In 2015, at the behest of State Rep. Sylvia Garcia, D-Houston, the Texas Legislature enacted Texas Penal Code, Section 21.16(b)—more commonly known as the “revenge porn” statute. In short, § 21.16(b) creates four elements that constitute a violation of the statute:
- Without the effective consent of the depicted person, the [accused] person intentionally discloses visual material depicting another person’s intimate parts exposed or engaged in sexual conduct;
- The visual material was obtained by the [accused] person under circumstances to which the depicted person had a reasonable expectation that the visual material would remain private;
- The disclosure of the visual material causes harm to the depicted person; and
- The disclosure of the visual material reveals the identity of the depicted person in any manner.
This statute was inspired by many stories of women who told lawmakers that nude or otherwise intimate depictions of them were posted online by persons with whom they had previously been romantically or sexually involved. The women described that the sexually explicit material was posted in public forums intended both to embarrass them and cause them harm. This disclosure of private, sexually intimate material in public forums became known as “revenge porn.”
Revenge Porn Statute Challenged as Unconstitutional
Earlier this year Jordan Bartlett Jones was charged in Smith County with violating § 21.16(b) after he posted the nude photo of a woman online. Jones’s attorney filed a pretrial Application for a Writ of Habeas Corpus challenging the constitutionality of the revenge porn statute under the First Amendment to the United States Constitution. The trial court denied the writ application.
Jones sought review of the trial court’s ruling before the Twelfth Court of Appeals sitting in Tyler. The case was masterfully argued before the court by Jones’ lawyer, Mark Bennett. The appeals court on April 18, 2018 declared § 21.16(b) unconstitutional because the statute was facially overbroad, vague and posed the potential to violate the rights of third parties who might unwittingly share intimate depictions of someone. In reaching its decision, the court used the following hypothetical to supports its conclusion:
“Adam and Barbara are in a committed relationship. One evening, in their home, during a moment of passion, Adam asks Barbara if he can take a nude photograph of her. Barbara consents, but before Adam takes the picture, she tells him he must not show the photograph to anyone else. Adam promises that he will never show the picture to another living soul, and takes a photograph of Barbara in front of a plain, white background with her breasts exposed.
“A few months pass, and Adam and Barbara break up after Adam discovers that Barbara has had an affair. A few weeks later, Adam rediscovers the topless photo he took of Barbara. Feeling angry and betrayed, Adam emails the photo without comment to several of his friends, including Charlie. Charlie never had met Barbara and, therefore, does not recognize her. But he likes the photograph and forwards the email without comment to some of his friends, one of whom, unbeknownst to Charlie, is Barbara’s coworker, Donna. Donna recognizes Barbara and shows the picture to Barbara’s supervisor, who terminates Barbara’s employment.”
Strange Hypothetical Illustrates Court’s Point
It is a hypothetical that has been played out many times in real life situations. The appeals court explained the legal repercussions that could exist in a real life situation based on the facts of the hypothetical:
“In this scenario, Adam can be charged under Section 21.16(b), but so can Charlie and Donna. Charlie has a First Amendment right to share a photograph … Charlie had no reason to know that the photograph was created under circumstances under which Barbara had a reasonable expectation that the photograph would remain private. Charlie was not aware of Barbara’s conditions posed to Adam immediately prior to the photograph’s creation, nor did he receive the photograph with any commentary from Adam that would make him aware of this privacy expectation on Barbara’s part. In fact, there is nothing to suggest that Charlie could not reasonably have believed that Adam found this picture on a public website or had been given permission by the depicted person to share the image with others. Further still, Charlie did not intend to harm the depicted person. Lastly, Charlie did not and could not identify the depicted person because he did not know Barbara. Yet under the disjunctive language used in Section 21.16(b)(2), Charlie nonetheless is culpable despite his having no knowledge of the circumstances surrounding the photograph’s creation or the depicted person’s privacy expectation thereunder.”
In its concluding remarks, the appeals court shut down the Texas revenge porn statute by saying “it violates rights of too many third parties by restricting more speech than the Constitution permits. Accordingly, we hold that the Texas Penal Code, Section 21.16(b), to the extent it proscribes the disclosure of visual material, is unconstitutional on its face in violation of the Free Speech clause of the First Amendment.”
The State has announced its intention to seek discretionary review with the Texas Court of Criminal Appeals. What that court may do is anyone’s guess, but the decision by the Twelfth Court of Appeals is grounded in significant precedents from the Court of Criminal Appeals. Whatever the courts may decide, the Texas Legislature needs to go back to the drawing board if plans to maintain a revenge porn statute.