1. “Is Tex. Penal Code § 21.16(b) a content-based restriction on speech
that is subject to strict scrutiny?”
2. “May a court of appeals find a statute unconstitutional based on a
manner and means that was not charged?”
3. “Is Tex. Penal Code § 21.16(b) facially constitutional?”
Jones was charged with one violation of section 21.16(b) of the Texas Penal Code, commonly referred to as the “revenge porn” statute. As limited by the charging instrument, he was charged with disclosing visual material he obtained under circumstances in which the depicted person would have a reasonable expectation of privacy and revealing the identity of the depicted person through accompanying or subsequent information he provided. The trial court denied his pretrial application for writ of habeas corpus, which alleged the statute violates the First Amendment by failing strict scrutiny and overbreadth analysis.
The court of appeals reversed. It held that section 21.16(b) is a content-based restriction on speech because it “penalizes only a subset of disclosed images” and thus concluded that it must satisfy strict scrutiny, which is both the highest constitutional burden and one placed on the State to prove. The court held that section 21.16(b) failed strict scrutiny because it permitted conviction of a hypothetical defendant who had no reason to know the circumstances surrounding the visual material’s creation. In an abundance of caution, it also held that the statute prohibited a substantial amount of protected speech compared to its legitimate sweep.
The State argues that the speech at issue deserves intermediate scrutiny, at best. First, reference to the content of speech does not inevitably trigger strict scrutiny; the inherent value of the speech—including whether it is on a public or private matter—plays a role in choosing the appropriate standard. Second, the Court of Criminal Appeals in Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014), set out a framework for applying intermediate scrutiny to a photography statute by focusing on the secondary effects of lack of consent and violation of privacy; the Legislature followed this framework to the letter when it enacted Section 21.16(b).
The State also argues that the lower court’s focus on the potential for a “problematic” application to a hypothetical defendant means that it did not rule on the ultimate issue presented to it—whether the offense Jones was accused of committing is facially unconstitutional. Had it properly confined its analysis to the offense as limited by the charging instrument, it would have found that it satisfies even strict scrutiny and is not overbroad.