A Texas state law prohibiting people from taking photographs “with the intent to arouse or gratify the sexual desire of any person” if the person being photographed does not consent is unconstitutional, according to the state’s highest criminal court. Under this decision, so-called “creepshot” photos, where men often take photos of unconsenting women that they encounter on the street, are legal in Texas.
The facts of this particular case are far more disturbing than a more ordinary case where a man spots an adult woman that he finds attractive and then snaps a picture of her. According to the Houston Chronicle, a man named Ronald Thompson was charged with “26 counts of improper photography after taking underwater pictures of clothed children — most wearing swimsuits — at a San Antonio water park.”
Yet, as the Texas Court of Criminal Appeals explains in its opinion, the mere fact that this law applies to cases that are disturbing — or even the fact that it criminalizes some activity that is not protected by the First Amendment — is not sufficient to save the law from a constitutional challenge. “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.”
A major thrust of the court’s reasoning is that, when a person produces photos that would otherwise be protected by the First Amendment, the fact that they are motivated by sexual desire (or nearly any other particular motivation) cannot make an otherwise constitutionally protected act illegal. “[W]hen the intent is something that, if accomplished, would constitute protected expression,” Presiding Judge Sharon Keller wrote for the court, “such an intent cannot remove from the ambit of the First Amendment conduct that is otherwise protected expression.”
The court did suggest that a more narrowly drawn law would survive constitutional scrutiny — “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.” Thus, if the Texas legislature responds to this decision with a more narrowly tailored ban on “upskirt” photography, for example, it is likely that this law would be upheld.
In this sense, the Texas court’s decision resembles another decision last March by a Massachusetts court holding that the state’s “Peeping Tom” laws did not extend to non-consensual photographs up a woman’s skirt or dress. The Massachusetts legislature responded to that court decision in just 36 hours, passing a law that specifically bans upskirt photos.
Texas’s legislature can now take similar action to ensure that women in that state will not be the victims of predatory photographers.