ACCEPTED
12-17-00346-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/29/2017 2:54 PM
Pam Estes
CLERK
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
11/29/2017 2:54:07 PM
In the Court of Appeals for the PAM ESTES
Clerk
Twelfth District Court of Appeals
No. 12-17-00346-CV
On Appeal from
County Court at Law Two
Ex Parte Smith County, Texas
Jordan Bartlett Jones
Trial Court
Cause No. 67295
Amended Brief for Appellant
Appellant requests oral argument.
Mark W. Bennett
TBN 00792970
Bennett & Bennett
917 Franklin Street
Fourth Floor
Houston, Texas 77002
Tel. 713.224.1747
Email MB@IVI3.com
Mishae M. Boren
TBN 24097504
216 W. Erwin St. Suite 300
Tyler, Texas 75702
Counsel for Appellant
November 29, 2017
Statement Regarding Oral Argument
The issue of the unconstitutionality of statutes such as section
21.16(b) that criminalize the nonconsensual publication of intimate
images—“revenge porn” statutes—is one of nationwide interest and
great importance. Appellant requests oral argument pursuant to Texas
Rule of Appellate Procedure 39.7.
ii
Names of All Parties
Mr. Jordan Bartlett Jones Appellant
Mark W. Bennett Trial and Appellate Counsel
TBN 00792970 for Appellant
Bennett & Bennett
917 Franklin Street
Fourth Floor
Houston, Texas 77002
Mishae M. Boren
TBN 24097405
Boren Law Office, P.C.
216 W. Erwin St. Suite 300
Tyler, Texas 75702
Kevin Hayes Trial and Appellate Counsel for
Michael J. West Appellee
100 North Broadway Avenue
4th Floor
Tyler, Texas 75702
Hon. Randall Rogers Trial Judge
iii
Table of Contents
Statement Regarding Oral Argument ........................ ii
Names of All Parties.............................................. iii
Table of Contents ................................................... 1
Table of Authorities ................................................ 1
Statement of the Case .............................................. 1
Procedural History ................................................. 1
Issues Presented .................................................... 2
Statement of Facts ................................................. 2
Summary of the Argument ....................................... 2
Argument .............................................................. 3
Point of Error One: Section 21.16(b) is facially
overbroad under the First Amendment to the
United States Constitution. ................................. 3
Strict Scrutiny is the appropriate standard of
review. ............................................................ 4
The statute restricts speech. .............................. 5
The statute restricts speech based on its
content........................................................... 6
The statute is presumed to be
unconstitutional. ............................................ 9
The statute restricts protected speech. ............... 9
The statute’s overbreadth is real and
substantial. .................................................... 11
The statute fails strict scrutiny. ....................... 13
1
Conclusion ..................................................... 16
Point of Error Two: If the statute is interpreted
narrowly not to be overbroad, such
interpretation will render it unconstitutionally
vague. ............................................................... 17
Prayer for Relief ................................................... 18
Certificate of Service ............................................ 19
Certificate of Compliance ...................................... 19
Appendix 1: Order denying habeas relief. ................... 20
Appendix 2: Texas Penal Code section 21.16 ............... 22
Appendix 3: Senate Research Center, Bill Analysis,
Tex. S.B. 1135, 84th Leg., R.S. (2015) ........................ 25
2
Table of Authorities
CASES
Ashcroft v. ACLU, 542 U.S. 656 (2004) ...........................................5
Baggett v. Bullitt, 377 U.S. 360 (1964) ........................................... 17
Brown v. Entm’t Merchants Ass’n, 564 U.S. 786 (2011) .................... 10
City of Cincinnati v. Discovery Network, Inc., 507 US 410 (1983) ........ 7
Clark v. State, 665 S.W.2d 476 (Tex. Crim. App. 1984) ......................5
Cohen v. California, 403 U.S. 15 (1971) .......................................... 10
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) .......................6
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) ................ 7, 10, 13
Ex Parte Reece, 517 S.W.3d 108 (Tex. Crim. App. 2017) ................... 16
Ex Parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) 6, 7, 9, 13
Grayned v. City of Rockford, 408 U.S. 104 (1972) ........................... 17
Hill v. Colorado, 530 U.S. 703 (2000) ..............................................8
NAACP v. Button, 371 U.S. 415 (1963) .......................................... 17
Reed v. Town of Gilbert, 476 U.S. ___, 135 S.Ct. 2218 (2015) ...........8
Reedy v. Webb, 113 S.W.3d 19 (Tex. App.—Tyler 2002, pet.
denied)...................................................................................... 11
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) ............ 17
1
Sable Communications of Cal. v. FCC, 492 U.S. 115 (1989) .............. 11
Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010) .................... 10
United States v. Alvarez, 567 U.S. 709 (2012) ............................. 5, 10
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489 (1982) ........................................................................ 17
Ward v. Rock Against Racism, 491 U.S. 781 (1989) ................... 7, 9, 17
STATUTES
Tex. Penal Code § 21.16(b) ...................................................... passim
OTHER AUTHORITIES
Senate Research Center, Bill Analysis, Tex. S.B. 1135, 84th Leg.,
R.S. (2015) ............................................................................... 14
2
In the Court of Appeals for the
Twelfth District Court of Appeals
No. 12-17-00346-CV
On Appeal from
County Court at Law Two
Ex Parte Smith County, Texas
Jordan Bartlett Jones
Trial Court
Cause No. 67295
Amended Brief for Appellant
To the Honorable Court of Appeals:
Statement of the Case
Jordan Bartlett Jones appeals the trial court’s denial of relief on the
merits on his Amended Application for Writ of Habeas Corpus (Clerk’s
Record (CR) 35).
❧
Procedural History
The State has charged Mr. Jones by Information with violating section
21.16(b) of the Texas Penal Code. Clerk’s Record (“CR”) 10. On
September 6, 2017, Mr. Jones filed an Application for Writ of Habeas
Corpus arguing that section 21.16(b) is unconstitutional on its face (CR
6). On October 23, 2017 the trial court denied relief (CR 19). Mr.
Jones appealed.
1
❧
Issues Presented
First Issue: Section 21.16(b) is facially overbroad under the First
Amendment to the United States Constitution.
Second Issue: Section 21.16(b) is vague under the First Amendment
to the United States Constitution.
❧
Statement of Facts
The operative facts are procedural, and are as stated in the Procedural
History. Because this is a facial challenge, the underlying facts are not
relevant.
❧
Summary of the Argument
Section 21.16(b) is a content-based restriction on speech, and so is
presumptively unconstitutional under the First Amendment. Its
overbreadth is real and substantial, and so it does not satisfy strict
scrutiny.
If section 21.16(b) could somehow be interpreted to avoid its real
and substantial overbreadth, such an interpretation would necessarily
render it unconstitutionally vague.
2
❧
Argument
Point of Error One: Section 21.16(b) is facially overbroad
under the First Amendment to the United States
Constitution.
Mr. Jones is charged with
without the effective consent of [the complainant], intentionally
disclos[ing] visual material, namely, a photograph, depicting the
complainant with her naked genitals exposed, and the visual
material was obtained by the defendant under circumstances in
which the complainant had a reasonable expectation of privacy that
the visual material would remain private, and the disclosure of the
visual material caused harm to the complainant, namely,
embarrassment to [the complainant], and the disclosure of the
visual material revealed the identity of the complainant, through
accompanying or subsequent information provided by the
defendant.
Clerk’s Record (“CR”) 12. This alleges a violation of Section 21.16(b)
of the Texas Penal Code:
A person commits an offense if:
(1) without the effective consent of the depicted person, the person
intentionally discloses visual material depicting another person with
the person's intimate parts exposed or engaged in sexual conduct;
(2) the visual material was obtained by the person or created under
circumstances in which the depicted person had a reasonable
expectation that the visual material would remain private;
3
(3) the disclosure of the visual material causes harm to the depicted
person; and
(4) the disclosure of the visual material reveals the identity of the
depicted person in any manner….
Tex. Penal Code § 21.16(b). Section 21.16(b) is a content-based
restriction on speech. Because it is a content-based restriction on
speech Section 21.16(b) is presumptively invalid under the First
Amendment. The State has the burden of showing that the statute
meets strict scrutiny. That is, the State must show that the statute is
both necessary and narrowly written to satisfy a compelling state
interest. The State cannot do so.
Strict Scrutiny is the appropriate standard of review.
As a general matter, government may not regulate speech “because of
its message, its ideas, its subject matter, or its content.” Police Dept. of
City of Chicago v. Mosley, 408 U.S. 92, 95 (1972).
The modern approach to First Amendment challenges to speech-
restricting penal statutes is a three-step inquiry:
1. Does the statute restrict speech (including expressive conduct) based
on its content? If the answer is “yes,” then the statute is
presumed to be unconstitutional, the State has the burden of
proving otherwise, and the court must ask…
2. Does the restricted speech fall entirely into a category of unprotected
speech? If the statute forbids only unprotected speech, the First
4
Amendment is satisfied. If, however, the statute captures
protected speech along with unprotected speech, then…
3. Does the statute satisfy strict scrutiny? That is, is it necessary and
narrowly written to satisfy a compelling state interest?
See United States v. Alvarez, 567 U.S. 709 (2012) (applying this
approach to the Stolen Valor Act). This—strict scrutiny, with a
presumption of invalidity (and a burden, concomitant with this
presumption, on the State, Ashcroft v. ACLU, 542 U.S. 656, 660
(2004)) is the appropriate standard of review.
❧
The statute restricts speech.
“A statute is considered impermissibly overbroad if, in addition to
prescribing activities which may constitutionally be forbidden, it
sweeps within its coverage speech or conduct which is protected by the
First Amendment.” Clark v. State, 665 S.W.2d 476, 482 (Tex. Crim.
App. 1984) (emphasis added).
The disclosure of visual materials—“showing images to
people”—is so obviously speech governed by the First Amendment
that no court appears to have ever seriously asked the question, rather
assuming that it is the case. Expressive conduct, also known as
“symbolic speech,” is protected like any other kind of speech.
5
Photography and visual recordings are inherently expressive conduct.
Ex Parte Thompson, 442 S.W.3d 325, 348 (Tex. Crim. App. 2014).
If making a photograph or visual recording is inherently
expressive, then disclosing (as alleged here) such expression is itself
expressive conduct. If this were not so, then picture books and
magazines would not be speech, paintings would not be speech, and
silent movies would not be speech.
Cases such as Erznoznik v. City of Jacksonville, 422 U.S. 205, 212
(1975), or the child-pornography cases, reveal that not only the
disclosure of visual materials, but also the disclosure of intimate visual
materials—nude pictures and movies—is speech.1
❧
The statute restricts speech based on its content.
There are two sorts of restriction on speech: content-based
restrictions, and content-neutral restrictions. Content-neutral
restrictions are also known as “time, place, and manner” restrictions.
They must, among other things, be “justified without reference to the
1
Some of it—child pornography and obscenity— is unprotected speech, but it is
speech nonetheless.
6
content of the regulated speech.” Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989).
Because Section 21.16(b) restricts inherently expressive conduct,
it is either content based or content neutral, and is subject to strict
scrutiny unless it is a content-neutral restriction. Ex Parte Thompson,
442 S.W.3d at 345.
Because the Statute Fails the Lo Test it is Content Based.
The Texas Court of Criminal Appeals has held:
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
content-based.
Ex Parte Lo, 424 S.W.3d 10, 15 n.12 (Tex. Crim. App. 2013); Ex Parte
Thompson, 442 S.W.3d at 345.
The United States Supreme Court has described this test as
“common sense.” City of Cincinnati v. Discovery Network, Inc., 507 US
410, 429 (1983).
This Court may simply apply the Lo test, recognize that it is
necessary to look at the content of the speech (the visual material) to
decide if the speaker violated the law, and find the statute content
based.
7
The statute satisfies other tests of content basedness as well.
❧
Because the statute discriminates on the basis of subject matter it is
content based.
A statute is content based if it favors some speech over other speech
based on its subject matter. Hill v. Colorado, 530 U.S. 703, 723 (2000).
Section 21.16(b) restricts the disclosure of “visual material
depicting another person with the person’s intimate parts exposed or
engaged in sexual conduct,” but not the disclosure of other things.
This is a subject-matter-based restriction.2 Tex. Penal Code § 21.16(b).
Section 21.16(b)’s restriction on speech is content based because
it favors some speech over other speech based on its subject matter
(“visual material depicting another person with the person’s intimate
parts exposed or engaged in sexual conduct”), Hill, 530 U.S. at 723, its
topic (sexually explicit images), Reed v. Town of Gilbert, 135 S.Ct. 2218,
2227 (2015), and its function (causing harm), Id.
2
If this were not a content-based restriction, or if images of intimate parts were
constitutionally unprotected, the State could write a statute forbidding the publication
of all pornography, and the statute would only have to satisfy intermediate scrutiny.
8
Section 21.16(b) is not “justified without reference to the
content,” Ward, 491 U.S. at 791, and so is not content neutral but
rather content based.
❧
The statute is presumed to be unconstitutional.
“Content-based regulations are presumptively invalid, and it is rare
that a regulation restricting speech because of its content will ever be
permissible.” Ex Parte Thompson, 442 S.W.3d at 348.
❧
The statute restricts protected speech.
If section 21.16(b) restricted only unprotected speech, it would be a
valid restriction. But the Supreme Court has recognized only nine
categories of speech unprotected by the First Amendment:
• Advocacy intended, and likely, to incite imminent lawless
action;
• Obscenity;
• Defamation;
• Speech integral to criminal conduct;
• So-called “fighting words”;
• Child pornography;
• Fraud;
• True threats; and
9
• Speech presenting some grave and imminent threat the
government has the power to prevent, “although,” says the
Supreme Court, “a restriction under the last category is most
difficult to sustain.”
Alvarez, 132 S.Ct. at 2544. All speech falling outside of these
categories is protected, and “new categories of unprotected speech
may not be added to the list by a legislature that concludes certain
speech is too harmful to be tolerated.” Brown v. Entm’t Merchants
Ass’n, 564 U.S. 786, 791 (2011).
Notably absent from this list of categories of speech unprotected
by the First Amendment is anything even remotely resembling:
• Violations of the subject’s privacy;3
• Images of intimate parts;4
• Images of sexual conduct;5
3
The State will inevitably cite Scott v. State, 322 S.W.3d 662 (Tex. Crim. App.
2010) and Cohen v. California, 403 U.S. 15 (1971) for the proposition that
“essentially intolerable” invasions of privacy are unprotected. Scott and Cohen are
off point, since both dealt with invasions of the privacy of the hearer of the speech,
not of its subject.
4
In Ex parte Lo, the Court of Criminal Appeals struck down section 33.021(b) of the
Texas Penal Code, which prohibited communicating online in a sexually explicit
manner with a minor. Ex parte Lo, 424 S.W.3d 10. The court initially pointed out that
such a statute would bar the protected content of modern movies or television
shows—visual material—then struck down the statute because of its overbreadth in
attempting to proscribe protected speech. Id.
10
• Speech causing harm;6 or
• Any combination of these things.
Images of another, even of their intimate areas, even if made when the
other person reasonably expected privacy and causing harm, fall into
no recognized category of unprotected speech, and so are protected.
Because disclosure of protected images is protected regardless of the
emotional harm done, section 21.16(b) is unconstitutional.
❧
The statute’s overbreadth is real and substantial.
Because section 21.16(b) is a content-based restriction on speech, it is
subject to strict scrutiny, and is presumptively invalid. The State has
the burden of overcoming this presumption by showing that the
overbreadth is not substantial, and cannot do so.
The State cannot rebut the presumption of unconstitutionality
because virtually everything forbidden by section 21.16(b) is protected
5
Sexual expression is generally private. Yet the court in Ex parte Lo followed the
Supreme Court’s principle that “Sexual expression which is indecent but not obscene
is protected by the First Amendment.” Sable Communications of Cal. v. FCC, 492
U.S. 115, 126 (1989).
6
Defamation is speech causing harm, but it is not actionable unless it is false. Reedy
v. Webb, 113 S.W.3d 19, 23 (Tex. App.—Tyler 2002, pet. denied). The speech
restricted by section 21.16(b) is true by definition.
11
by the First Amendment. Images and visual recordings do not become
unprotected because they depict intimate areas or are made in private
places. They do not become unprotected because they are made in
violation of someone’s expectation of privacy. Nor do they become
unprotected because they are intended to invade that privacy.
Some of the speech forbidden by section 21.16(b) might
incidentally fall into a category of unprotected speech — it might be
obscenity, or child pornography, or part of a true threat — but the bulk
of images and visual recordings will not.
All speech that does not fall into a recognized category of
historically unprotected speech is protected. The illegitimate sweep of
section 21.16(b) is the rule, rather than the exception: Unless the
images or recordings forbidden by the statute happen to be child
pornography or obscenity, they are protected.
Because no recognized category of unprotected speech covers the
speech forbidden by section 21.16(b), the statute’s overbreadth is real
and substantial, and the statute must fail.
❧
12
The statute fails strict scrutiny.
Because section 21.16(b) restricts speech based on its content, and
because Section 21.16(b) forbids some protected speech, this Court
must apply strict scrutiny, which section 21.16(b) fails. Satisfying strict
scrutiny is the State’s burden. Ex Parte Lo, 424 S.W.3d at 15. “[W]hen
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.” Ex Parte Thompson, 442 S.W.3d at 348.
The State cannot meet its burden of showing that Section
21.16(b) satisfies strict scrutiny: that it is necessary and narrowly
written to satisfy a compelling state interest.
❧
There is no compelling state interest.
The State has no compelling interest in forbidding constitutionally
protected speech, no matter how offensive the speech. We are allowed
to violate each other’s privacy, even if we embarrass each other, as
long as our speech is otherwise not constitutionally protected.
In recent years, there has been a disturbing Internet trend of
sexually explicit images disclosed without the consent of the
depicted person, resulting in immediate and in many cases,
irreversible harm to the victim. Victims’ images are often posted
13
with identifying information such as name, contact information, and
links to their social media profiles. The victims are frequently
threatened with sexual assault, harassed, stalked, fired from jobs,
and forced to change schools. Some victims have even committed
suicide.
In many instances, the images are disclosed by a former spouse or
partner who is seeking revenge. This practice has been commonly
referred to as “revenge pornography” by the media. To add insult to
injury, “revenge porn websites” are further preying on victims by
charging fees to remove the sexually explicit images from the
internet.
Senate Research Center, Bill Analysis, Tex. S.B. 1135, 84th Leg., R.S.
(2015).
It bears mentioning that the specific harm alleged in this case is
“embarrassment.” CR 10.
The disclosure of sexually explicit images (other than obscenity
or child pornography) is constitutionally protected speech. Nothing in
the Supreme Court’s First Amendment jurisprudence suggests that
the disclosure of sexually explicit images becomes unprotected
because it is without consent or because it causes “irreversible harm.”
There can be no compelling state interest in restricting constitutionally
protected speech.
❧
14
The statute has a narrow legitimate sweep.
The legitimate sweep of a content-based restriction comprises the
unprotected speech — that is, speech that falls into one of the few
narrowly drawn categories of historically unprotected speech — that is
forbidden by the statute.
Speech does not become unprotected simply because it might
cause harm, simply because it causes harm, nor even simply because it
causes horrific unintended results.
The legitimate sweep of section 21.16(b) — speech that is
unprotected and that violates the statute — is only incidentally
forbidden. This comprises a) obscenity; and b) child pornography.
That is, some of the speech forbidden by the statute may be obscene,
and some of it may be child pornography, but the statute does not
target such unprotected speech.
❧
The statute is not narrowly written.
Because the disclosure of sexually explicit images, even without
consent and even when it causes harm, is protected by the First
Amendment, section 21.16(b) is not narrowly written to restrict only
unprotected speech.
15
❧
The statute is not necessary.
Because the disclosure of sexually explicit images, even without
consent and even when it causes harm, is protected by the First
Amendment, section 21.16(b) is not necessary.
❧
Conclusion
Section 21.16(b) interdicts wide swaths of protected speech.
Disclosure of visual material involving intimate areas or sexual
conduct can harass, annoy, alarm, abuse, torment, and embarrass.7 But
the State’s desire to prevent emotional harm of all sorts8 cannot trump
the First Amendment. Section 21.16(b) is substantially overbroad.
❧
7
See Scott. v. State, 322 S.W.3d 662, 669 (Tex. Crim. App. 2010) (describing these
types of emotional distress as “harm”).
8
The State certainly cannot prevent emotional harm without running afoul of the First
Amendment — “Criticism can be annoying, embarrassing, or alarming, and it is often
intentionally so.” Ex Parte Reece, 517 S.W.3d 108, 111 (Tex. Crim. App. 2017)
(Keller, P.J., dissenting from refusal of discretionary review).
16
Point of Error Two: If the statute is interpreted narrowly
not to be overbroad, such interpretation will render it
unconstitutionally vague.
Due process requires that laws give people of ordinary intelligence fair
notice of what is prohibited. Grayned v. City of Rockford, 408 U.S. 104,
108 (1972). The lack of such notice in a law that regulates expression
“raises special First Amendment concerns because of its obvious
chilling effect on free speech.” Reno v. American Civil Liberties Union,
521 U.S. 844, 872 (1997). Vague laws force potential speakers to “steer
far wider of the unlawful zone … than if the boundaries of the
forbidden areas were clearly marked.” Baggett v. Bullitt, 377 U.S. 360,
372 (1964) (internal quotation marks and citations omitted).
While “perfect clarity and precise guidance have never been
required even of regulations that restrict expressive activity,” Ward v.
Rock Against Racism, 491 U.S. 781, 794 (1989), “government may
regulate in the area” of First Amendment freedoms “only with narrow
specificity.” NAACP v. Button, 371 U.S. 415, 433 (1963); see also
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 499 (1982).
17
Section 21.16(b) as written is plain and overbroad. If this Court
were to narrow its interpretation to save it from overbreadth, such an
interpretation would necessarily render it unconstitutionally vague.
❧
Prayer for Relief
For these reasons, Mr. Jones asks this Court to reverse the trial court’s
denial of habeas relief, hold that section 21.16(b) is unconstitutional,
and remand the case to the trial court with orders to dismiss the
Information.
Respectfully Submitted,
______________________
Mark W. Bennett
Counsel for Appellant
18
Certificate of Service
A copy of this Brief for Appellant has been served upon the State of
Texas by electronic filing.
Certificate of Compliance
According to Microsoft Word’s word count, this brief contains 2,808
words, not including the: caption, identity of parties and counsel,
statement regarding oral argument, table of contents, index of
authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature,
proof of service, certification, certificate of compliance, and appendix.
______________________
Mark W. Bennett
19
Appendix 1: Order denying habeas relief.
20
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Page 19
Appendix 2: Texas Penal Code section 21.16
Sec. 21.16. UNLAWFUL DISCLOSURE OR PROMOTION OF
INTIMATE VISUAL MATERIAL.
(a) In this section:
(1) "Intimate parts" means the naked genitals, pubic area, anus,
buttocks, or female nipple of a person.
(2) "Promote" means to procure, manufacture, issue, sell, give,
provide, lend, mail, deliver, transfer, transmit, publish, distribute,
circulate, disseminate, present, exhibit, or advertise or to offer or agree
to do any of the above.
(3) "Sexual conduct" means sexual contact, actual or simulated
sexual intercourse, deviate sexual intercourse, sexual bestiality,
masturbation, or sadomasochistic abuse.
(4) "Simulated" means the explicit depiction of sexual conduct
that creates the appearance of actual sexual conduct and during which
a person engaging in the conduct exhibits any uncovered portion of the
breasts, genitals, or buttocks.
(5) "Visual material" means:
(A) any film, photograph, videotape, negative, or slide or any
photographic reproduction that contains or incorporates in any
manner any film, photograph, videotape, negative, or slide; or
(B) any disk, diskette, or other physical medium that allows an
image to be displayed on a computer or other video screen and any
image transmitted to a computer or other video screen by telephone
line, cable, satellite transmission, or other method.
(b) A person commits an offense if:
(1) without the effective consent of the depicted person, the
person intentionally discloses visual material depicting another person
with the person's intimate parts exposed or engaged in sexual conduct;
22
(2) the visual material was obtained by the person or created
under circumstances in which the depicted person had a reasonable
expectation that the visual material would remain private;
(3) the disclosure of the visual material causes harm to the
depicted person; and
(4) the disclosure of the visual material reveals the identity of the
depicted person in any manner, including through:
(A) any accompanying or subsequent information or material
related to the visual material; or
(B) information or material provided by a third party in response
to the disclosure of the visual material.
(c) A person commits an offense if the person intentionally threatens
to disclose, without the consent of the depicted person, visual material
depicting another person with the person's intimate parts exposed or
engaged in sexual conduct and the actor makes the threat to obtain a
benefit:
(1) in return for not making the disclosure; or
(2) in connection with the threatened disclosure.
(d) A person commits an offense if, knowing the character and content
of the visual material, the person promotes visual material described
by Subsection (b) on an Internet website or other forum for publication
that is owned or operated by the person.
(e) It is not a defense to prosecution under this section that the
depicted person:
(1) created or consented to the creation of the visual material; or
(2) voluntarily transmitted the visual material to the actor.
(f ) It is an affirmative defense to prosecution under Subsection (b) or
(d) that:
(1) the disclosure or promotion is made in the course of:
23
(A) lawful and common practices of law enforcement or medical
treatment;
(B) reporting unlawful activity; or
(C) a legal proceeding, if the disclosure or promotion is
permitted or required by law;
(2) the disclosure or promotion consists of visual material
depicting in a public or commercial setting only a person's voluntary
exposure of:
(A) the person's intimate parts; or
(B) the person engaging in sexual conduct; or
(3) the actor is an interactive computer service, as defined by 47
U.S.C. Section 230, and the disclosure or promotion consists of visual
material provided by another person.
(g) An offense under this section is a Class A misdemeanor.
(h) If conduct that constitutes an offense under this section also
constitutes an offense under another law, the actor may be prosecuted
under this section, the other law, or both.
24
Appendix 3: Senate Research Center, Bill Analysis, Tex. S.B.
1135, 84th Leg., R.S. (2015)
BILL ANALYSIS
Senate Research Center
S.B. 1135
By: Garcia et al.
Criminal Justice
7/2/2015
Enrolled
AUTHOR'S / SPONSOR'S STATEMENT OF INTENT
In recent years, there has been a disturbing Internet trend of sexually
explicit images disclosed without the consent of the depicted person,
resulting in immediate and in many cases, irreversible harm to the
victim. Victims' images are often posted with identifying information
such as name, contact information, and links to their social media
profiles. The victims are frequently threatened with sexual assault,
harassed, stalked, fired from jobs, and forced to change schools. Some
victims have even committed suicide.
In many instances, the images are disclosed by a former spouse or
partner who is seeking revenge. This practice has been commonly
referred to as "revenge pornography" by the media. To add insult to
25
injury, "revenge porn websites" are further preying on victims by
charging fees to remove the sexually explicit images from the internet.
S.B. 1135 preserves relationship privacy by providing victims both civil
and criminal remedies when these intimate images are disclosed in a
nonconsensual manner and cause harm to the depicted person.
S.B. 1135 amends current law relating to the civil and criminal liability
for the unlawful disclosure or promotion of certain intimate visual
material and creates an offense.
RULEMAKING AUTHORITY
This bill does not expressly grant any additional rulemaking authority
to a state officer, institution, or agency.
SECTION BY SECTION ANALYSIS
SECTION 1. Requires that this Act be known as the Relationship
Privacy Act.
SECTION 2. Amends Title 4, Civil Practice and Remedies Code, by
adding Chapter 98B, as follows:
CHAPTER 98B. UNLAWFUL DISCLOSURE OR PROMOTION
OF INTIMATE VISUAL MATERIAL
Sec. 98B.001. DEFINITIONS. Defines “intimate parts,” “promote,”
“sexual conduct,” “visual material,” and “intimate visual material.”
26
Sec. 98B.002. LIABILITY FOR UNLAWFUL DISCLOSURE OR
PROMOTION OF CERTAIN INTIMATE VISUAL MATERIAL. (a)
Provides that a defendant is liable, as provided by this chapter, to a
person depicted in intimate visual material for damages arising from
the disclosure of material if:
(1) the defendant discloses the intimate visual material without the
effective consent of the depicted person;
(2) the intimate visual material was obtained by the defendant or
created under circumstances in which the depicted person had a
reasonable expectation that the material would remain private;
(3) the disclosure of the intimate visual material causes harm to the
depicted person; and
(4) the disclosure of the intimate visual material reveals the identity of
the depicted person in any manner, including through:
(A) any accompanying or subsequent information or material related to
the intimate visual material; or
(B) information or material provided by a third party in response to the
disclosure of the intimate visual material.
(b) Provides that a defendant is liable, as provided by this chapter, to a
person depicted in intimate visual material for damages arising from
the promotion of the material if, knowing the character and content of
27
the material, the defendant promotes intimate visual material
described by Subsection (a) on an Internet website or other forum for
publication that is owned or operated by the defendant.
Sec. 98B.003. DAMAGES. (a) Requires that a claimant who prevails
in a suit under this chapter be awarded:
(1) actual damages, including damages for mental anguish;
(2) court costs; and
(3) reasonable attorney's fees.
(b) Authorizes a claimant who prevails in a suit under this chapter to
recover exemplary damages, in addition to an award under Subsection
(a).
Sec. 98B.004. INJUNCTIVE RELIEF. Authorizes a court in which a
suit is brought under this chapter, on the motion of a party, to issue a
temporary restraining order or a temporary or permanent injunction to
restrain and prevent the disclosure or promotion of intimate visual
material with respect to the person depicted in the material.
(b) Authorizes a court that issues a temporary restraining order or a
temporary or permanent injunction under Subsection (a) to award to
the party who brought the motion damages in the amount of:
28
(1) $1,000 for each violation of the court's order or injunction, if the
disclosure or promotion of intimate visual material is wilful or
intentional; or
(2) $500 for each violation of the court's order or injunction, if the
disclosure or promotion of intimate visual material is not wilful or
intentional.
Sec. 98B.005. CAUSE OF ACTION CUMULATIVE. Provides that
the cause of action created by this chapter is cumulative of any other
remedy provided by common law or statute.
Sec. 98B.006. JURISDICTION. Provides that a court has personal
jurisdiction over a defendant in a suit brought under this chapter if:
(1) the defendant resides in this state;
(2) the claimant who is depicted in the intimate visual material resides
in this state;
(3) the intimate visual material is stored on a server that is located in
this state; or
(4) the intimate visual material is available for view in this state.
Sec. 98B.007. LIBERAL CONSTRUCTION AND APPLICATION;
CERTAIN CONDUCT EXCEPTED. (a) Requires this chapter to be
liberally construed and applied to promote its underlying purpose to
29
protect persons from, and provide adequate remedies to victims of, the
disclosure or promotion of intimate visual material.
(b) Provides that this chapter does not apply to a claim brought against
an interactive computer service, as defined by 47 U.S.C. Section 230,
for a disclosure or promotion consisting of intimate visual material
provided by another person.
SECTION 3. Amends Chapter 21, Penal Code, by adding Section
21.16, as follows:
Sec. 21.16. UNLAWFUL DISCLOSURE OR PROMOTION OF
INTIMATE VISUAL MATERIAL. (a) Defines “intimate parts,”
“promote,” “sexual conduct,” “simulated,” and “visual material.”
(b) Provides that a person commits an offense if:
(1) without the effective consent of the depicted person, the person
intentionally discloses visual material depicting another person with
the person’s intimate parts exposed or engaged in sexual conduct;
(2) the visual material was obtained by the person or created under
circumstances in which the depicted person had a reasonable
expectation that the visual material would remain private;
(3) the disclosure of the visual material causes harm to the depicted
person; and
30
(4) the disclosure of the visual material reveals the identity of the
depicted person in any manner, including through:
(A) any accompanying or subsequent information or material related to
the visual material; or
(B) information or material provided by a third party in response to the
disclosure of the visual material.
(c) Provides that a person commits an offense if the person
intentionally threatens to disclose, without the consent of the depicted
person, visual material depicting another person with the person’s
intimate parts exposed or engaged in sexual conduct and the actor
makes the threat to obtain a benefit:
(1) in return for not making the disclosure; or
(2) in connection with the threatened disclosure.
(d) Provides that a person commits an offense if, knowing the
character and content of the visual material, the person promotes
visual material described by Subsection (b) on an Internet website or
other forum for publication that is owned or operated by the person.
(e) Provides that it is not a defense to prosecution under this section
that the depicted person:
(1) created or consented to the creation of the visual material; or
31
(2) voluntarily transmitted the visual material to the actor.
(f ) Provides that it is an affirmative defense to prosecution under
Subsection (b) or (d) that:
(1) the disclosure or promotion is made in the course of:
(A) lawful and common practices of law enforcement or medical
treatment;
(B) reporting unlawful activity; or
(C) a legal proceeding, if the disclosure or promotion is permitted or
required by law;
(2) the disclosure or promotion consists of visual material depicting in
a public or commercial setting only a person’s voluntary exposure of
the person’s intimate parts or the person engaging in sexual conduct;
or
(3) the actor is an interactive computer service, as defined by 47
U.S.C. Section 230, and the disclosure or promotion consists of visual
material provided by another person.
(g) Provides that an offense under this section is a Class A
misdemeanor.
32
(h) Authorizes the actor to be prosecuted under this section, the other
law, or both, if conduct that constitutes an offense under this section
also constitutes an offense under another law.
SECTION 4. (a) Provides that Chapter 98B, Civil Practice and
Remedies Code, as added by this Act, applies only to a cause of action
that accrues on or after the effective date of this Act. Provides that a
cause of action that accrues before the effective date of this Act is
governed by the law in effect immediately before that date, and that
law is continued in effect for that purpose.
(b) Provides that Section 21.16, Penal Code, as added by this Act,
applies to visual material disclosed or promoted, or threatened to be
disclosed, on or after the effective date of this Act, regardless of
whether the visual material was created or transmitted to the actor
before, on, or after that date.
SECTION 5. Effective date: September 1, 2015.
33
Ex Parte: Jordan Jones
Combined Opinion