- II. OVERVIEW
II. OVERVIEW
TPC Section 21.19 took effect on September 1, 2019.7 As a result, those who transmit sexually explicit visual material without the expressed consent or request of the recipient could be charged with a Class C misdemeanor and a maximum fine of $500.8 Under the new law, anyone who knowingly
2 Throughout this Comment, H.B. 2789 and TPC Section 21.19 may be used interchangeably to refer to the former bill and now law.
3. See generally Ronald Steiner, Compelling State Interest, FIRST AMEND. ENCYCLOPEDIA, https://www.mtsu.edu/first-amendment/article/31/compelling-state-interest [https://perma.cc/C2 GS-L55N] (providing an overview of the different levels of governmental scrutiny).
4. Bill: HB 2789, supra note 1 (“AN ACT relating to the creation of the criminal offense of unlawful electronic transmission of sexually explicit visual material.”).
5. See TEX. PENAL CODE ANN. § 21.08 (providing the portion of the Code entitled “Indecent Exposure”).
6. See id. § 42.07(a) (“A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person: (1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene . . . .”).
7. See Bill: HB 2789, supra note 1 (providing information on H.B. 2789, including passage date, voting history, and authors).
8. House Research Org., Bill Analysis, Tex. H.B. 2789, 86th Leg., R.S. (2019), https://hro. house.texas.gov/pdf/ba86R/HB2789.PDF [https://perma.cc/9939-DV8U].
transmits visual material depicting “any person engaged in sexual conduct or with the person’s intimate parts exposed; or covered genitals of a male person that were in a discernibly turgid state” could be held criminally liable.9
On its face, TPC Section 21.19 looks like a legislative victory protecting people from digital sexual harassment and preserving the morals of our community, but there may be issues lingering in the shadows of this seemingly positive law.10 The passing of this bill fills a void in Texas law— holding those who send unwanted sexually explicit pictures online accountable—and the good intentions behind it led to the initial celebration of the bill’s passing.11 During Senate and House committee hearings, proponents explained that although indecent exposure is a crime, the same act committed over texting or a dating app leaves the recipient without recourse, even for repetitive offenses.12 Proponents want exhibitionists to unwilling participants to receive criminal punishment just as they would in person.13 Proponents also claimed this bill was needed now more than ever, as our culture of meeting others, making friends, dating, and how we live our day-to-day lives has changed drastically in recent years, moving
9. Id.
10. See generally Anabel Pasarow, Sending Unsolicited Nude Photos Isn’t Illegal. Bumble’s CEO Wants to Change That, REFINERY29: TECH (Aug. 27, 2019, 4:10 PM), https://www.refinery29.com/en-us/2019/08/241624/bumble-ceo-sexual-harassment-law [https://perma.cc/R953-5KVD] (describing the bill and how it does not intend to curtail free expression, but intends the “standards of acceptable behavior in the digital world to match the standards that apply in real life”).
11. See HB 2789, 86th Regular Session, LEGIS. REFERENCE LIBR. TEXAS, https://lrl.texas.gov/legis/billsearch/JournalsEtc.cfm?legSession=86-0&billtypeDetail=HB&billNumberDetail=2789&billSuffixDetail= [https://perma.cc/RXP2-KSJA] [hereinafter HB 2789, 86th Regular Session] (click the “Online Recordings” link for “House hearings and debates [which] are available for the 86th Regular Session,” scroll down and click the “86th Session” link, then click the “Criminal Jurisprudence” link in the March 25, 2019 row) (providing an online recording of the March 25, 2019 proceeding of the Criminal Jurisprudence Committee of the Texas House of Representatives where bill author Rep. Morgan Meyer, R-Dallas, said this bill would be “filling the void where Texas laws are currently silent”); see also Senate Committee on State Affairs (Part I), TEX. SENATE (May 9, 2019), https://tlcsenate.granicus.com/MediaPlayer.php?view_id=45&clip_id=14468 [https://perma.cc/ QKL9-9R3P] [hereinafter Senate Committee on State Affairs (Part I)] (recording the Senate Committee on State Affairs Part I, eliciting witness testimony from Senator Joan Huffman, among others).
12. HB 2789, 86th Regular Session, supra note 11.
13 *See id. *(providing a recording of the March 25, 2019 Criminal Jurisprudence Committee of the Texas House of Representatives proceeding where proponent Whitney Wolfe Herd proposed online exhibitionists should still face consequences as in-person offenders do); *see also Senate Committee on State Affairs (Part I), supra *note 11 (providing Part I of the Senate Committee on State Affairs recording, including witness testimony from Senator Joan Huffman, among others, explaining the desire to hold offenders accountable).
those connections online without much-needed protection following.14 Proponents in favor of the bill testified they themselves had been victims of unwanted sexually explicit photos and expressed concern about children possibly being exposed to the same kind of obscenity when they use their parents’ phones.15 It is also common for young children to have their own phones, and this bill gives parents peace of mind knowing there is extra protection for their children—even when supervised.16 Proponents also made it known they did not want to over-criminalize the offenders, proposing an accompanying Class C misdemeanor punishment as opposed to the more harsh Class B misdemeanor accompanying indecent exposure.17 If found guilty of breaking this new law, the individual shall be punished by a fine not to exceed $500,18 as opposed to the punishment for indecent exposure: a fine not exceeding $2,000, confinement in jail for a term not to exceed 180 days, or both.19
Although no one expressed disfavor in any of the public hearings on the bill,20 there were ten “nays” in the final House vote after reviewing statements of vote.21 Non-legislative opponents, including Texas attorneys, have mentioned enforcement of the law could be challenging due to a
14. Senate Committee on State Affairs (Part I), supra note 11 (providing the Senate Committee on State Affairs Part I recording, including witness testimony from Senator Joan Huffman and Whitney Herd speaking about the advances in technology).
15. Id. (providing the Senate Committee on State Affairs Part I recording, recording with witness testimony from proponent Brandy Davis speaking on her personal experience with receiving sexually explicit photos without asking for them.).
16. Kids Cell Phone Use Survey 2019—Truth About Kids & Phones., SELLCELL (July 15, 2019), https://www.sellcell.com/blog/kids-cell-phone-use-survey-2019/ [https://perma.cc/DG36-D9RS] (“40% of US parents let their kids have their own phone by the age of 10. 65% of pre-teenage kids have a phone by the time they reach 13.”).
17. HB 2789, 86th Regular Session, supra note 11 (providing the recording of the March 25, 2019 Criminal Jurisprudence Committee of the Texas House of Representatives proceeding where Texas Representative Joe Moody discussed the bill with Whitney Herd explaining punishment for offenders found guilty of violating H.B. 2789).
18. TEX. PENAL CODE ANN. § 12.23.
19. Id. § 12.22.
20. * See Senate Committee on State Affairs (Part I), supra* note 11 (providing the Senate Committee on State Affairs Part I recording of public hearing with no opponent on the bill speaking); see also HB 2789, 86th Regular Session, supra note 11 (providing the recording of the March 25, 2019 Criminal Jurisprudence Committee of the Texas House of Representatives public hearing with no opponent on the bill speaking).
21 H.J. of Tex., 86th Leg., R.S. 2291–92 (2019) (on third reading), https://journals.house.texas.gov/hjrnl/86r/pdf/86RDAY52FINAL.PDF#page=109 [https://perma.cc/GG75-L3 QW].
staggering volume of people affected and limited resources.22 Others have speculated there may be evidentiary issues in certain circumstances, such as when the sender denies sending the message.23 These are very real and common issues arising in cases in which a party wishes to introduce any kind of text or online message during trial—evidence often creating costly and painful delays for victims.24
For example, in order to hold an alleged sender liable for the sexually explicit picture sent to a plaintiff, the plaintiff must establish the alleged sender is indeed the offender.25 Although establishing originating cell phone ownership is insufficient, the requirements of authentication are not particularly demanding and depend on a case-by-case basis whether the texts contain identifying information.26 In certain circumstances, the sexually explicit material may be “distinctive” enough for the trier of fact to deem it authentic,27 but, in others, parties may need to go to greater lengths to authenticate.28 Even after confirming sexually explicit messages came from the accused individual’s account, some cases will still go unresolved due to the plaintiff’s inability to meet their evidentiary burden to show the
22. Troy Closson, A New Texas Law Criminalizes Sending Unwanted Nudes. Lawyers Say It Might Be Difficult to Enforce., TEX. TRIB. (Aug. 14, 2019, 12:00 AM), https://www.texastribune.org/ 2019/08/14/Texas-new-law-sending-unwanted-nudes-dating-apps-texts/ [https://perma.cc/E9ZGXRH7] (discussing TPC § 21.19, the punishment for breaking the law, the possible repercussions, and the possible difficulty of enforcing the law).
23. Id. (“J.T. Morris, an Austin-based attorney whose firm specializes in First Amendment rights, said difficulties may also arise if an accused sender claims he or she wasn’t the one who sent a lewd message.”).
24. See generally Pierre Grosdidier, Authentication of Cell Phone Text Messages, ST. B. OF TEX.: COMPUTER & TECH. SEC. 8, 8 (2016), http://sbot.org/wp-content/uploads/2016/01/Authen tication-of-Cell-Phone-Text-Messages.pdf [https://perma.cc/H2K5-T75H] (explaining the challenges of and solutions to authenticating text messages to use them as evidence in court).
25. See id. (“Authenticating cell phone text message authorship requires something more than establishing originating cell phone ownership.”).
26. See id. (explaining how simply knowing a message came from a particular phone number is not enough to prove the owner of the phone actually sent it); see also TEX. R.EVID. 901(b)(4) (providing examples of evidence satisfying the requirement of authenticating or identifying an item of evidence: *“Distinctive Characteristics and the Like”). *
27. DAVID A. SCHLUETER & JONATHAN D. SCHLUETER, TEXAS RULES OF EVIDENCE MANUAL 1017 (10th ed. 2015).
28. Sennett v. State, 406 S.W.3d 661, 669 (Tex. App.—Eastland 2013, no pet.) (elucidating the authentication process of emails between the victim and defendant, including introduction of (1) the testimony of the victim and victim’s mother regarding their familiarity with defendant’s email address, and (2) the contents of the responsive emails concerning matters only the victim and defendant would have known).
individual is the one who clicked “send.”29 Other opponents believe the bill is overly broad, suggesting even emailing a doctor an image for medical purposes could be considered criminal acts under the law, leading to unintended prosecutions.30 Many expect the bill to be challenged in court based on the concerns raised by opponents.31
A. *Substantial Issues with Texas Penal Code Section 21.19 *
While there should be protection for those who do not want to receive unrequested sexually explicit materials online, TPC Section 21.19 is not the proper way to ensure these protections. Although the bill was intended to fill a much-needed gap in Texas law, its extremely broad and vague language leaves it unconstitutional on its face. Undefined statutory language may also cause confusion. Several terms within the Code remain ambiguous, which could lead to misapplication of the law. First, although the bill proponents suggested the word “person” means a human being in real time,32 there is no ready indicator within the law excluding drawings, sculptures, paintings, and other images of people, which could cause confusion. Further, it bans visual materials simply including the exposed person’s intimate parts,33 which is unconstitutionally too broad for states to regulate under Miller v. California. 34 Finally, the law requires explicit visual materials only be sent at
29. An article by Rebekah Allen discussed an investigation by the University of Texas into a Texas senator who denied sending explicit, unwanted photos to a student although they came from his account—claiming a third party with his account information sent them. This was after members of the senator’s staff followed up with the student after he initially contacted her on LinkedIn regarding what they had spoken about. This was the same LinkedIn account later used to reference inappropriate text messages sent to the student from a phone number written on the senator’s legislative business card. See generally Rebekah Allen, ‘Send a Pic?’ UT Concludes Investigation, Releases Messages Texas Senator Allegedly Sent Student., DALL. MORNING NEWS (Dec. 18, 2018, 6:12 PM), https://www.dallas news.com/news/politics/2018/12/19/send-a-pic-ut-concludes-investigation-releases-messages-texas-senator-allegedly-sent-student/ [https://perma.cc/N9KA-M4KK].
30. Closson, supra note 22 (discussing H.B. 2789 and possible repercussions).
31.* See id.* (“David Anderson, a former UT Austin law professor who focuses on free speech, expects legal challenges to the law”); Voicemail Message: Office of Drew Springer, Texas House of Representatives (Nov. 2019) (on file with author) (recording a direct response to inquiry on why Representative Springer voted “nay” on Bill 2789: the office expects the law to be challenged in court).
32. Senate Committee on State Affairs (Part I), supra note 11 (providing the Senate Committee on State Affairs (Part I) recording with witness testimony stating they want to prevent unwanted sexual pictures from others).
33. TEX. PENAL CODE ANN. § 21.19.
34. Miller v. California, 413 U.S. 15, 21 (1973) (holding material may be subject to state regulation where the work, as a whole: “(a) . . . appeals to a prurient interest in sex; (b) . . . is patently offensive because it affronts contemporary community standards relating to the description or
the request of, or with the express consent of, the recipient,35 but does not give direction as to what constitutes “express consent.”
When legislation is proposed, there is ample consideration in order to ensure the writing encompasses the intent of the author and also to ensure those who analyze it—including parties in both the House and Senate— consider other potential issues and misinterpretations.36 Although the author of H.B. 2789 wrote with the intent to protect people from harassment,37 the bill would have benefitted from additional revision, as the lack thereof has left it facially unconstitutional.38
B. *Not All Speech Is Free Speech—The Historical Trend of Regulating the First Amendment *
1. Obscenity and Indecency Regulations Leading up to the 21st Century
The First Amendment of the United States Constitution protects several basic freedoms, including freedoms of religion, assembly, the press, speech, and the right to petition.39 Throughout history, the government has implicated essential regulations concerning these protections.40 While states are not allowed to create laws banning protected rights and freedoms under the Constitution, they are provided reserved powers allowing them to “legislate and regulate to protect the health, safety, and morals of citizens”
representation of sexual matters; and (c) is utterly without redeeming social [(literary, artistic, political, or scientific)] value”).
35. PENAL CODE § 21.19.
36. How a Bill Becomes a Law, TEX. HOUSE OF REPS., https://house.texas.gov/about-us/bill/ [https://perma.cc/NY86-N3BD] (explaining the process of how a bill becomes a state law in Texas).
37. See Senate Committee on State Affairs (Part I), supra note 11; see also HB 2789, 86th Regular Session, supra note 11.
38. David L. Hudson Jr., As-applied Challenges, FIRST AMEND. ENCYCLOPEDIA, https:// www.mtsu.edu/first-amendment/article/892/as-applied-challenges [https://perma.cc/K77E-3VZY] [hereinafter Hudson Jr., As-applied Challenges] (explaining when a governmental regulation is unconstitutional “on its face,” it means by “the very text of the policy”).
39. U.S. CONST. amend. I.
40. See R.A.V. v. City of St. Paul, 505 U.S. 377, 383–84 (1992) (holding certain “areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)—not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content”); see generally Beauharnais v. Illinois, 343 U.S. 250 (1952) (holding the First Amendment does not protect libelous speech); New York v. Ferber, 458 U.S. 747 (1982) (holding states are entitled to greater leeway in the regulation of pornographic depictions of children).
unprotected under the Constitution.41 When utilizing their reserved powers, states have the power to regulate activity happening both in person and online, but these laws must not overly restrict one’s protected rights, or they will be found unconstitutional.42
A widely known regulation of the freedom of speech is the common ban of public nudity,43 or “public indecency,” which some states use as their standard for illegal nudity, generally referring to acts “involving nudity or sexual activity in view of the public, often with the intent to shock, offend, or arouse.”44 States and localities differ on what constitutes illegal public nudity, looking at what parts of the body must be exposed and whether the alleged nudist had a particular intent.45 The Supreme Court has clearly established its view on public nudity, calling it “the evil the State seeks to prevent, whether or not it is combined with expressive activity”46 and holding it is not free expression protected by the First Amendment.47 The Supreme Court has affirmed the right of individual states to define and outlaw public nudity, holding the states have a duty to “protect[] societal order and morality.”48 This authorization gives states leeway in enacting public indecency and nudity laws.
For example, in California, in order to be convicted of indecent exposure, “the prosecution must prove an intent to sexually arouse, or sexually insult or offend someone.”49 Contrastingly, New York simply makes it a crime to not have clothes on one’s “private or intimate parts” in a public place.50 In Texas: “A person commits an offense if the person knowingly engages in
41. Federalism: A Division of Power, DALL. LEARNING CLOUD, https://dlc.dcccd.edu/txgov1- 2/federalism-a-division-of-power [https://perma.cc/JE6W-YUEX].
42. State Laws Held Unconstitutional, JUSTIA, https://law.justia.com/constitution/us/state-lawsheld-unconstitutional.html [https://perma.cc/5GQT-PX2D] (providing examples of state statutes found unconstitutional).
43. Public Nudity Law and Legal Definition, USLEGAL, https://definitions.uslegal.com/p/ public-nudity/ [https://perma.cc/9GQJ-NXR2] (defining public nudity as “the indecent exposure of nakedness in a public place”).
44. Public Indecency, JUSTIA (Apr. 2018), https://www.justia.com/criminal/offenses/sexcrimes/public-indecency/ [https://perma.cc/838H-3BN3].
45 Id. (describing the differences between public nudity, public indecency, illegal nudity, indecency exposure, and obscenity).
46. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 571 (1991).
47. Id.
48 Id. at 568; see also Public Indecency, supra note 44.
49. Indecent Exposure, FINDLAW, https://criminal.findlaw.com/criminal-charges/indecentexposure.html [https://perma.cc/J76B-PSVL] (providing samples of states’ indecent exposure laws).
50Id.
any of the following acts in a public place or, if not in a public place, the person is reckless about whether another is present who will be offended or alarmed by the person’s act.”51 Texas’s indecent exposure law, which criminalizes exposing oneself to others in person, combined with a lack of comparative protection for those who are exposed to the same type of indecency online, is what prompted Bumble’s52 CEO, Whitney Wolfe, to advocate for H.B. 2789.53 H.B. 2789 was codified as Section 21.19 of the Texas Penal Code in 2019, becoming the first law criminalizing the transmission of visual material depicting a person’s exposed intimate parts.54
Another widely known regulation of the freedom of speech is obscenity, which is also not protected by the First Amendment.55 The actual definition of obscenity varies from one community to another, and the Supreme Court established a three-part test for obscenity in Miller v. California. 56 In determining whether works are obscene, the trier of fact must consider three guiding principles, including whether the works: (1) “taken as a whole, appeal to the prurient interest in sex, . . . [(2)] portray sexual conduct in a patently offensive way, and . . . [(3)] do not have serious literary, artistic, political, or scientific value [taken as a whole].”57 The Miller test for obscenity is carefully based on local community standards, as “[i]t is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.”58 Therefore, each state determines what is obscene by their definition of “sexual conduct.”59
51. TEX. PENAL CODE ANN. § 21.08.
52 What is Bumble?, BUMBLE, https://bumble.com/en/help/what-is—bumble [https:// perma.cc/KN9G-7YLN] (explaining Bumble is a dating app requiring women to make the first move).
53. Pasarow,* supra* note 10 (“At Bumble, we believe that if it isn’t appropriate ‘IRL,’ it shouldn’t be tolerated on your devices.”).
54. PENAL CODE § 21.19.
55. Public Indecency, supra note 44.
56. See generally Miller v. California, 413 U.S. 15, 21–22 (1973) (holding the First Amendment does not protect obscenity and creating a three-part test for obscenity).
57 Id. at 24.
58. Id. at 32.
59. See PENAL CODE § 21.16 (“‘Sexual conduct’ means sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse.”); cf. NEV. REV. STAT. ANN. § 201.263 (West 2013) (“‘Sexual conduct’ means acts of masturbation, sexual penetration or physical contact with a person’s unclothed genitals or pubic area.”).
The Supreme Court has recognized “the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.”60 States, having this interest in protecting juveniles, have even gone so far as to prohibit the sale of nude magazines to minors—magazines likely not even considered obscene to adults.61 Ginsberg v. New York62 demonstrates government regulation can extend to settings where a person lacks the capacity to make a choice.63 This ultimately shows the flexibility of “obscenity,” allowing states to individually adjust the definition as applied to minors even when material may not be restricted to adults. Thus, “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.”64 Although there is not an exhaustive and easily accessible list of what constitutes obscenity, in Miller v. California, the Court concluded no one would be subject to prosecution for the sale or exposure of materials unless they contained patently offensive “‘hard core’ sexual conduct” set out by the regulating state law.65
It is important to distinguish obscene content from other potentially offensive expression—but which does not rise up to the level of obscenity—in order to properly analyze TPC Section 21.19.66 These nonobscene expressions provide more to society than senseless gestures—they contain serious literary, artistic, political or scientific value.67 Indecent content is an example. Indecent content is differentiated from obscene
60. Miller, 413 U.S. at 18–19 (footnote omitted).
61. Ginsberg v. State of New York, 390 U.S. 629, 637 (1968) (“[T]he concept of obscenity or of unprotected matter may vary according to the group to whom the questionable material is directed or from whom it is quarantined . . . . [The State can bar] the distribution to children of books recognized to be suitable for adults.”).
62. Ginsberg v. State of New York, 390 U.S. 629 (1968).
63 Id. at 636; see also People v. Kahan, 206 N.E.2d 333, 334 (1965) (Fuld, J., concurring) (“Parental control or guidance cannot always be provided and society’s transcendent interest in protecting the welfare of children justify reasonable regulation of the sale of material to them.”).
64. Prince v. Massachusetts, 321 U.S. 158, 170 (1944).
65. Miller, 413 U.S. at 27.
66. TEX. PENAL CODE ANN. § 21.19.
67 Obscene, Indecent and Profane Broadcasts, FCC, https://www.fcc.gov/consumers/guides/ obscene-indecent-and-profane-broadcasts [https://perma. cc/B5H6-49U8] [hereinafter Obscene, Indecent and Profane Broadcasts] (defining indecent content as content “portray[ing] sexual or excretory organs or activities in a way that [is offensive but] does not meet the three-prong test for obscenity”).
content by “the absence of a prurient appeal,”68 portraying sexual or excretory organs or activities not meeting the three-prong test for obscenity.69 “Nudity alone does not render material obscene under Miller’s standards.”70 As previously mentioned, there is an understanding public nudity can be outlawed by individual states,71 but a nude photo in a medical textbook does not appeal to prurient interests in sex, portray sexual conduct in a patently offensive way, nor does it lack scientific value.
It is essential to understand pictures, sculptures, or other forms of speech, including descriptive language,72 may be interpreted by some as obscene, but also contain artistic,73 literary,74 political, or scientific75 value and therefore be protected. This third prong of the Miller test76 must be determined “solely on an objective basis as opposed to reference . . . to contemporary community standards.”77 The first two prongs of the test are subjective and must be analyzed individually—applying the relevant state
68. First Amendment—Obscenity and Indecency, 69 J. CRIM. L. & CRIMINOLOGY 474, 480 (1978) (“The dissenters’ criticism of Pacifica demonstrates indecent speech is differentiated from obscene speech by the absence of a prurient appeal in the former and the presence of such an appeal in the latter.”); see also FCC v. Pacifica Found., 438 U.S. 726, 778 (1978) (Stewart, J., dissenting) (citation omitted) (“[T]he Court today agrees, that ‘indecent’ is a broader concept than ‘obscene’ . . . because language can be ‘indecent’ although it . . . lacks prurient appeal.”).
69. Ex Parte Thompson, 442 S.W.3d 325, 338 (Tex. Crim. App. 2014) (“Sexual expression which is indecent but not obscene is protected by the First Amendment, . . . .”) (quoting Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)).
70. Jenkins v. Georgia, 418 U.S. 153, 161 (1974).
71. Public Indecency, supra note 44.
72. Kaplan v. California, 413 U.S. 115, 121–22 (1973) (“As with pictures, films, paintings, drawings, and engravings, both oral utterance and the printed word have First Amendment protection until they collide with the long-settled position of this Court that obscenity is not protected by the Constitution.”).
73. Michelangelo’s David, ACCADEMIA, http://www.accademia.org/explore-museum/artworks/ michelangelos-david/ [https://perma.cc/HCH8-S9WF] (describing the fourteen foot tall “marble statue depicting the Biblical hero David, represented as a standing male nude”—which some could initially perceive as obscene).
74. The novel Ulysses contained a masturbation scene and a trial court banned the novel in the U.S. However, the ruling was overturned twelve years later allowing U.S. publication in 1934. See Tom Head, Top 10 “Obscene” Literary Classics, THOUGHTCO. (Mar. 11, 2019), https://www.thoughtco.com/ top-obscene-literary-classics-721234 [https://perma.cc/ZYA8-WUR9].
75. Rebecca Joines Schinsky, Six-Pack: Smart Books About the Science and Sociology of Sex, BOOKRIOT (Mar. 6, 2014), https://bookriot.com/2014/03/06/books-science-sociology-sex/ [https://perma.cc/S39F-KGDP] (listing books explaining sexual concepts, how American culture has defined sexual deviance and dysfunction, and containing research about the brain’s role in sex, love, and dating).
76. Miller v. California, 413 U.S. 15, 24 (1973).
77. Pope v. Illinois, 481 U.S. 497, 499 (1987).
laws and “contemporary community standards”78—but the third prong is the only one analyzed on a national standard. Obscenity must be construed on a case-by-case basis because two of the three prongs are subjective according to state and community standards.79 There have also been attempts to broaden the scope of the Miller test on a federal level.80 An example of this attempt was the Child Online Protection Act (COPA), which made it a federal crime to use the Internet to communicate commercial material considered “harmful to minors.”81 COPA was ultimately held unconstitutional because it suppressed a wide range of speech adults have a right to communicate.82 Despite these challenges and attempts to broaden its scope, the Miller test still stands as the primary standard for obscenity.83
2. The Growing Trend of Content-Based Regulations
A content-based law or regulation “discriminates against speech based on the substance of what it communicates” and is presumed unconstitutional.84 This is different than a content-neutral law, which applies to expression without regard to its substance, generally regulating the time, place, and manner of speech.85 Content-based restrictions of speech are subject to strict scrutiny,86 the highest form of judicial review, and can only pass if the legislature “passed the law to further a ‘compelling governmental interest,’ and . . . narrowly tailored the law to achieve that
78. Miller, 413 U.S. at 24.
79. Freedom of Expression, ACLU, https://www.aclu.org/other/freedom-expression [https:// perma.cc/SK9P-VDBW] (“But the fact is, the obscenity exception to the First Amendment is highly subjective . . . .”) (emphasis removed).
80. See generally Ashcroft v. Am. C.L. Union, 535 U.S. 564, 601 (2002) (holding Congress did not create an overbroad statute based on the use of “community standards” language in COPA alone; but remanding the case for future consideration of issues such as whether “the variation in community standards renders the Act substantially overbroad”).
81. See id. at 569.
82. Am. C.L. Union v. Mukasey, 534 F.3d 181, 207 (3d Cir. 2008).
83. David L. Hudson Jr., Miller Test, FIRST AMEND. ENCYCLOPEDIA, https://www.mtsu.edu/ first-amendment/article/1585/miller-test [https://perma.cc/TCY3-TBHL] [hereinafter Hudson Jr., Miller Test].
84. David L. Hudson Jr., Content Based, FIRST AMEND. ENCYCLOPEDIA, https://www.mtsu. edu/first-amendment/article/935/content-based [https://perma.cc/Q7LB-TDU2] [hereinafter Hudson Jr., Content Based].
84. Id.
86. Id.
interest.”87 This is regardless of the government’s “benign motive, contentneutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech.”88 Although content-based restrictions are presumed unconstitutional,89 the Supreme Court has provided examples that have survived strict scrutiny and are constitutional.90 Some examples of constitutional content-based restrictions include: “[I]ncitement, obscenity, defamation, speech integral to criminal conduct, so-called ‘fighting words,’ child pornography, fraud, true threats, and speech presenting some grave and imminent threat the Government has the power to prevent.”91 These types of restrictions are not protected due to their harmful content and effects.92
a. Protecting Minors
The government has a strong “interest in protecting the physical and psychological well-being of children.”93 Osborne v. Ohio illustrates such an interest, wherein the Supreme Court upheld a state law prohibiting any person from possessing or viewing child pornography, even when privately in their own home.94 The Court recognized the law was in place to help destroy the “market for the exploitative use of children by penalizing those who possess and view the offending materials . . . which permanently record the victim’s abuse and thus may haunt him for years to come.”95 The government also has a strong interest against allowing minors to view
87. Strict Scrutiny, LEGAL INFO. INST., https://www.law.cornell.edu/wex/strict_scrutiny [https://perma.cc/X4FX-7DHM].
88. Reed v. Town of Gilbert, 576 U.S. 155, 165 (2015).
89. United States v. Playboy Entm’t Grp., 529 U.S. 803, 817 (2000) (listing several instances the Court has ruled against the First Amendment protection of free speech).
90. See generally Burson v. Freeman, 504 U.S. 191 (1992) (“A long history, a substantial, consensus, and simple common sense show that some restricted zone around polling places is necessary to protect that fundamental right.”).
91. United States v. Alvarez, 567 U.S. 709 (2012).
92. Hudson Jr., Content Based, supra note 84.
93. Government Restraining of Content of Expression, JUSTIA, https://law.justia.com/ constitution/us/amendment-01/16-government-restraint-of-content-of-expression.html [https:// perma.cc/MMM6-3M3D] [hereinafter Government Restraining of Content of Expression] (providing indepth examples of government regulation of expression); see also New York v. Ferber, 458 U.S. 747 (1982) (creating greater leeway for states to regulate pornographic depictions of children).
94. Osborne v. Ohio, 495 U.S. 103, 125 (1990).
95. Id. at 103–04.
pornography.96 “One of the reasons given by legislators for passing statutes protecting children from viewing pornography is that adults use such material to lure children into engaging in sexual activity.”97 There is also a strong interest in protecting children from seeing and hearing not only obscene, but indecent material.98 This interest is apparent both in the way states prohibit public nudity or indecent exposure and in states’ authority to restrict the selling of obscene materials to minors.99 It is commonly known protecting minors from exposure to harmful visual material in the physical world is easier than doing so online.100 States have even gone so far as to regulate the availability of adult theaters that have no suggestive displays on the outside of the theater to only allow consenting adults to enter.101
The Supreme Court has held “there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby.”102 The Supreme Court, as it held in FCC v. Pacifica, 103 also allows regulation of radio broadcasting due to its “pervasive presence,”104 ability to “extend into the privacy of the home[,]” and how impossible it is to “completely . . . avoid those [broadcasts] that are patently offensive.”105 This ruling allows the FCC to regulate an indecent, but not obscene, radio broadcast, and the Court further explained it “never intended to place an
96. Artemus Ward, Child Pornography, FIRST AMEND. ENCYCLOPEDIA, https://www.mtsu. edu/first-amendment/article/993/child-pornography [https://perma.cc/Y7BT-DVJ2] (providing background as to why Congress wants to restrict minors’ access to pornography).
97. Id.
98. Government Restraining of Content of Expression, supra note 93 (“[N]on-obscene but indecent language and nudity may be curtailed [in broadcasted speech], with the time of day and other circumstances determining the extent of curtailment.”).
99. Ginsberg v. State of New York, 390 U.S. 629, 640 (1968) (citing People v. Kahan, 206 N.E.2d 311, 334 (N.Y. 1965) (Fuld, J. concurring)) (“[P]arental control or guidance cannot always be provided and society’s transcendent interest in protecting the welfare of children justify reasonable regulation of the sale of material to them.”).
100. David L. Hudson Jr., Harmful to Minors Laws, FIRST AMEND. ENCYCLOPEDIA, https://www.mtsu.edu/first-amendment/article/966/harmful-to-minors-laws [https://perma.cc/J2 VV-F2QF] [hereinafter Hudson Jr., Harmful to Minors Laws] (explaining what “‘harmful to minors’ laws” are—giving examples of both successful and non-successful ones).
101* See generally *Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57 (1973) (“We categorically disapprove the theory . . . obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only.”).
102. Id.
103. FCC v. Pacifica Found., 438 U.S. 726 (1978).
104. * Id.* at 727.
105. * Id.* at 727–28.
absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it.”106 Although “broadcasting obscene content is prohibited by [federal] law at all times of the day[,] [i]ndecent and profane content are [only] prohibited on broadcast TV and radio between 6 a.m. and 10 p.m., when there is a reasonable risk that children may be in the audience.”107 The desire to protect minors has been prevalent throughout the rulings regulating obscene speech, as well as speech not rising to the level of obscenity.108 Although the U.S. has also successfully taken steps to protect minors from inadvertently accessing harmful material online,109 blanket efforts to prevent the online transmission of material harmful to minors have failed as they are often considered too broad110 and restrictive of adults’ rights to access content not necessarily considered obscene.111 The Supreme Court reasoned the government may shelter minors from potentially harmful speech, but a statute doing so “is unacceptable if less restrictive alternatives would be . . . effective in achieving the legitimate purpose” of the statute as the “burden on adult speech” would otherwise be too great.112
States must tread lightly when passing laws to regulate content sharing and be fully aware of what they can and cannot restrict. States must know in what capacity and circumstances they may restrict in order for the restriction to be constitutional.
106. Id. at 733.
107. Obscene, Indecent and Profane Broadcasts, supra note 67. 108. Government Restraining of Content of Expression, supra note 93 (providing examples of government regulation of expression citing to protecting minors).
109. 18 U.S.C. § 2252B(a)–(b) (2006) (stating persons are subject to a fine, imprisonment, or both, who “knowingly uses a misleading domain name on the Internet with the intent to deceive a person into viewing material constituting obscenity . . . [or] knowingly uses a misleading domain name on the Internet with the intent to deceive a minor into viewing material that is harmful to minors on the Internet . . . .”).
110. See Am. C.L. Union v. Johnson, 194 F.3d 1149 (10th Cir. 1999) (holding a state statute “which criminalizes the dissemination by computer of material that is harmful to minors” violates the First Amendment); see also generally Reno v. Am. C.L. Union, 521 U.S. 844 (1997) (“Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree . . . the statute abridges ‘the freedom of speech’ protected by the First Amendment.”).
111. Hudson Jr., Harmful to Minors Laws, supra note 100 (“Many [harmful-to-minors laws] limit distribution of sexually explicit material to minors.”).
112. Reno, 521 U.S. at 874.
b. Banning Revenge Porn
With the rise of the Internet and social media, revenge porn has become a new and damaging phenomenon. Revenge porn has been defined as “sexually explicit images of a person posted online without that person’s consent[,] especially as a form of revenge or harassment.”113 These explicit photos are generally disseminated in “retaliation for a romantic rebuff.114 They are often “accompanied by the victim’s name, address, phone number, Facebook page, and other personal information. . . . They are seen on the Internet by prospective employers and customers. Victims have been subjected to harassment, stalking, and threats of sexual assault.”115 State laws prohibiting the distribution of revenge porn restrict speech on the basis of its content.116 Not only are the laws considered content-based restrictions, but they have also been interpreted as being viewpointdiscriminatory,117 which is defined as “singling out a particular opinion or perspective on that subject matter for treatment unlike that given to other viewpoints.”118
Revenge porn laws can be interpreted as being viewpoint-discriminatory because non-child pornography is legal to view, watch, and distribute (to adults),119 but the government wants to limit this when someone sends out these explicit images and videos with an ill-intent. The content itself is not illegal—if the person depicted in the video(s) and image(s) is of age—but the government wants to make its distribution illegal if it harbors ill-intent, which in turn singles out a particular perspective regarding the subject matter. Viewpoint discrimination is often implicated through governmental discretion.120 This type of discrimination is presumed unconstitutional.121
113 Revenge Porn, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/revenge%20porn [https://perma.cc/UBX7-BQXB]
114. John A. Humbach, The Constitution and Revenge Porn, 35 PACE L. REV. 215, 215 (2014).
115 Andrew Koppelman,* Revenge Pornography and First Amendment Exceptions*, 65 EMORY L.J. 661, 661 (2016).
116. Id. at 662.
117. Id.
118. Kevin Francis O’Neill, Viewpoint Discrimination, FIRST AMEND. ENCYCLOPEDIA, https://www.mtsu.edu/first-amendment/article/1028/viewpoint-discrimination [https://perma.cc/ SSW8-799C].
119. TEX. PENAL CODE ANN. § 43.24.
120. O’Neill, supra note 118.
121. Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 828 (1995) (“In the realm of private speech or expression, government regulation may not favor one speaker over another. Discrimination against speech because of its message is presumed to be unconstitutional.”) (citation omitted).
Nevertheless, in the U.S., forty-seven states and one territory have implemented revenge porn laws.122 The various states’ revenge porn laws are diverse in their punishments, ranging from misdemeanor to felony convictions.123 Although revenge porn has not been recognized as an exception to the ban on content-based restrictions,124 some states have written their laws in a manner narrowly tailored to serve a compelling interest, surviving strict scrutiny and thus rendering them constitutional.125 In 2018, the Vermont Supreme Court upheld its state’s revenge porn law against a First Amendment challenge by comparing the “state’s interest in preventing the unauthorized disclosure of intimate images with the state’s interest in other forms of content-based restrictions on speech, such as restrictions on the disclosure of medical information or social security numbers.”126
Other states have tailored their laws to meet this requirement after being previously found to be overbroad and unconstitutional.127 For example, in 2014, Texas passed its own revenge porn law, prohibiting anyone from “distributing images or video showing ‘a person’s intimate parts exposed’ or engaging in sexual contact without the person’s knowledge or consent”128 when the material was “[(1)] obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private; [(2)] the disclosure . . . causes harm to the depicted person; and . . . [(3)] reveals the identity of the depicted
122. *46 States + DC + One Territory Now Have Revenge Porn Laws, *CYBER C.R. INITIATIVE, https://www.cybercivilrights.org/revenge-porn-laws/ [https://perma.cc/E2KR-3UWW].
123 Michelle Mark, et al., Here’s a Map Showing Which US States Have Passed Laws Against Revenge Porn—and Those Where It’s Still Legal, BUS. INSIDER (Oct. 30, 2019), https://www.bus inessinsider.com/map-states-where-revenge-porn-banned-2019-10 [https://perma.cc/J4B7-9EM2] (providing a map of the United States displaying which states have revenge porn laws and what punishments accompany their respective violations).
124 Koppelman, supra note 115, at 662.
125. Nicole McLemore, “Revenge Porn” Law Survives Constitutional Challenge in Vermont, CYBER C.R. INITIATIVE (Oct. 19, 2018), https://www.cybercivilrights.org/revenge-porn-law-survivesconstitutional-challenge-vermont/ [https://perma.cc/766D-P656].
126. *Id. *
127. Stephen Young, Texas Fixes Its Revenge Porn Law, DALL. OBSERVER (May 20, 2019, 6:56 AM) https://www.dallasobserver.com/news/texas-passes-revenge-porn-fix-11668838 [https:// perma.cc/DM46-6RZ7] (discussing the issue with holding third parties liable in the first Texas revenge porn law, stating: “To break the new law as outlined in the bill, . . . the person posting the videos or photos online would have to be intentionally harming the person depicted in the photos”).
128. Id.
person in any manner.”129 This law initially made third parties liable for the “distribution of covered content even if the defendant had no knowledge of the circumstances under which the image was taken or the privacy expectations of the person depicted. 130 The law was struck down as overbroad131 and was subsequently amended by adding an “intent to harm a person” provision to make sure third parties were not negatively impacted.132 Overall, states seem to be successful in passing revenge porn laws by narrowly tailoring them to serve a compelling interest.
3. Where This Leaves Us
a. Gaps in Texas Law—the Need to Fill a Void in Online Sexual Advances
The Internet is a relatively new and revolutionary phenomenon that has allowed people to communicate easier than ever before—almost instantaneously. Following this new technology, new laws must be implemented to protect people from an array of wrongdoing. Many of these laws punishing online offenders mimic existing laws protecting those in the “real world,” or provide unity by punishing acts done in person and online indiscriminately.133 In Texas, there are harassment, revenge porn, cyberbullying, and other laws in place to combat online crimes. None of these laws are as strict, per se, as TPC Section 21.19, which makes it a crime—even on the first occasion—to knowingly transmit visual material depicting a person’s exposed intimate parts if the receiving individual did not expressly consent to or request the media.134 The Texas harassment
129. Elizabeth Nolan Brown,* Law Prohibiting ‘Revenge Porn’ Violates First Amendment, Says Texas Appeals Court*, REASON (Apr. 23, 2018, 2:20 PM), https://reason.com/2018/04/23/texas-revengeporn/ [https://perma.cc/RH3U-5AN2].
130. Thomas Claburn, Revenge Pornography Ban Tramples Free Speech, Law Tossed Out—Where Else but Texas!, REGISTER (Apr. 24, 2018, 12:41 AM), https://www.theregister.co.uk/2018/04/24/texas_first_amendment_revenge_x_rated/ [https://perma.cc/CH24-54C4].
131. Ex parte Jones, No. 12-17-00346-CR, 2018 WL 2228888, at 8 (Tex. App.—Tyler May 16, 2018, pet. granted) (showing defendant indicted under Texas’s first revenge porn law in 2017 had the charge dropped by the Twelfth Court of Appeals, as the law was ruled an “invalid content-based restriction and overbroad in the sense that it violates rights of too many third parties by restricting more speech than the Constitution permits”).
132. Young, supra note 127.
133. FLA. STAT. ANN. § 784.048 (West 2019) (“A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree . . . .”).
134. TEX. PENAL CODE ANN. § 21.19.
law is somewhat similar, punishing someone who intends to harass, annoy, alarm, abuse, torment, or embarrass another by initiating “communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene.”135
It seems both laws share, in part, the same legislative intent—to protect those who did not consent to receiving inappropriate materials—but each has different intent requirements.136 Texas Penal Code Section 21.19 also seems to be written with the intent to protect those who wish to avoid this type of material in a purely social or dating atmosphere. Contrastingly, the harassment law is broader, as the criminalizing of intentionally transmitting obscene material is only one part of the law.137 Texas Penal Code Section 21.19 takes a narrower approach, clarifying what is prohibited,138 and becoming Texas’s only law solely focused on preventing online sexual advances. This type of law is essential in a society where it is so easy to commit indecent exposure online—anonymously, even.139 Texas Penal Code Section 21.19 serves as a necessary deterrent to those who feel entitled to expose themselves through electronic means without being asked. An effective law will hopefully reduce these incidences in the long run.
Table of Contents
- I. INTRODUCTION
- II. OVERVIEW
- III. TEXAS PENAL CODE SECTION 21.19 WILL BE DECLARED UNCONSTITUTIONAL
- IV. UNDERLYING ISSUES
- V. TEXAS PENAL CODE SECTION 21.19 FILLS THE GAP FOR DIGITAL SEXUAL HARASSMENT
- VI. CONCLUSION