Texas court tosses out ‘improper photography’ law as a free speech violation

By Chuck Lindell
Austin American-Statesman
Originally published Sept. 17, 2014

The state’s highest criminal court on Wednesday tossed out a state law banning “improper photography” — photos or videos taken in a public place without consent and with the purpose of sexual gratification — as a violation of free-speech rights.

In an 8-1 ruling, the Texas Court of Criminal Appeals said photos, much like paintings and films, are “inherently expressive” and therefore protected by the First Amendment.

“Protecting someone who appears in public from being the object of sexual thoughts seems to be the sort of paternalistic interest in regulating the defendant’s mind that the First Amendment was designed to guard against,” said the opinion, written by Presiding Judge Sharon Keller.

“We also keep in mind the Supreme Court’s admonition that the forms of speech that are exempt from First Amendment protection are limited, and we should not be quick to recognize new categories of unprotected expression,” Keller wrote.

The case involved Ronald Thompson, charged with 26 counts of improper photography in 2011 after photographing children, most wearing swimsuits, at a San Antonio water park.

Wednesday’s ruling did not invalidate the section of the improper photography law that banned photos taken without consent in a bathroom or private dressing room.

Judge Larry Meyers dissented from the ruling without publishing an opinion