The Texas Court of Criminal Appeals, in Ex Parte Thompson, (Tex. Ct. Crim. App. Sept. 17, 2014) has ruled that the Texas statute barring improper photography in a public place is unconstitutional. The offense make it illegal to take a photo or make a visual image of a person in a location other than a bathroom, or a private dressing room, without their consent, and with the intent to arouse or gratify the sexual desire of any person. The Court held that such a photograph or image is a form of expression, not unlike an artist’s pen or paint brush. Such images are protected by the First Amendment because they are a form of expression and involve protected thought. Privacy interests don’t extend to people in public places to the degree that a statute can ban someone from having sexual thoughts about someone they see in public. “A person who walks down a public street cannot prevent others from looking at him or her with sexual thoughts in their head.” Such a statute is overbroad: it could apply to even an entertainment photographer taking a photo of a celebrity or other attractive person in public. The Court said that a more narrowly drawn statute, such as one protecting photos made in private places, or of parts of a person’s body which he or she intends to be private, might pass constitutional muster.
Wade Russell, Austin Criminal Defense Attorney