Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided.  I’m Alan Mygatt-Tauber.

This week we’re discussing Ex Parte Jones, a Texas Court of Appeals case striking down the state’s “revenge porn” law.

Revenge porn is the intentional posting of sexual images of another without their consent, usually following a break-up.  It has become a major problem in recent years and states have attempted to pass laws to deal with it.  Now, as the first prosecutions under those laws have come to pass, these laws are facing constitutional challenges.  Today’s case is one such challenge.

Jordan Bartlett Jones was charged with unlawful disclosure of intimate visual material in violation of Texas’s revenge pornography statute.  He alleged that the law was unconstitutional on its face because it violates the First Amendment to the Constitution.  He raised two issues on appeal.  The District Court denied his challenge.  The Texas Court of Appeals reversed.

Jones raised a facial challenge to the statute, therefore, the Court did not provide a detailed recitation of the facts.

Jones’s first attack is that the law is facially overbroad, in that it criminalizes conduct which is clearly protected by the First Amendment.  The law 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 4) the disclosure of the visual material reveals the identity of the depicted person in any manner.

The court would normally review the trial court’s decision to grant or deny an application for a writ of habeas corpus under an abuse of discretion standard, but when its ruling turns on the application of the law, the Court reviews de novo.  The same is true when reviewing the constitutionality of a criminal statute.

When reviewing the constitutionality of a statute, the Court ordinarily presumes the statue is valid and the legislature acted reasonably.  The burden rests on the party challenging the statute to show it is unconstitutional.  However, when the government seeks to restrict speech based on its content, this usual presumption is reversed.  Content-based regulations are presumptively invalid and the government must rebut that presumption.

Here, the Court found it was clear that the statute addressed a question of speech.  It has long been held that photographs and visual recordings are inherently expressive.  A person’s purposeful creation of such photos and recordings is entitled to the same protection as the photos and recordings themselves.

Having determined that the First Amendment is implicated, the Court then addressed the question of whether the statute was content-based or content-neutral.

As a general rule, laws that, by their terms, distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based.  If it is necessary to look at the content of the speech to decide if the speaker violated the law, the regulation is content-based.  That is clearly the case here.  Such laws are subject to strict scrutiny, and the State conceded at oral argument that strict scrutiny applied here.

The State tried defending the statute by arguing that the disclosure of material covered by the statute is contextually obscene, and thus fell outside the bounds of the First Amendment.  The Court disagreed.  Obscenity is a determination to be made initially by the trier of fact and the statute does not include language that would permit a trier of fact to make that determination.  Furthermore, the Court noted, if the material covered by the statute is obscene, the statute is wholly redundant in light of Texas’s obscenity statutes.

The Court then examined the statute to see if it could meet the strict scrutiny test.  In order to survive, the statute must address a compelling government interest and be narrowly drawn to serve that interest.  A statute is narrowly drawn if it uses the least restrictive means of achieving the government interest.

Here, the State argued that there is a compelling interest in protecting an individual from a substantial invasion of his or her privacy.  While the legislature clearly tried to apply this statute to instances where the depicted person had a reasonable expectation that that the material would remain private, this was not enough to save the statute.

The statute uses a disjunctive construction to define what material is covered: the visual material is obtained by the person OR created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private.  This leads to problems, as the Court illustrated by a hypothetical:

Two people, A and B, are in a committed relationship.  A asks B if he can take a nude photograph of her and she consents, but tells him he must not share it.  A promises not to share it, and takes a picture of B with her breasts exposed.

Later, A and B break up.  A emails the photo of B without comment to several friends, including C.  C has not met B and so does not recognize her.  He likes the photo and sends it to several friends without comment.  One of his friends, D, is a coworker of B’s and recognizes her.  D shows the picture to B’s boss and B is fired.

Under the scenario outlined by the Court, A is culpable under the statute – but so are C and D.  It is unquestioned that C had a First Amendment right to share the photograph.  And yet, he had no idea the photo was created under circumstances where B had a reasonable expectation it would remain private.  He did not know of the conditions B put on A and A did not provide any indication of those conditions, and B’s expectation of privacy.  C had no intent to harm B, but he would have violated the statute nonetheless.  It does not require that there be an intent to harm – only an intent to disclose.  While the statute could be narrowed by requiring the disclosing person have knowledge of the circumstances giving rise to the depicted person’s privacy expectation, the fact remains the statute did not use the least restrictive means and therefore could not survive strict scrutiny.

 Jones also argued that the statute was overbroad.  Although the Court did not think it necessary to address this argument, it did so out of an abundance of caution.  The overbreadth doctrine is “strong medicine” to be employed as a last resort.  The overbreadth must be real and substantial, judged in relation to the statute’s plainly legitimate sweep.  A statute must be found to prohibit a substantial amount of protected expression.  The danger of its unconstitutional application must also be realistic.

Today, the Court noted, a person can share a photograph or video with an untold number of people at the push of a button.  Once they have done so, it is highly questionable whether that act can ever be fully rescinded.  But assuming it is not otherwise protected, these persons are acting withint heir rights when they share visual material with others.

A criminal statute is likely to be found overbroad if the prohibition it creates is of alarming breadth.  The Court found this statute to meet this test.  It applies to any person who discloses material depicting another person’s intimate parts or a person engaged in sexual conduct, even where the disclosing person has no knowledge or reason to know the circumstances surrounding the material’s creation, under which the depicted person’s reasonable expectation of privacy arose.  Its application is not lessened by the fact that the disclosing person had no intent to harm the depicted person, or may have been unaware of the person’s identity.  Thus, the Court concluded, the statute creates a prohibition of alarming breadth that is real and substantial.  Therefore, the Court struck down the law.

This is a tough case, because I fully support revenge porn laws.  People who provide intimate photos and videos to their partners should not have to worry about their trust being violated and if someone does, there should be consequences for this egregious betrayal.  But the way Texas chose to wrote its law is highly problematic.  Because it lacks any intent to harm the person, or any requirement that the sender know that it is revenge porn, the statute clearly sweeps too broadly.  The Court’s hypothetical starkly illustrates the problem.  The fact that an innocent third party could be swept within the statute’s reach is concerning.  Some may question how innocent a person who shares a naked photo is, but many people post their own nudes online, with the intent they be viewed and shared, and other intimate photos can be mistaken for artistic as opposed to personal.  Finally, because someone could find photos that were initially posted as revenge porn on a site that makes it appear they are for sharing, they have no way of knowing that they are at risk of violating the statute.  This makes the statute constitutionally problematic.

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