Texas court refuses to review broad photography law

Friday, March 30, 2012

The Texas Court of Criminal Appeals has refused to examine the constitutionality of a state law criminalizing the taking of photographs without a person’s consent for the intent of sexual gratification. The court missed an opportunity to provide some much-needed constitutional analysis.

The case began in June 2010, when Collins O. Nyabwa was arrested on three counts of improper photography under Texas Penal Code section 21.15(b)((1), which provides that an offense is committed if a person:

(1)    Photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location 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 desire of any person …

(The state has a separate law addressing photographing a person in a bathroom or private dressing room.)

According to Donna Hawkins, assistant district attorney of Harris County, which includes Houston, Nyabwa was convicted in July 2011 and sentenced to a year in state jail. He was taking photos up the skirts of women in a store.

Nyabwa filed a pretrial writ of habeas corpus, arguing that the statute is unconstitutional and that he should never have been charged. A trial court in Harris County denied the motion. In December 2011, a Texas appeals court affirmed this denial and rejected Nyabwa’s constitutional arguments.

Nyabwa contended that the statute violated the First Amendment and was too broad and vague. The appeals court rejected the First Amendment argument, writing that the law did not regulate speech at all but rather regulated a “person’s intent in creating a visual record and not the contents of the record itself.”

Nyabwa then appealed to the Texas Court of Criminal Appeals, which denied review on March 28. However, Presiding Judge Sharon Keller wrote a dissenting opinion, pointing out that the Texas statute does regulate thought and should trigger First Amendment review.

“The Supreme Court has recognized that the First Amendment includes, as a component of freedom of expression, the protection of ‘freedom of thought,’ including the freedom to think sexual thoughts,” she wrote. “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.”

Keller also noted that the Texas law is quite broad: “This statute is virtually unbounded in its potential application. The photographing of anyone, anywhere, and under any circumstance can be an offense so long as the photograph was taken without consent and the actor harbored the requisite mental state.”

Judge Keller accurately characterized the Texas photography statute as too much of a catch-all. The Texas Court of Criminal Appeals could have helped matters by reviewing the case and evaluating the constitutional issues.

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