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Texas Revenge Porn Law - Texas Appeals Court, unlawful

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Posted on April 25 2018

 

Texas Revenge Porn Law

Common sense dictates, Revenge Porn’s intent is to inflict harm and humiliation. As such more than 18 States in our “perfect” Union have codified “Revenge Porn” as unlawful. Yet somehow the Twelfth Circuit Court of Appeals recently ruled Texas’ Revenge Porn law, is unconstitutional. Let me reiterate that point, a Texas State Appeals Court, recently ruled the Revenge Porn law, which prohibits the unauthorized release is “unconstitutional” and the person who post the Revenge Porn. Is protected by the US Constitution’s First Amendment...

 

SB 1135, Sponsored By: Garcia, Huffman, Zaffirini

SB 1135 was signed in to law by Texas Governor Abbot in June 2015, on September 1, 2015 the new law went in to effect. Until this bill was codified, the police in Texas could not charge the person who uploaded “unauthorized pictures and/or video of a 

This law made it unlawful to disseminate material depicting:

  • "intimate parts" of the victims.
  • "Intimate parts" include "naked genitals, pubic area, anus, buttocks, or female nipple of a person."
  • Visual material includes:
    • "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."

 

The new law prescribes the following penalties and classified violations of this statute as a “Class A criminal misdemeanor”, you can read the full text of the law, here
  • a civil $1000 fine or an injunction for intentional exposure.
  • a $500 fine or an injunction for unintentional exposure.

 

 

 

As this 2014 Good Morning America Segment explains the Group of Texas Women who filed a lawsuit and then lobbied Texas Legislators to enact Revenge Porn Laws to protect the victims...

 

2016 Criminal Case NO. 12-17-00346-CR

COURT OF APPEALS TWELFTH COURT

OF APPEALS DISTRICT TYLER, TEXAS

 

The appeals court expressed “concern” with the act's criminal component. In what I view as  nonsensical circular argument the Appeals Court opined:

 

Relationship Privacy Act includes an addition to the Texas Penal Code.

  • Section 21.16(b) that makes third parties culpable. - for those who were not involved in the creation of the “original content”. Would not have known that such content was private, yet would be “held criminally liable for disseminating the content without intent to harm the victim.”

 

 

The Twelfth Circuit panel went on to opine:

  • “We review the constitutionality of a criminal statute de novo*”
  • “When a statute is attacked on constitutional grounds, we ordinarily presume the statute is valid and that the legislature has not acted unreasonably or arbitrarily” (emphasis added)
  • ‘The burden rests upon the individual who challenges the statute to establish its unconstitutionality.“
  • “.when the government seeks to restrict speech based on its content, the usual presumption of constitutionality afforded to legislative enactments is reversed...”

 

* denovo*, the literal translation means “a new, for the first time”.

 

  • Texas Court of Criminal Appeals has concluded that photographs and visual recordings are inherently expressive and that there is no need to conduct a case-specific inquiry into whether these forms of expression convey a particularized message.  

 

  • The court further concluded that a person’s purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves. 

 

Therefore, we conclude that Section 21.16(b)(1) discriminates on the basis of content...

 

 

Pages 8-9 Ddiscussion regarding Overbreadth: 

  • visual material is not otherwise protected, these persons are acting within their rights when they share visual material with others.
  • A statute likely is to be found overbroad if the criminal prohibition it creates is of “alarming breadth.” See
  • Such is the case with the current statute.
    • Section 21.16 is extremely broad, applying to any person who discloses visual material depicting another person’s intimate parts or a person engaged in sexual conduct, but 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. Furthermore, its application is not attenuated by the fact that the disclosing person had no intent to harm the depicted person or may have been unaware of the depicted person’s identity. 
  • Accordingly, we conclude that the criminal prohibition Section 21.16(b) creates is of “alarming breadth” that is “real” and “substantial.”

 

Conclusion:

“Having sustained Jones’s first issue, we reverse the trial court’s order denying Jones’s
Application for Writ of Habeas Corpus and remand the matter to the trial court with instructions
that it dismiss the information.”

 

So apparently the Twelfth Circuit (state court) of Texas pretty much told the world:

State of Texas, it’s totally okay to post Revenge Porn of your ex because the “first Amendment” free speech y’all...oh and did I mention this is a Published Opinion too? 

-disgusted Spicy Out

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