ct 1207, 1220, 179 L.Ed.2d 172 (2011)
(quoting Cohen v. California, 403 U.S. 15,
21, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971))
("to shut off discourse solely to protect others
from hearing it is ... dependent upon a
showing that substantial privacy interests are
being invaded in an essentially intolerable
manner").
FN99. Id. at 1215.
FN 100. See Lo, 424 S.W.Sd at 25 n. 71
(quoting Nyabwa, 366 S.W.Sd at 712 (Keller,
P.J., dissenting) ("But in the statute before
us, the person photographed could be a fiil-
ly-clothed adult walking down a public
street.")).
FN101. Florida Star v. B.J.F., 491 U.S. 524,
532 n. 7, 109 S.Ct. 2603, 105 L.Ed.2d 443
(1989).
FN102. See Osborne, 495 U.S. at 109, 110
S.Ct. 1691.
FN 103. An argument might perhaps be made
that one who is photographed without con-
sent is in a sense a "captive audience" be-
cause of the difficulty of preventing such
photography. But, by its own estimation, the
Supreme Court has applied the captive au-
dience rationale sparingly, generally limiting
its application to unwanted expressive activ-
ity directed at one's home. Snyder, 131 S.Ct.
at 1220.
FN 104. Entertainm ent Merchants Ass 'n, 131
S.Ct. at 2733-34.
FN105. Id. at 2738; Lo, 424 S.W.Sd at 19.
S.Ct. at 2738; Lo, 424 S.W.Sd at 19.
FN107. Playboy, 529 U.S. at 813, 120 S.Ct.
1878; Lo, 424 S.W.3d at 15-16, 19.
FN108. Turner Broadcasting System v.
Federal Communications Commission, 512
U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d
497 (1994); United States v. O'Brien, 391
U.S. 367, 376-77, 88 S.Ct. 1673, 20 L.Ed.2d
672 (1968) (test applicable "when 'speech'
and 'nonspeech' elements are combined in
the same course of conduct").
FN109. 491 U.S. 781, 791, 109 S.Ct. 2746,
105L.Ed.2d661 (1989).
FN 110. Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 298 n. 8, 104
S.Ct. 3065, 82 L.Ed.2d 221 (1984) ("Rea-
sonable time, place, or manner restrictions
are valid even though they directly limit oral
or written expression.").
FN111. Johnson, 491 U.S. at 407, 109 S.Ct.
2533; Ward, 491 U.S. at 798,109 S.Ct. 2746;
Clark, 468 U.S. at 298, 104 S.Ct. 3065.
FN 112. Turner Broadcasting, 512 U.S. at
662, 114 S.Ct. 2445 (O'Brien test); see also
Ward, 491 U.S. at 797-98, 109 S.Ct. 2746
(time, place, or manner restrictions).
FN113. Turner Broadcasting, 512 U.S. at
662, 114 S.Ct. 2445; Ward, 491 U.S. at 799,
109 S.Ct. 2746.
FN114. Ward, 491 U.S. at 800, 109 S.Ct.
2746.
FN 115. Turner Broadcasting, 512 U.S. at
Page 32
643, 114 S.Ct. 2445; Lo, 424 S.W.3d at 15.
FN116. Lo, 424 S.W.3d at 15 n. 12.
FN117.M
FN 118. City of Renton v. Playtime Theatres,
475 U.S. 41, 47, 106 S.Ct. 925, 89 L.Ed.2d
29 (1986).
FN119. Ward, 491 U.S. at 791, 109 S.Ct.
2746.
FN120. Id.; Renton, 475 U.S. at 48,106 S.Ct.
925.
FN121. See Ward, 491 U.S. at 791-93, 109
S.Ct. 2746.
FN122. Id. at 792, 109 S.Ct. 2746.
FN123. Renton, 475 U.S. at 47-48, 106 S.Ct.
925.
FN124. Bartnicki v. Vopper, 532 U.S. 514,
121 S.Ct 1753, 149 L.Ed.2d 787 (2001)
(quoting Turner Broadcasting, 512 U.S. at
642, 114 S.Ct. 2445).
FN125. TEX. PENAL CODE 21.15(b)(1).
FN126. Id. 1.07(a)(5). "Person" is defined
as "an individual, corporation, or associa-
tion," id. 1.07(a)(38), and "individual" is
defined as "a human being who is alive, in-
cluding an unborn child at every stage of
gestation from fertilization until birth," id.
1.07(a)(26).
FN127. Time, 468 U.S. at 655-56, 658, 104
S.Ct. 3262.
FN128. See id. at 643, 104 S.Ct. 3262.
FN 129. See Gilleo, 512 U.S. at 55-57, 114
S.Ct, 2038 (stating, with respect to regulation
banning signs at residences: "Our prior de-
cisions have voiced particular concern with
laws that foreclose an entire medium of ex-
pression."); Schad v. Borough of Mount
Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68
L.Ed.2d 671 (1981) (improper to ban live
entertainment throughout the community).
See also Frisby v. Schultz, 487 U.S. 474,485,
108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) ("A
complete ban can be narrowly tailored, but
only if each activity within the proscription's
scope is an appropriately targeted evil.").
FN130. Time, 468 U.S. at 644, 104 S.Ct.
3262 (statute allowed the "printing, pub-
lishing, or importation... of illustrations of...
any ... obligation or other security of the
United States ... for philatelic, numismatic,
educational, historical, or newsworthy pur-
poses in articles, books, journals, newspa-
pers, or albums....") (ellipsis in Time ), 468
U.S. at 648, 104 S.Ct. 3262 ("A determina-
tion concerning the newsworthiness or edu-
cational value of a photograph cannot help
but be based on the content of the photograph
and the message it delivers."), 468 U.S. at
649, 104 S.Ct. 3262 (purpose requirement
was content based).
FN131. R.A.V. v. City of St. Paul, 505 U.S.
377, 380-81, 112 S.Ct. 2538, 120 L.Ed.2d
305 (1992) (finding the following statute to
be a content-based restriction: "Whoever
places on public or private property a sym-
bol, object, appellation, characterization or
graffiti, including, but not limited to, a
burning cross or Nazi swastika, which one
Page 33
knows or has reasonable grounds to know
arouses anger, alarm or resentment in others
on the basis of race, color, creed, religion or
gender commits disorderly conduct and shall
be guilty of a misdemeanor.").
FN132. 491 U.S. at 411 n. 7, 109 S.Ct 2533
(emphasis in Johnson).
FN133.M at 411-12, 109 S.Ct. 2533.
FN134.M at 411 n. 7, 109 S.Ct 2533.
FN135. R.A.V., 505 U.S. at 394 n. 7, 112
S.Ct 2538 (emphasis in original).
FN 136. Sorrell v. IMS Health, U.S.
, 131 S.Ct. 2653,2667,180L.Ed.2d544
(2011)(quoting R.A.V., 505 U.S. at 382, 112
S.Ct. 2538); Lo, 424 S.W.Sd at 14-15.
S.Ct. at 2738 (quoting Playboy, 529 U.S. at
818, 120 S.Ct. 1878).
FN138. R.A.V., 505 U.S. at 395, 112 S.Ct.
2538.
FN139. Snyder, 131 S.Ct. at 1220.
FN140. TEX. PENAL CODE 21.15(bX2).
FN141.M 21.15(b)(2)(B)(i).
FN 142. The culpable mental state need only
be an alternative element of subsection (b)(2)
because subsection (b)(2) aheady requires
that the person photographed or recorded be
in a place in which privacy interests are sub-
stantiala bathroom or private dressing
room. But in subsection (b)(1), the privacy
culpable mental state would need to be a
conjunctive element to serve a limiting
function. We express no opinion on whether
adding this culpable mental state as a con-
junctive element would be sufficient, alone,
to make subsection (b)(1) constitutional.
FN143. SeeRA.V, 505 U.S. at 381 n. 3, 112
S.Ct. 2538 (contrasting technical "over-
breadth" claim-that regulation violated rights
of too many third parties-with claim that
statute restricted more speech than the con-
stitution permits, even as to the defendant,
because it was content based).
FN144. Ferber, 458 U.S. at 769, 102 S.Ct.
3348.
FN145. Id. at 770, 102 S.Ct. 3348.
FN146. Free Speech Coalition, 535 U.S. at
244, 122 S.Ct. 1389.
FN 147. Time, 468 U.S. at 651 n. 8, 104 S.Ct.
3262.
FN148. See Stevens, 559 U.S. at 474, 130
S.Ct. 1577.
FN 149. See Lo, 424 S.W.Sd at 25 n. 71
(quoting Nyabwa, 366 S.W.Sd at 712 (Keller,
P.J., dissenting)).
FN150. We do not address issues relating to
the right of publicity of a professional actor
or entertainer that might be infringed by the
recording of the professional's likeness or
performance. See Keller v. Electronic Arts,
724 F.Sd 1268, 1273-1279 (9th Cir.2013);
Moore v. Weinstein Co., 545 Fed.Appx. 405,
408-09 (6th Cir.2013).
Page 34
FN151. By "purely public," we mean pho-
tographs of a subject who is in public where
the photographed areas are exposed to the
public.
FN152. Stevens, 559 U.S. at 480, 130 S.Ct.
1577.
FN 153. See id. ("This prosecution is itself
evidence of the danger in putting faith in
Government representations of prosecutorial
restraint.").
FN154. See Arguellez v. State, 409 S.W.3d
657 (Tex.Crim.App.2013) (photographs at a
swimming pool at a public park); Ramirez v.
State, 2013 Tex.App. LEXIS 1106, *l-2
(Tex.App-Eastland 2013, no pet.) (not des-
ignated for publication) (Defendant was ob-
served squatting and aiming his camera at the
posteriors of underage females at jewelry
store at a mall. Defendant tried to hide media
card containing photographs and was ulti-
mately convicted of tampering with evi-
dence); Cooper v. State, 326 S.W.Sd 757,
758-59 (Tex.App.-Texarkana 2010, pet.
granted to delay mandate, mandate later is-
sued) (Video recordings were made of fe-
males walking down the sidewalk, or down
the street, in front of the defendant's home or
business. The subjects were fully clad and
were not in a private area, but the zoom
function on camera was used at various times
to obtain close-ups of specific parts of female
anatomy, and it was those close-ups that were
used to show the defendant's intent to arouse
or gratify sexual desire. Court of appeals
acquitted defendant on the basis that the ev-
idence was insufficient to show that he made
the recordings.); McKissick v. State, 209
S.W.Sd 205, 208 (Tex.App.-Houston [1st
Dist] 2006, pet. refd) (Photographs were
taken of females at a beach, including those
that depicted the mid-sections of two girls,
between the ages often and twelve, "the rear
end of a young female," the "crotch area of a
young female," "the back of a female," and a
"waist shot." A later search of defendant's
home for additional evidence of improper
photography yielded evidence of child por-
nography, and defendant was convicted of
possession of child pornography.).
FN155. Cooper, 326 S.W.Sd at 757-58.
FN156. 409S.W.3dat664.
FN157.M
FN 158. At most, Arguellez held that the po-
lice in that particular case did not have
enough facts at the time of the stop to raise a
reasonable suspicion about the elements of
intent, see id. at 662 n. 4 (holding that the
perspective of the photographsfocusing on
breasts, nether regions, and rear endscould
not be a basis for the stop because it was the
evidence obtained from the stop), or lack of
consent, see id. at 664 (police dispatcher was
informed that an unnamed man in a described
motor vehicle was seen taking photographs
of people at a public swimming pool).
Tex.Crim.App.,2014.
Ex parte Thompson
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