Cause Number _____________

In The

District Court of Williamson County

277th Judicial District
Williamson County, Texas

In re

____________

Petition for Writ of Habeas Corpus

and

Brief in Support Thereof

Lance Stott
Attorney for Applicant
SB# 00797818
812 San Antonio, Suite 403
Austin, Texas 78701
(512) 472-0557 telephone
(512) 472-9908 facsimile

1
 Petition for Writ of Habeas Corpus

Lance Stott, Petitioner and attorney for ____________, makes this Petition for

Writ of Habeas Corpus on behalf of ____________, Applicant, and in support thereof

would show the Court that the Texas law "Improper Photography" is unconstitutional,

because it violates the First Amendment of the United States Constitution, and the

Constitution of the State of Texas, Article I, §8. Because an unconstitutional law is as

no law, and is void, it may not be made the basis for the prosecution of any person, nor

may any person be held to bond, or otherwise be deprived of liberty, on the basis of

such a law.

Applicant is illegally restrained in his liberty by the Sheriff of Williamson County, in

that he is held to bond in cause number 09-308-k277 The State of Texas v.

____________, in Williamson County, Texas.

For these reasons, and for the reasons set forth in the Petitioner's Brief in

Support of this Petition, Petitioner prays for relief. Specifically, Petitioner prays for an

Order from this Court requiring the State of Texas to dismiss its prosecution of

Applicant, and for the reason that Texas Penal Code §21.15(b)(1) is unconstitutional.

Respectfully Submitted,

________________________
Lance Stott
Attorney for Applicant
SB# 00797818
812 San Antonio, Suite 403
Austin, TX 78701
(512) 472-0557 telephone
(512) 472-9907 facsimile

2
 Petitioner's Oath

"On my Oath, I hereby state that the allegations contained within my "Petition for

Writ of Habeas Corpus" are true, according to my belief."

_______________________
Lance Stott, Petitioner

Certificate of Service

I hereby certify that the attached Application for Writ of Habeas Corpus and Brief
was served on the District Attorney's Office of Williamson County, this the ___ day of
June, 2009.

______________________
Lance Stott,
Attorney for Applicant

3
 Cause Number ____________

In Re * In the District Court

*
____________ * 277th Judicial District
*
Applicant * Williamson County, Texas

ORDER

CAME TO BE HEARD, this, the ____ day of _______, 2009 the foregoing

Petition for Writ of Habeas Corpus in the cause referenced above, and having heard the

same, the Petition is hereby: GRANTED/ DENIED.

________________________
Judge Presiding

4
 Index of Authorities

Ashcroft v. American Civil Liberties Union, 542 US 656 (2004).

Ashcroft v. Free Speech Coalition, 535 US 234 (2002).
Burson v. Freeman, 504 US 191 (1992).
Burstyn, Inc. v. Wilson, 343 US 495 (1952).
Carey v. Brown, 447 US 455 (1980).
City of Chicago v. Morales, 527 U.S. 41 (1999).
City of Houston v. Hill, 482 US 451 (1987).
Davenport v. Garcia, 834 SW2d 4, Tex. (1992).
Democracy Coalition v. City of Austin, 141 S.W.3d 282 (Tex.App.-Austin, 2004).
Erznoznik v Jacksonville, 422 US 205, 217 (1975).
Ex parte Ellis, 275 SW3d 74, (Tex.App- Austin, 2008).
Ex parte Mattox, 883 SW2d 93 (Tex.App.-Austin, 1984).
Ex parte Siebold, 100 U.S. 371 (1879).
Ex parte Weise, 55 S.W.3d 617 (Tex.Crim.App., 2001)
Grayned v. City of Rockford, 408 US 104, 108 (1972).
Griswold v. Connecticut, 381 US 479 (1965).
In re MML, 241 SW3d 546 (Tex.App.-Amarillo 2006)
Jacobellis v. Ohio, 378 US 184 (1964)
Johnson v. State, 755 S.W.2d 92 (Ct.Crim.App, 1988).
Karenev v. Texas, ___ 3d ___ (Ct.Crim.App., 2009)
Kimbrough v. Coca-Cola, 521 S.W.2d 719 1975).
Massachusetts v. Oakes, 491 U.S. 576 (1989).
McNamara v. Freedom Newspapers, 802 S.W.2d 901 (Tex.App.-Corpus Christi, 1991).
Nussenzweig v. DiCorcia, 11 Misc 3d 1051, Supreme Court, New York County (2006).
R.A.V. v. City of St. Paul, 505 US 377 (1992).
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997).
Republican Party of Minn. v. White, 536 US 765 (2002).
Sable Communications v. Federal Communications Commission, 492 US 115 (1989).
Simon & Schuster v. New York State Crime Victims Board, 502 US 105 (1991).
Sullivan v. State, 986 SW2d 708 (Tex.App.-Dallas, 1999).
Texas Dept. of Transp. v. Barber, 111 SW3d 86, 93 (Tex.2003).
Time, Inc., v. Hill, 385 U.S. 374 (1967).
United States v. Playboy Entertainment Group, 529 US 803 (2000).
United States v. Stevens, 071808 FED3, 05-2497, (3d. Cir. 2008).
United States v. Williams, 553 US ____, (2008).
Vasquez v. State, ___ 3d ___, (Tex.App.-Dallas, 2007).
Ward v. Rock Against Racism, 491 US 781 (1989).

5
 Issue Presented

The issue presented is whether Penal Code §21.15(b)(1), "Improper

Photography," violates the First Amendment of the United States Constitution and

Article I, §8 of the Constitution of the State of Texas.

Statement of Facts

Applicant was arrested on a charge of "Improper Photography," and has posted

bail.1 He is alleged to have transmitted images without consent and with the intent to

arouse.

1 This is a pretrial, facial attack on the constitutionality of a statute. "The mere fact that appellant relied upon the
evidence at trial shows that his complaint is not a facial attack because that type of attack can and must be made
without reference to evidence. It is an attack upon the face of the statute in isolation. Once it does or must refer
to specific evidence it has passed out of the "facial attack" arena and has become something else. Karenev v.
Texas, ___ 3d ___ Ct.Crim.App. (2009). Cochran, J., concurring.

6
 Summary of the Argument

"Improper Photography" criminalizes speech based on its content. When a law

criminalizes speech based on its content, it "abridges" the freedom of speech within the

meaning of the US Constitution, and "curtails the liberty of speech" within the meaning

of the Constitution of the State of Texas. While Texas jurisprudence2 regarding Article I,

§8 is limited, the US Supreme Court has developed a substantial body of law explaining

the meaning of "freedom of speech."

• First, when the government abridges speech, it loses the presumption that it is
acting constitutionally. A law that limits speech is presumed unconstitutional.
• Second, the burden of proof shifts from the person whose speech is burdened to
the government. When the government restricts speech it is the government that
must prove it's acting constitutionally.
• Third, the government may restrict speech only when it has a compelling interest.
It is up to the State to show it has a compelling interest, and to demonstrate that
the restriction advances that interest.
• Fourth, the state may only limit as much speech as necessary to achieve its
purpose. Even if the government has a compelling reason for restricting speech,
if legislation restricts speech that is unrelated to that purpose, it is
unconstitutional. Legislation must be "narrowly tailored" to limit as little speech
as possible.
• Fifth, if there is a less restrictive way to achieve its purpose, the state must use
that method.

While the government may have a compelling interest in protecting people's

privacy, "Improper Photograph," is not narrowly tailored. It suppresses substantially

more speech than necessary, and alternative means are readily available, which would

advance the State's interest in a less-restrictive and constitutionally permissible way.

2 In 1992, the Supreme Court of Texas found that the Texas Constitution offered additional protection to subjects
of gag orders, beyond that which is offered by the First Amendment. Davenport v. Garcia, 834 SW2d 4, Tex.
(1992). More recently, however, Texas Courts have followed a more conservative approach. Typically, Article I
rights are found to be coextensive with those of the US Constitution.

7
 Argument

Basis for the Writ

Applicant's Application for Writ of Habeas Corpus is predicated on the facial

invalidity of Section 21.15(b) of the Texas Penal Code.3 The law, "Improper

Photography," violates the First Amendment to the Constitution of the United States:

"Congress shall make no law... abridging the freedom of speech..."4 And it violates

Article I of the Texas Constitution, §8: "No law shall ever be passed curtailing the liberty

of speech." Because it is unconstitutional, it "is as no law," and may not be enforced

against Applicant, or against anyone.5

Jurisdiction and Standing

The writ of habeas corpus is the remedy to be used when someone is illegally

restrained in his liberty.6 A person is restrained in his liberty when he is held to bond.7 A

statute alleged to violate the Constitution may be challenged through application for a

writ of habeas corpus.8

3 "[W]hat is the difference between a facial challenge and an 'as applied' challenge to the constitutionality of a
penal statute...? A facial challenge to the constitutional validity of a statute considers only the text of the
measure itself, and not its application to the particular circumstances of an individual. A party asserting a facial
challenge to a statute seeks to vindicate not only his own rights, but also those of others who may also be
adversely impacted by the statute in question. Karenev v. State, ___ SW3d ___ Tex.Crim.App. (2009).
4 The First Amendment has been made applicable to the states through the operation of the Fourteenth
Amendment.
5 Ex parte Siebold, 100 U.S. 371,376 (1879). "An unconstitutional law is void, and is as no law. An offense
created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a
legal cause of imprisonment."
6 Texas Code of Criminal Procedure, Art. 11.01.
7 Ex parte James Mattox, 883 SW2d 93, 95 Tex.App.-Austin (1984). See also Ex Parte Weise, "[Defendant] was
restrained of his liberty within the meaning of 11.01 of the Texas Code of Criminal Procedure when he was
charged with illegal dumping and released on bond to await trial."
8 Ibid. See also Ex parte Ellis, 275 SW3d 74, 78 Tex.Ct.App - Austin (2008), and Ex parte Weise, 55 S.W.3d 617,
620 (Tex.Crim.App.2001). "We have long held that when there is a valid statute or ordinance under which a
prosecution may be brought, habeas corpus is generally not available before trial to test the sufficiency of the
complaint, information, or indictment. But we have recognized certain exceptions to this rule. One exception is

8
"Improper Photography,"

"The first step in overbreadth analysis is to construe the challenged statute; it is

impossible to determine whether a statute reaches too far without first knowing what the

statute covers." United States v. Williams, 553 US ____, (2008).

§21.15(b)(1), "Improper Photography," states as follows:

(b) A person commits an offense if the 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;

§21.15(b)(1) prohibits five activities, three of which involve creating images, and

two of which involve sending them:

1) Photographing someone, without consent, with the intent to arouse.9

2) Videotaping someone, without consent, with the intent to arouse.
3) Recording someone's image, without consent, with the intent to arouse.
4) Broadcasting someone's image, without consent, with the intent to arouse.
5) Transmitting someone's image, without consent, with the intent to arouse.

Because "transmit" means to send or convey, and includes the act of

broadcasting; and photography and videography are simply ways of recording visual

images, §21.15(b)(1) can be more concisely stated to prohibit:

1) Recording a person's image, without consent, with the intent to arouse.

2) Transmitting a person's image, without consent, with the intent to arouse.

when the applicant alleges that the statute under which he or she is prosecuted is unconstitutional on its face;
consequently, there is no valid statute and the charging instrument is void."
9 Applicant omits the fourth element, "at a location that is not a bathroom or private dressing room," for the sake
of concision, and because the element is irrelevant.

9
 It is important to recognize that each provision operates independently.

"Improper Photography" can be committed in either one of two different ways; either by

recording, or by transmitting. The fact that an image was recorded legally (with

consent) does not relieve anyone of the obligation to obtain consent before transmitting

it. A person must obtain permission, in other words, both to send an image, and to

record it, in order to comply with the law.

"Improper Photography" Restricts Protected Speech

Videotaping, video-recording, photography, broadcasting, and otherwise

transmitting images are all forms of speech. "The First Amendment literally forbids the

abridgment only of ‘speech,’ but we have long recognized that its protection does not

end at the spoken or written word.” Texas v. Johnson, 491 U.S. 397 (1989). "[W]e

conclude that expression by means of motion pictures is included within the free speech

and free press guaranty of the First and Fourteenth Amendments." Burstyn, Inc. v.

Wilson, 343 US 495, 502 (1952).

The right of Free Speech, of course, is not unlimited. "The freedom of speech

has its limits; it does not embrace certain categories of speech, including defamation,

incitement, obscenity, and pornography produced with real children." Ashcroft v. Free

Speech Coalition, 535 US 234 (2002). Other categories of unprotected speech include

"fighting words" and conspiracies to commit crimes.

"Improper Photography," however, does not fall within any of these categories, or

any other category the Supreme Court has recognized as unprotected.10 Rather, the
10 "The Supreme Court has not recognized a new category of speech that is unprotected by the First Amendment in
over twenty-five years." United States v. Stevens, 071808 FED3, 05-2497, (3d. Cir. 2008).

10
conduct §21.15b)(1) prohibits has been explicitly identified as protected speech.

"Motion pictures are within the ambit of the constitutional guarantees of freedom of

speech and of the press." Jacobellis v. Ohio, 378 US 184 (1964). "Photography,

painting, and other two-dimensional forms of artistic reproduction... are plainly

expressive activities." Massachusetts v. Oakes, 491 U.S. 576, 590 (1989). The law, in

other words, is not aimed at "core criminal conduct," but at speech.11

Nor does the fact that the law requires a sexual purpose (an "intent to arouse")

take it out from under the purview of the First Amendment. "Sexual expression which is

indecent but not obscene is protected by the First Amendment." Sable

Communications v. Federal Communications Commission, 492 US 115, 126 (1989).

Similarly, lack of consent does not put §21.15(b)(1) beyond the reach of the First

Amendment. There is no general right to not be photographed in public, and lack of

consent is not an exception to freedom of speech, or to freedom of the press. Aside

from some specific torts - invasion of privacy, commercial misappropriation, and false

light, the First Amendment protects photographers not only from criminal prosecution,

but from civil litigation as well.12

In McNamara v. Freedom Newspapers, for example, a newspaper published an

image of a student's genitalia, which were exposed during a football game. When the

student sued, the newspaper was granted summary judgment. On appeal, the court

said, "We hold that because the published photograph accurately depicts a public,

11 City of Houston v. Hill, 482 US 451, 459 (1987).

12 Texas recognizes invasion of privacy and misappropriation, but not false light. "On balance, the marginal benefit
to be achieved by permitting recovery against non-defamatory speech not addressed by any existing tort is
outweighed by the probable chilling effect on speech and, in some cases, on freedom of the press, that would
result from recognition of the false light tort. For the reasons expressed in this opinion, we expressly decline to
recognize the tort of false light." Cain v. Hearst Corp. 878 SW2d 577 (Tex. 1994).

11
newsworthy event, the First Amendment provides the Newspaper with immunity from

liability for damages resulting from its publication of McNamara's photograph."

McNamara v. Freedom Newspapers, 802 S.W.2d 901, 905 (Tex.App.-Corpus Christi,

1991).

In Nussenzweig v. DiCorcia, a photographer recorded images of people in Times

Square, without their knowledge or consent, and sold them at a gallery.13 Nussenzweig,

a Hasidic Jew, said DiCorcia's actions violated the tenets of his religion. The Court

granted summary judgment for the defendant:

Clearly, plaintiff finds the use of the photograph bearing his

likeness deeply and spiritually offensive. The sincerity of his
beliefs is not questioned by defendants or this court. While
sensitive to plaintiff's distress, it is not redressable in the
courts of civil law. In this regard, the courts have uniformly
upheld Constitutional 1st Amendment protections, even in
the face of a deeply offensive use of someone's likeness.
Thus, in Arrington, supra, the Court of Appeals recognized
that an African American man's image was being used in a
manner that conveyed viewpoints that were offensive to him.
It nonetheless found the use of the image protected. In
Costlow v. Cusimano, 34 AD2d 196 (4th dept.) the court held
that the parents of children who died by suffocation when
they trapped themselves in a refrigerator could not assert a
privacy claim to prevent defendant from publishing an article
with photographs of the premises and the deceased children,
because the article was "newsworthy". These examples
illustrate the extent to which the constitutional exceptions to
privacy will be upheld, notwithstanding that the speech or art
may have unintended devastating consequences on the
subject, or may even be repugnant. They are, as the Court of
Appeals recognized in Arrington, the price every person must
be prepared to pay for in a society in which information and
opinion flow freely. 55 NY2d at 442. Nussenzweig v.
DiCorcia, 11 Misc 3d 1051, Supreme Court, New York
County (2006).

13 10 prints of the photo were sold, for $20,000 to $30,000 each. Nussenzweig v. DiCorcia, 11 Misc 3d 1051,
Supreme Court, New York County (2006).

12
 In Time, Inc., v. Hill, 385 U.S. 374 (1967) the Supreme Court said,

"The guarantees for speech and press are not the preserve
of political expression or comment upon public affairs,
essential as those are to healthy government. One need only
pick up any newspaper or magazine to comprehend the vast
range of published matter which exposes persons to public
view, both private citizens and public officials. Exposure of
the self to others in varying degrees is a concomitant of life in
a civilized community. The risk of this exposure is an
essential incident of life in a society which places a primary
value on freedom of speech and of press. "

While there are no similar cases where penal laws were struck down for

attempted to criminalize taking pictures without consent, the most reasonable inference

is that there are no other laws that criminalize taking pictures without consent. That lack

of consent, in other words, is not a constitutional basis for criminalizing photography has

simply been taken for granted.

"Improper Photography" is Content-Based, and is Subject to Strict Scrutiny.

When considering laws that restrict free speech, the Supreme Court uses a two-

tier approach. When speech is restricted because of its content, the Court applies

"strict scrutiny." When speech is restricted incidentally, or as part of a "time, place, and

manner," regulation, the Court uses a less exacting standard, sometimes called

"intermediate scrutiny."

To be content-neutral, a restriction must be both viewpoint-neutral and subject-

matter neutral. Texas Dept. of Transp. v. Barber, 111 SW3d 86, 93 (Tex.2003). To be

subject-matter neutral, a regulation must not be based on the speech's topic. Carey v.

Brown, 447 U.S. 455, 471, (1980).

Intermediate scrutiny has been applied in cases involving demonstrating at

13
certain locations (private homes and schools, for example), zoning restrictions,

leafleting, and noise restrictions.

In Ward v. Rock Against Racism, 491 US 781 (1989), for example, the

Respondent challenged New York City's attempt to regulate the volume of amplified

music at a bandshell in Central Park. The Court found that while music is a form of

protected speech, the regulation was nevertheless "a reasonable regulation of the place

and manner of expression." Ward, at 803.

In reaching this conclusion, the Court explained, "Our cases make clear that...

the government may impose reasonable restrictions on the time, place, or manner of

protected speech, provided the restrictions are justified without reference to the content

of the regulated speech, that they are narrowly tailored to serve a significant

governmental interest, and that they leave open ample alternative channels for

communication of the information." Ward, 791.

The restriction was content-neutral because its justification - to prevent "undue

intrusion into residential areas and other areas of the park" - had nothing to do with the

content of the music being regulated, merely its volume. Ward, 792.

Examples of content-based restrictions include a federal rule that required cable

television networks to either scramble or block sexually-oriented programming between

6am to 10pm;14 COPA, a federal law that would have criminalized posting sexual

material on the Internet without first taking affirmative steps to prevent children from

seeing it;15 a Minnesota canon of judicial conduct that would have prohibited judicial

candidates from announcing their views on certain political issues16; and New York's

14 United States v. Playboy Entertainment Group, 529 US 803 (2000).

15 Ashcroft v. American Civil Liberties Union, 542 US 656 (2004).
16 Republican Party of Minn. v. White, 536 US 765 (2002).

14
"Son of Sam" law, which would have redirected funds owed to authors of books about

crime to crime victims.17

These cases stand for the proposition that when the government selects out a

particular category of speech - whether it's sex, (Playboy, Ashcroft) or politics,

(Republican Party) or crime (Simon & Schuster) - the restriction will be subjected to

strict scrutiny. "This Court has held that the First Amendment's hostility to content-

based regulation extends not only to a restriction on a particular viewpoint, but also to a

prohibition of public discussion of an entire topic."18 Burson v. Freeman, 504 US 191,

197 (1992).

§21.15(b)(1) is a content-based restriction on speech. It cannot be justified

"without reference to the content of the regulated speech." Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989). It singles out speech on a particular topic,19 and

criminalizes speech on the basis of it's content - on the basis of whether it's sexually

arousing.20

§21.15(b)(1) is Presumptively Invalid.

"Content-based regulations of speech are presumptively invalid." R.A.V. v. City

17 Simon & Schuster v. New York State Crime Victims Board, 502 US 105, 118 (1991). "The Son of Sam law
establishes a financial disincentive to create or publish works with a particular content. In order to justify such
differential treatment, the State must show that its regulation is necessary to serve a compelling state interest and
is narrowly drawn to achieve that end."
18 The Court was referring to, among others, Simon & Schuster: "[a] statute restricting speech about crime is
content-based." Burson, 197.
19 Burson, Id: The Tennessee restriction under consideration, however, is not a facially content-neutral time, place,
or manner restriction. Whether individuals may exercise their free speech rights near polling places depends
entirely on whether their speech is related to a political campaign." Similarly, "Improper Photography" is not
content-neutral; whether one may send or capture an image without consent depends entirely on whether the
image is arousing.
20 There can be no difference between banning speech because it's arousing, and banning it because it's intended to
arouse. Whether an image is criminal will always be dependent, in any event, on the nature of the image itself.
"The intent to gratify sexual desire... may be inferred by the act itself." In re MML, 241 SW3d 546, 558
(Tex.App.-Amarillo 2006). Rarely, if every, will someone be prosecuted for taking a picture of an arousing tree.

15
of St. Paul, 505 US 377, 382 (1992).

"Content-based regulations are presumptively invalid, and can withstand strict

scrutiny only if precisely drawn to serve a compelling state interest." Democracy

Coalition v. City of Austin (Tex. App. - Austin), 141 S.W.3d 282, 298 (2004).

The State Bears the Burden of Proving §21.15(b)(1) is Constitutional.

"When the Government restricts speech, the Government bears the burden of

proving the constitutionality of its actions." United States v. Playboy Entertainment

Group, 529 U.S. 803 (2000).

"Content-based prohibitions, enforced by severe criminal penalties, have the

constant potential to be a repressive force in the lives and thoughts of a free people. To

guard against that threat the Constitution demands that content-based restrictions on

speech be presumed invalid, and that the Government bear the burden of showing their

constitutionality." Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004).

The State Must Identify a Compelling Interest.

“[T]he Government bears the burden of identifying a substantial interest and

justifying the challenged restriction.” Reno v. American Civil Liberties Union, 521 U.S.

844, 879 (1997).

If the State's interest is privacy, there can be little doubt that privacy is a

compelling state interest.

Indeed, the right to privacy is derived from the penumbras and emanations of the

First Amendment itself. "[T]he First Amendment has a penumbra where privacy is

16
protected from governmental intrusion." Griswold v. Connecticut, 381 US 479 (1965).

The Supreme Court reaffirmed the constitutional significance of the right to privacy in

Lawrence v. Texas. "The Petitioners are entitled to respect for their private lives... The

Texas statute furthers no legitimate state interest which can justify its intrusion into the

personal and private life of the individual." 539 U.S. 558 (2003)

If the interest is privacy, however, §21.15(b)(1) does little to advance it.

This is because §21.15(b)(1), by its own terms, limits itself only to a small fraction

of the instances in which privacy rights might be implicated, while addressing itself to a

large number of instances in which no privacy concern exists.

§21.15(b)(1) concerns itself only with violations of privacy that are done with the

intent to arouse. Any violation that is conducted for any other reason - to humiliate, to

embarrass, for the sake of spite, or for revenge, for the purpose of blackmail, extortion,

economic or financial gain, or for political advantage, to entertain, to satisfy someone's

morbid or idle curiosity - is ignored.

Meanwhile, it penalizes a wide range of conduct that has nothing to do with

privacy. Anyone who takes a picture of someone with the wrong intent is subject to

prosecution - even if the subject of the photograph is in a public place. Similarly,

anyone who transmits a photograph without consent is subject to prosecution, even if,

at the time the photograph was taken, privacy concerns were wholly absent - or, for that

matter, even if the photograph was taken with consent.

While privacy is a compelling government interest, "Improper Photography" does

little to advance it, particularly in light of the wide range of speech the law attempts to

criminalize.

17
The State Must Prove "Improper Photography" is Narrowly Tailored.

In addition to identifying a compelling State interest, the State must also show

that the legislation is "narrowly tailored" to further that interest. "For even the most

legitimate goal may not be advanced in a constitutionally impermissible manner." Carey

v. Brown, 447 US 455, 464 (1980).

"[A] facially content-based restriction on political speech in a public forum must

be subjected to exacting scrutiny: the State must show that the regulation is necessary

to serve a compelling state interest and that it is narrowly drawn to achieve that end...

To survive strict scrutiny... a State must do more than assert a compelling state interest

-- it must demonstrate that its law is necessary to serve the asserted interest... [W]e

readily acknowledge that a law rarely survives such scrutiny." Burson v. Freeman, 504

US 191, 198 (1992).

When Simon & Schuster challenged New York's "Son of Sam" law, the Supreme

Court noted that the State has "an undisputed compelling interest in ensuring that

criminals do not profit from their crimes." Simon & Schuster v. New York State Crime

Victims Board, 502 US 105, 119 (1991). The Court nevertheless struck down the law

because it was not narrowly tailored:

"As a means of ensuring that victims are compensated from

the proceeds of crime, the Son of Sam law is significantly
overinclusive... [T]he statute applies to works on any subject,
provided that they express the author's thoughts or
recollections about his crime, however tangentially or
incidentally... Had the Son of Sam law been in effect at the
time and place of publication, it would have escrowed
payment for such works as The Autobiography of Malcolm X,
which describes crimes committed by the civil rights leader
before he became a public figure; Civil Disobedience, in

18
 which Thoreau acknowledges his refusal to pay taxes and
recalls his experience in jail; and even the Confessions of
Saint Augustine, in which the author laments "my past
foulness and the carnal corruptions of my soul," one instance
of which involved the theft of pears from a neighboring
vineyard." (Simon & Schuster, at 121).

§21.15(b)(1) is similarly overinclusive, because it is not narrowly tailored to

protect anyone's privacy. If it were narrowly tailored, it would distinguish on the basis of

whether a photograph compromised someone's privacy, not on the basis of whether it

was arousing.

Less Restrictive Means are Readily Available.

When the government burdens speech, it must do so in the least restrictive way

possible. If another, less restrictive method is available, the more restrictive method is

unconstitutional.

"When plaintiffs challenge a content-based speech restriction, the burden is on

the Government to prove that the proposed alternatives will not be as effective as the

challenged statute." Ashcroft, 542 US 656 (2004).

"A statute that "effectively suppresses a large amount of speech that adults have

a constitutional right to receive and to address to one another... is unacceptable if less

restrictive alternatives would be at least as effective in achieving the legitimate purpose

that the statute was enacted to serve." Reno, 521 U.S., at 874.

If the purpose of §21.15(b)(1) is to protect citizens' privacy, any other legislation

would be less restrictive, other than §21.15(b)(1), so long as it limited itself to

addressing situations in which an actual privacy interest was at stake. In other words, a

statute that criminalized taking pictures of people who had a reasonable expectation of

19
privacy, and had not consented, would be less restrictive than §21.15(b)(1).

If the purpose of §21.15(b)(1) is something else - for example, to prohibit what is

sometimes called "upskirt photography," or "video voyeurism" - then less restrictive

methods are readily available.

18 USC Sec. 1801, for example, prohibits a person from capturing the image of a

private area of another individual, without consent, "under circumstances in which the

individual has a reasonable expectation of privacy."21

18 USC Sec. 1801 is less restrictive than §21.15(b)(1), because it applies to

circumstances in which there is "a reasonable expectation of privacy." Furthermore, it is

readily available, because it is the law of the United States.

Arkansas similarly prohibits using a camera to secretly record a part of a person's

body that is covered with clothing and "for which the person has a reasonable

expectation of privacy."22 Arkansas' law is less restrictive than §21.15(b)(1), and is

readily available.

21 "Whoever, in the special maritime and territorial jurisdiction of the United States, has the intent to capture an
image of a private area of an individual without their consent, and knowingly does so under circumstances in
which the individual has a reasonable expectation of privacy, shall be fined under this title or imprisoned not
more than one year, or both."
22 Crime of video voyeurism (Ark. 5-16-101):
(a)It is unlawful to use any camera, videotape, photo-optical, photoelectric, or any other image recording device
for the purpose of secretly observing, viewing, photographing, filming, or videotaping a person present in a
residence, place of business, school, or other structure, or any room or particular location within that structure, if
that person:
(1)Is in a private area out of public view;
(2)Has a reasonable expectation of privacy; and
(3)Has not consented to the observation.
(b)It is unlawful to knowingly use a camcorder, motion picture camera, photographic camera of any type, or
other equipment that is concealed or disguised to secretly or surreptitiously videotape, film, photograph, record,
or view by electronic means a person:
(1)For the purpose of viewing any portion of the person's body that is covered with clothing and for
which the person has a reasonable expectation of privacy;
(2)Without the knowledge or consent of the person being videotaped, filmed, photographed, recorded,
or viewed by electronic means; and
(3)Under circumstances in which the person being videotaped, filmed, photographed, recorded, or
viewed by electronic means has a reasonable expectation of privacy.

20
 While most, if not all, states prohibit voyeurism and similar invasions of privacy,

Texas is the only state that attempts to do so while dispensing with the requirement that

someone's privacy is actually being invaded. Any law, therefore, that did not dispense

with that requirement that someone's privacy was being invaded would be less

restrictive than §21.15(b)(1). "When a plausible, less restrictive alternative is offered to

a content-based speech restriction, it is the Government's obligation to prove that the

alternative will be ineffective to achieve its goals." United States v. Playboy

Entertainment Group, 529 US 803, 816 (2000).

In Johnson v. State, the Court of Criminal Appeals considered the constitutionality

of Penal Code 42.09, which prohibited flag burning. In response to the State's

argument that the statute served the compelling interest of preventing breaches of the

peace, the Court noted that the statute was "so broad that it may be used to punish

protected conduct which has no propensity to result in breaches of the peace."

The Court noted another statute, 42.01, "Disorderly Conduct," more specifically

addressed the State's concern of preventing breaches of the peace, by prohibiting

conduct that "tends to incite an immediate breach of the peace." Texas Penal Code

§42.01.

"The existence of a statutory scheme other than section 42.09," the Court said,

"which addresses the same basic interest in a less restrictive manner indicates that the

legislature is aware of and able to implement an alternative to the language of section

42.09. Section 42.01... proves that the challenged statute, as it relates to breaches of

the peace, is too broad for First Amendment purposes. " Johnson v. State, 755 S.W.2d

92, 96 Ct.Crim.App (1988).

21
"Improper Photography" is Vague.

"Improper Photography" is not vague in the ordinary sense of the word - it is not

ambiguous. It prohibits recording images without consent and with the intent to arouse,

and it prohibits transmitting images without consent and with the intent to arouse. The

meaning of the language of the statute is plain.

A law may be permissibly vague, however, in three different ways. First, it's

vague if it fails to give a person of ordinary intelligence a reasonable opportunity to

know what is prohibited. Grayned v. City of Rockford, 408 US 104, 108 (1972).

Second, it's vague if it "delegates basic policy matters to policemen, judges, and juries

for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary

and discriminatory application." ibid. Finally, where a statute "abut[s] upon sensitive

areas of basic First Amendment freedoms," it is vague if it "operates to inhibit the

exercise of those freedoms." A vague law will "inevitably lead citizens to steer far wider

of the unlawful zone than if the boundaries of the forbidden areas were clearly marked."

109 (internal quotes omitted.)

"Improper Photography" is vague because it requires law enforcement and others

to make personal, subjective judgments about First Amendment speech. This is

because "intent" cannot be directly observed, and must be, and is, inferred from the act

itself. In the case of "Improper Photography," that means it will be inferred from the

content of one's speech.

For example, in In 2005 Louis Vogel23 was arrested in Tarrant County. Police

23 DFW News, Fort Worth, October 15th, 2005. Other arrests include Baldemar Vela, arrested for taking a picture
of a fully clothed woman at a WalMart in Round Rock; Robert Earl Thompson, arrested for taking pictures of
cheerleaders at a football game; and Phu V. Nguyen, arrested for taking pictures of women sunbathing on Lake

22
said they'd observed him taking suspicious photographs at an Octoberfest celebration.

"He had a camera with him," said Southlake Police Lt. Ashleigh Douglas, "It was

obvious he was taking photographs." During their investigation, police determined the

photographs were "deemed inappropriate."

"You're committing an offense," said Lt. Douglas, "if, a) you're taking a picture of

a person who hasn't given you consent to do so, and b) that picture is for the sexual

gratification of any person."

Two weeks later prosecutors dismissed the charges. "A lot of the photographs

frankly are crowd scenes," said Kurt Stallings, Tarrant County Prosecutor. "Some of

them are artistic photographs. There's a little series of photographs of a table and a

balloon."

The point is not that the prosecutor was right, or that the police were wrong.

Whether a "crowd scene" is arousing, presumably, depends on who is in the crowd, and

it is inevitable, when charged with enforcing a vague law that reasonable people will

disagree about the purpose of a photograph, and the intent of a photographer. What

seems innocent to one person will seem "improper" to someone else.24 The point is that

it's an inherently subjective judgment. The law is vague in the sense that it is

impossible to know what conduct may be deemed to be a violation. A photographer

cannot know ahead of time how prudish or intolerant an arresting officer - judge, for that

matter, or prosecutor - might be. The same, of course, applies to broadcasters of

images, and to those who transmit them. The law chills speech because while a person

may know his own intent, it is impossible to know how it will be judged by others.. A

Travis.
24 Often, the interpretation of a photograph says more about the person interpreting it than it does about the intent
of the photographer.

23
photographer, aware of this law, will steer far clear of the danger zone in order to avoid

the serious consequences that flow from an arrest or conviction of a felony sex crime.

In Reno v. ACLU, the Court noted the special concern with which it reviews

statutes that apply criminal penalties to First Amendment speech.

"Regardless of whether the CDA (Communications Decency Act) is so

vague that it violates the Fifth Amendment, the many ambiguities
concerning the scope of its coverage render it problematic for purposes of
the First Amendment... Could a speaker confidently assume that a serious
discussion about birth control practices, homosexuality... or the
consequences of prison rape would not violate the CDA? This uncertainty
undermines the likelihood that the CDA has been carefully tailored to the
congressional goal of protecting minors from potentially harmful materials.
The vagueness of the CDA is a matter of special concern for two reasons.
First, the CDA is a content-based regulation of speech. The vagueness of
such a regulation raises special First Amendment concerns because of its
obvious chilling effect on free speech. Second, the CDA is a criminal
statute. In addition to the opprobrium and stigma of a criminal conviction,
the CDA threatens violators with penalties including up to two years in
prison for each act of violation. The severity of criminal sanctions may well
cause speakers to remain silent rather than communicate even arguably
unlawful words, ideas, and images. As a practical matter, this increased
deterrent effect, coupled with the risk of discriminatory enforcement of
vague regulations, poses greater First Amendment concerns than those
implicated by [ ] civil regulation..."25

When the consequences are particularly severe, the risks associated with

uncertainty are especially dangerous to First Amendment freedoms. "Where First

Amendment freedoms are at stake we have repeatedly emphasized that precision of

drafting and clarity of purpose are essential. Erznoznik v Jacksonville, 422 US 205, 217

(1975).

25 Reno v. ACLU, 521 US 844, 871-872 (1997).

24
 In 1945 street photographer Alfred Eisenstaedt took a picture of a man and

woman in Times Square. The photo was sold to a national magazine, and has been

republished and retransmitted countless times since, but never with permission.

Eisenstaedt never asked permission, and in fact, the identities of the man and the

woman remain unknown.26

It is reasonable to ask whether the photograph is, or is meant to be, "arousing,"

and if it is, whether it constitutes a felony under §21.15(b)(1). If it is, or could be

26 In 1980, Life Magazine asked the man in the photograph to come forward. 11 men claimed to be the sailor, and
3 women claimed to be the nurse. "Who is the Kissing Sailor?" Life Magazine, Oct. 1980.

25
construed as, a violation, even uncertainty about the law's application demonstrates the

unconstitutionality of "Improper Photography." The severity of the sanctions the law

imposes "may well cause speakers to remain silent rather than communicate even

arguably unlawful words, ideas, and images." Reno, supra.

"[A] law imposing criminal penalties on protected speech is a stark example of

speech suppression." Ashcroft v. Free Speech. Where First Amendment freedoms are

concerned, legislative sloppiness that unnecessarily chills speech is unacceptable.

"Substantial Overbreadth"

In Broadrick v. Oklahoma, the Supreme Court drew a distinction between

"unprotected behavior," and "pure speech." Overbreadth analysis, the Court said, was

not appropriate where a law's affect on speech was incidental. An otherwise legitimate

law prohibiting "constitutionally unprotected conduct," should not be invalidated because

it is capable of "some unconstitutional applications."

"To put the matter another way," the Court wrote, "particularly where conduct and

not merely speech is involved, we believe that the overbreadth of a statute must not

only be real, but substantial as well, judged in relation to the statute's plainly legitimate

sweep." Broadrick, at 615.

"Improper Photography" is not a law that regulates "otherwise unprotected

behavior." It is, instead, a law that is aimed squarely at constitutionally protected

speech. Photography, broadcasting, and recording images are all protected conduct;

§21.15(b)(1) does not implicate speech incidentally, but directly, and specifically.

Moreover, "Improper Photography" is not, in Broadrick's words, an "otherwise

26
valid criminal law" that is "capable of some unconstitutional applications." It is an

unconstitutional content-based restriction on speech that may be capable of some

constitutional applications. It is similar, in that respect, to the law at stake in City of

Chicago v. Morales, where the Court said, "The city of Chicago may be able validly to

apply some other law to the defendants in light of their conduct. But the city of Chicago

may no more apply this law to the defendants, no matter how they behaved, than it

could apply an (imaginary) statute that said, "It is a crime to do wrong," even to the

worst of murderers." City of Chicago v. Morales, 527 U.S. 41 (1999).27

Unlike the law in Broadrick, §21.15(b)(1) does not have a "plainly legitimate

sweep" because it does not address any unprotected conduct. It prohibits only speech.

Some of that speech could be prohibited under a different law, for example, one that

was narrowly tailored to protect privacy. "Improper Photography," however, does not

punish invasions of privacy; instead it criminalizes every instance where someone either

transmits or records another person's image, without consent, and with the intent to

arouse. The the extent the law punishes some - but not all - invasions of privacy, it does

so almost incidentally. Because "Improper Photography" dispenses with any

requirement that anyone's privacy is compromised, the scope of its impermissible

applications is enormous.

For example, there are at least 7,460,000 images of Britney Spears available on

the World Wide Web. Many of these images (perhaps most of them) are intended to

arouse.

27 See also, Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939) ("If on its face the challenged provision is repugnant
to the due process clause, specification of details of the offense intended to be charged would not serve to
validate it").

27
 While most - but not all - of these images were recorded with Britney's consent,

few - if any - are transmitted with it. "Improper Photography," of course, prohibits not

just recording images without consent, but transmitting them as well.

Because IP prohibits all images of people that are recorded or transmitted

without consent, and with the intent to arouse, the overbreadth of the statute is, in fact,

greater than its legitimate applications.

The Supreme Court has invalidated a number of laws for overbreadth. In

Republican Party of Minnesota v. White, for example, the Court struck down a canon of

judicial conduct that prohibited candidates for judicial office from announcing their views

on certain issues. In Erznoznik v. City of Jacksonville, the Court struck a city ordinance

that required owners of drive-in theaters to shield films with nudity from public streets.

In United States v. Playboy Entertainment Group, a Federal law was struck that required

28
cable networks to either broadcast adult channels at night, or to fully scramble them. In

Colorado Republican Federal Campaign Committee v. Federal Election Commission,

the Court struck a law that limited the amount of money a political party could spend,

and in Johnson v. Texas, and Texas v. Johnson, both the Texas Court of Criminal

Appeals and the US Supreme Court, respectively, struck a law that prohibited flag

burning.

What these cases show is that where a statute is aimed squarely at restricting

protected speech, and particularly where the speech is restricted on the basis of its

content, the illegitimate sweep of the statute is, necessarily, "substantial." Where there

is no "constitutionally unprotected conduct" at stake, any unconstitutional application is

substantial in comparison.

Vasquez v. State

The constitutionality of §21.15(b)(1) was once before challenged, in Vasquez v.

State, ___ 3d ___, Tex.App.-Dallas 5th Dist. (2007).

The Vasquez Court concluded that §21.15(b)(1) was constitutional. "We

conclude appellant has not met his burden regarding his claim of unconstitutional

overbreadth of section §21.15(b)(1)."

The opinion, however, misstates the law as it applies to First Amendment

challenges.

The Court states, "When reviewing the constitutionality of a statute, we presume

the statute is valid and the legislature has not acted unreasonably or arbitrarily in

enacting the statute."

29
 This is not, however, the rule that applies when the government restricts speech.

"[T]he Constitution demands that content-based restrictions on speech be presumed

invalid, and that the Government bear the burden of showing their constitutionality."

Ashcroft v. American Civil Liberties Union, 542 U.S. 656 (2004).

The opinion states, "The burden rests on the party challenging the statute to

establish its unconstitutionality."

Again, this is not the rule that applies when the Government restricts speech.

"When the Government restricts speech, the Government bears the burden of proving

the constitutionality of its actions." United States v. Playboy Entertainment Group, 529

US 803, 816 (2000).

The opinion goes on to say, "A statute that prohibits intentional conduct is rarely

subject to a facial overbreadth challenge," citing Sullivan v. State, 986 SW2d 708, 712

(Tex.App.-Dallas 1999). Sullivan v. State, however, involved child molestation, not

speech.28 "Improper Photography" does not involve "intentional conduct" in the Sullivan

sense. It punishes speech, not conduct.29

The Vasquez opinion recites the State's argument that §21.15(b)(1) is narrowly

tailored because it reaches only recordings that are "made with the non-constitutionally

protected intent of gaining sexual arousal or gratification." The intent to gain sexual

arousal or gratification, however, is not an exception to the First Amendment. There are

a number of kinds of speech that are not protected - defamation, incitement, obscenity,

child pornography - but intent to gain sexual gratification is not one of them. Indeed, the

28 The Court may have meant to suggest that Improper Photography punishes conduct. Recording, transmitting,
and broadcasting images are all forms of speech, however.
29 No First Amendment challenge was made or argued in Sullivan. "[A]ppellant has not argued that the First
Amendment or other fundamental interest protected his conduct." Sullivan, at 712.

30
Supreme Court has said repeatedly that the mere fact that speech is erotic is not reason

to suppress it. "In evaluating the free speech rights of adults, we have made it perfectly

clear that sexual expression which is indecent but not obscene is protected by the First

Amendment." Reno v. American Civil Liberties Union, 521 US 844, 874 (1997).

The Vasquez Court goes on to find the examples presented by the appellant of

constitutionally protected conduct "insufficient to meet appellant's burden," because, at

best, they "merely reflect instances where it is possible to imagine some

unconstitutional applications." It is not necessary, however, to imagine unconstitutional

applications; an enormous number of real images are prohibited by plain language of

the statute. (See below, "Examples of Prohibited Speech Which Are Protected.")

"Further, and pivotal," the Court continues, "is that the statute requires both

specific "intent" and "lack of consent" by the complainant. In order for one to commit the

proscribed conduct under section 21.15(b)(1), one must have the specific intent to

arouse or gratify the sexual desire of any person. Tex. Pen. Code Ann. § 21.15(b)(1)(B).

A statute that prohibits intentional conduct is rarely subject to a facial overbreadth

challenge. Sullivan, 986 S.W.2d at 712. Further, the statute requires the lack of consent

by the complainant. See Tex. Pen. Code. Ann § 21.15(b)(1)(A). The plain language of

the statute narrows the proscribed conduct, and therefore, does not reach a substantial

amount of protected conduct."

` The plain language of §21.15(b)(1), however, does not, "narrow the proscribed

conduct." To say that it requires both "intent" and "lack of consent" is merely to restate

the elements of the offense. By this standard, any criminal law is "narrow" if it contains

more than one element.

31
 It bears repeating that Sullivan, which the Vasquez Court repeated quotes, is an

appeal from a conviction for "Indecency with a Child." While it may be true, as the

Sullivan court decided, that the intentional conduct of touching a child "with the intent to

arouse or gratify the sexual desire of any person" is not subject to a facial overbreadth

challenge, Sullivan's holding is wholly inapplicable to the issue of whether §21.15(b)(1)

is constitutional.

Vasquez is decided wrongly. It should not be relied upon as authority, persuasive

or otherwise.

Examples of Prohibited Speech Which Are Constitutionally Protected.

In determining whether a statute is overinclusive, the Supreme Court has

examined examples of speech a challenged law would unnecessarily, or

unconstitutionally, restrict.

In Simon & Schuster v. New York State Crime Victims Board, for example, the

Court considered books which had not been written, in coming to its conclusion that the

challenged law was unconstitutional, as well as books that had been.30

Following are examples of real images §21.15(b)(1) prohibits, despite the fact

they are innocuous, in terms of harming any state interest, and are constitutionally

protected. The examples are illustrative only; they're not meant to be exhaustive.31

30 "These two provisions combine to encompass a potentially large number of works... A list of prominent figures
whose autobiographies would be subject to the statute if written is not difficult to construct: The list could
include Sir Walter Raleigh, who was convicted of treason after a dubiously conducted 1603 trial; Jesse Jackson,
who was arrested in 1963 for trespass and resisting arrest after attempting to be served at a lunch counter in
North Carolina; and Bertrand Russell, who was jailed for seven days at the age of 89 for participating in a sit-
down protest against nuclear weapons..." Simon & Schuster, 122.
31 It would be impossible to make an exhaustive list of all "Improper Photography's" unconstitutional applications.
§21.15(b)(1) could be unconstitutionally applied to a limitless number of situations.

32
 Spring Break

Every year thousands of students come to Texas for Spring Break. Activities

include dance competitions, wet T-shirt contests, and bikini exhibitions, among other

things.

"Jessie Kowalski from San Antonio, Texas, won the women's dance contest held at Coca-Cola beach
behind the Radisson Resort on South Padre Island, Texas."

Many "Spring Breakers" bring their cameras, in order to record what they see,

and to show the pictures to their friends when they get back home. MTV broadcasts a

cable show from the island. News organizations report on what happens there. Taking

a picture of someone on South Padre, with the intent to arouse, and without consent, is

an example of the unconstitutional overbreadth of "Improper Photography."

33
34
 Sally Mann

Sally Mann is an artist whose works are included in the permanent collections of

the Metropolitan Museum of Art, the Whitney Museum of New York City, and the

Museum of Fine Arts in Boston. Among her most controversial works are a series of

photographs of her own children, which have been attacked for, among other things,

being pornographic. Broadcasting and transmitting the photographs are, nonetheless,

protected by the First Amendment, even though some people, apparently, believe the

images are intended to arouse.

35
 PETA

PETA is an non-profit organization dedicated to changing people's attitudes about

the treatment of animals. It is famous - or notorious - for its use of sexually provocative

imagery.

While PETA undoubtedly obtains permission from its models to publish their

images, other organizations and individuals routinely republish them without obtaining

permission first. While they're entitled to do that under copyright law, there is no "fair

use" provision in "Improper Photography." PETA's images are nevertheless protected

by the First Amendment, regardless of whether they're intended to arouse.

36
 Cheerleaders

While Cheerleaders routinely perform in front of hundreds, or thousands, or -

when broadcast on network television - millions of people, anyone who records or

transmits their images with the intent to arouse, and without their permission, commits a

felony, according to §21.15(b)(1).

37
38
 Street Photography

Street photographers record unscripted moments in the lives of ordinary people.

They work in public places such as streets, parks, malls, and beaches.

Alfred Eisenstaedt's 1945 photograph "VJ Day" is one example of street

photography. Whether a photograph is arousing, or intended to arouse, is often a

matter of opinion. But regardless of one's opinion, photography, as a form of speech, is

protected by the First Amendment.

39
 What seems arousing to one person, may seem innocuous to someone else.

In either case, content-based distinctions, such as the one in "Improper

Photography," are unconstitutional unless they are narrowly drawn to promote a

compelling government interest. "Improper Photography" is not narrowly drawn, and it

does not advance a compelling government interest.

40
 Marilyn Monroe

Norma Jean Baker, born in 1926 to a single mother, and raised in foster care,

changed her name to Marilyn Monroe, and became one of America's most successful

Hollywood celebrities.

Marilyn Monroe's classic pose,

1954.

There are at least two million images of Marilyn Monroe currently circulating on

the Internet, according to one popular Internet search engine company. Each image

can be uploaded, downloaded, or otherwise transmitted an unlimited number of times.

Many of Monroe's images are sexual, and are made and transmitted with the intent to

arouse. None of those transmissions are done with Marilyn Monroe's consent.

41
Marilyn Monroe, 1949. Hugh Hefner used this image to launch "Playboy" magazine in 1953.

Prohibiting transmissions of Ms. Monroe's image, without consent and with the

intent to arouse, is an example of §21.15(b)(1)'s unconstitutional overbreadth.

42
 Sports Illustrated

"Sports Illustrated" publishes a "Swimsuit Edition" approximately once a year.

The images are designed to appeal to the sexual desires of men. SI certainly has

permission from Anna Kournikova to publish her image, but the same cannot be said of

those who are not publishers or agents of "Sports Illustrated." If they transmit Anna

Kournikova's image, without her permission, they risk prosecution for a felony,

according to §21.15(b)(1).

43
 Paparazzi

Paparazzi are journalists who make a living photographing stars for magazines

like "Star" and "People." Sometimes the Paparazzi shoot stars looking the way they

want to look, sometimes not. Either way, so long as they're in public, they don't have to

ask permission, because taking pictures of people is a protected First Amendment

activity, even if there's an "intent to arouse."

Paris Hilton, 2007.

44
Public photos of celebrities, while tacky, are nevertheless protected.

45
 Lady Godiva

Lady Godiva was an 11th Century Countess whose husband is said to have

imposed a punishing tax on his people. According to legend, in protest, she rode

through the town of Coventry, naked.

While painting a portrait of Lady Godiva is not a violation of §21.15(b)(1) - it is not

a photograph, a video, or a recording - the same cannot be said of transmitting it:

"A person commits an offense if the person... transmits a visual image of

another... without the other person's consent... with intent to arouse..."

A portrait is a "visual image," so transmitting it without consent and with the intent

to arouse is a violation of §21.15(b)(1). It is also an example of the statute's

unconstitutional overbreadth.

46
Conclusion

"Improper Photography" is overbroad. It sweeps up a substantial amount of

constitutionally protected expressive activity. The interest it's intended to advance - if

that interest is privacy - is a compelling one, but the statute is not narrowly tailored. It

prohibits more speech than is necessary, and much of the speech it prohibits is

innocuous. In other words, the conduct it proscribes does not harm any legitimate state

interest. Statutes that a.) protect privacy more effectively, and b.) don't trample on the

First Amendment, are readily available.

Improper Photography is both over and under inclusive. It would, for example,

not penalize taking an "upskirt" photograph, if it was done for some reason other than

sexual arousal. But it would penalize taking a photo of a fully clothed person, if it was

done with the intent to arouse. It would operate differently depending on the gender

and sexual orientation of the person taking the picture. A straight man taking a picture

of a woman would be subject to arrest; a gay man, presumably, would not. It is

impossible to enforce in a predictable, objective way.

"Improper Photography" is vague. It forces law enforcement to make subjective,

ad hoc judgments about protected speech, and it forces photographers and others to

censor themselves unnecessarily, if they wish to avoid the risk associated with

prosecution for a felony sex crime. "Improper Photography" is therefore unconstitutional

on its face.

47