Revenge pornography ban tramples free speech, law tossed out – where else but Texas!

Rules nixed by US state court over First Amendment fears

A Texas appeals court last week ruled that the US state's Relationship Privacy Act, which prohibits the disclosure or promotion of intimate images without the consent of those depicted, is unconstitutional.

Enacted in 2015, the Texas law was intended as a way to stop what's known as revenge porn, in which a person discloses intimate sexual images, online or otherwise, to cause harm and embarrassment to another person.

The law covered images to those taken under circumstances when the depicted person had a reasonable expectation that the material would remain private.

It's one of 38 state laws that have been enacted in the US to combat revenge porn, also referred to as nonconsensual distribution of pornographic images because the perpetrator's motivation – revenge or otherwise – wouldn't mitigate the act.

In its consideration of an appeal by defendant Jordan Bartlett Jones, accused in a civil complaint last year of revealing a explicit image of a woman without consent, the 12th Court of Appeals in Tyler, Texas, found the privacy law too broadly drawn.

"We have concluded that Section 21.16(b) [of the Relationship Privacy Act] is 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," the appeal court ruled, directing the trial court to dismiss the charges.

Expectation of privacy

The cited section of the law concerns the court because it makes 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.

The court also noted that the law does not consider whether the disclosing person had any intent to do harm.

The impact of the ruling is limited to the 17 Texas counties under the state's 12th Court of Appeals. The ruling may not stand however: Texas' Office of the State Prosecuting Attorney intends to have the decision reviewed.

In an email to The Register, Stacy Soule, State prosecuting attorney, said, "I will first seek rehearing in the 12th COA. If unsuccessful, I’ll file a petition for discretionary review in the Court of Criminal Appeals, which is Texas’ court of last resort for criminal cases."

Several revenge porn laws have run into constitutional problems. Arizona ended up revising its 2014 law following a court challenge the following year. Vermont's Supreme Court is reviewing Vermont's revenge porn law. And the Governor of the Rhode Island in 2016 vetoed that state's revenge porn bill over concerns about its constitutionality.

A federal law, the ENOUGH Act, which stands for Ending Nonconsensual Online User Graphic Harassment, was introduced late last year by U.S. Senators Kamala Harris (D-CA), Richard Burr (R-NC), and Amy Klobuchar (D-MN), in conjunction with Rep. Jackie Speier (D-CA). It awaits consideration by the Senate Judiciary Committee. ®

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