Summary

Texas House Bills 101 and 603 would make it a crime to disseminate a photo of another person either nude or engaging in sexual conduct if:

  • one knows or should have known that the person depicted did not consent to its dissemination.

Status

The Texas legislature passed a different non-consent photo bill, S.B. 1135.

Analysis

»  The bills do not fall into one of the categorical exceptions to the First Amendment.

One of the historic exceptions to the First Amendment is for obscenity, which does include some nude and sexual images, but this legislation goes far beyond the definition of such material. Obscenity is limited to speech with sexual content that meets all three prongs of the Miller test.

There is no exception for speech that offends or embarrasses another person. In fact, the Supreme Court struck down recent attempts to create a new category for speech that someone may find offensive or upsetting.

»  They likely fail strict scrutiny analysis.

Because the legislation is a content-based restriction that does not fall into one of the exceptions, it must satisfy the strict scrutiny test, which requires the government to:

  1. Articulate a legitimate and compelling state interest;
  2. Prove that the restriction actually serves that interest and is “necessary” to do so;
  3. Show that the restriction is narrowly tailored to achieve that interest.

It is unlikely that the legislation meets any part of this test.

History – H.B. 101

  • The bill was pre-filed [2] on November 10, 2014. It was referred to the House Committee on Criminal Jurisprudence.
  • On March 10, 2015, Media Coalition submitted a legal memo [1] explaining the constitutional issues with the bill.
  • The House Committee on Criminal Jurisprudence held a hearing on the bill on March 12, 2015. The Committee held the bill from consideration.

History – H.B. 603

  • The bill was introduced [3] on January 6, 2015. It was referred to the House Committee on Criminal Jurisprudence.
  • On March 10, 2015, Media Coalition submitted a legal memo [1] explaining the constitutional issues with the bill.
  • The House Committee on Criminal Jurisprudence held a hearing on the bill on March 12, 2015. The Committee held the bill from consideration.
  • On April 16, 2015, the House Committee on Criminal Jurisprudence reconsidered the bill. It recommended the bill be passed.
  • The House amended [4] the bill to include a requirement that the dissemination be done with an intent to “harass, abuse or torment” the person depicted. The House passed the bill on May 14, 2015 and sent it to the Senate for consideration. It was referred to the Senate Committee on Criminal Justice.
  • On May 24, 2015, the Senate Committee on Criminal Justice amended [5] the bill and recommended it be passed.
  • The Senate passed the bill as amended on May 27, 2015 and sent it back to the House with the amendments.
  • The House voted not to concur with the Senate amendments. Both the House and the Senate appoint members to a conference committee on May 30, 2015.
  • The Texas legislature passed a different non-consent photo bill, S.B. 1135.
Last updated: Oct 18, 2019