Ex Parte Jordan Bartlett Jones

Summary

On December 7, 2018, Media Coalition Foundation filed an amicus brief in an appeal of an intermediate court ruling, urging the Texas Court of Criminal Appeals (the state’s highest court for criminal matters) that a Texas law that bars the distribution of certain images without the consent of the person depicted in the photo violates the First Amendment.

The Texas Court of Appeals for the 12th District held that the law was unconstitutional because a person could be prosecuted without any knowledge that the person in the image did not consent to its publication.

The brief was signed by the American Booksellers Association, the Association of Alternative Newsmedia, the Association of American Publishers, Freedom to Read Foundation, Media Coalition Foundation and the National Press Photographers Association.

The amicus brief

The amicus brief argues that the law is unconstitutionally overbroad and should be struck down. It criminalizes speech that is not intended to harm the person depicted in the image; it does not provide a sufficient knowledge standard for whether or not the person consented to the publication; and it provides no protection for newsworthy, artistic, educational or historic images. This means the law could apply to the publication of images like the “selfies” Anthony Weiner sent of himself to women he met online or historic images that are impossible to determine if a person consented to their publication.

The amicus brief also responds to the state’s alarming and dangerous arguments to the Texas Court of Criminal Appeals:

• That the level of judicial review of law regulating speech depends on the value of the speech, and that strict scrutiny review is reserved only for speech about matters of public concern; and
• That the state argues that speech on private matters can be restricted as a time, place and manner restriction under the secondary effects doctrine.

The brief explains that the state is asking the court to ignore well-settled precedent from both the Supreme Court and this court and to rewrite well-established First Amendment doctrine. It also argues that should the Texas high court adopt the state’s arguments, there would be a grave impact on First Amendment protections and would threaten the free speech rights of many content producers and distributors.

Most recent actions

On October 29, 2019, the amici filed a letter on additional authority in the case. The Illinois Supreme Court’s opinion in People v. Austin, issued on October 18, 2019, was submitted to the court as additional authority on the case. However, the letter explains that the opinion issued in the Illinois case “misreads and rewrites the relevant, controlling First Amendment precedents of the United States Supreme Court.”

On April 5, 2019, the amici filed a supplemental brief. The brief addressed an opinion by another Texas intermediate court that upheld the law, which was issued after the initial amicus brief was filed. It also addressed issues raised in the amicus brief by the Texas Attorney General.

History

On April 18, 2018, the intermediate court revised the trial court decision and found that the law “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 state appealed to the Texas Criminal Court of Appeals, the state’s highest court. It argues that the law should be reviewed under “intermediate scrutiny” rather than “strict scrutiny” because “it does not regulate speech on matters of public concern.” The state also argues that even if the law does address matters of public concern, the regulation is “incidental to the prevention of harm to someone other than the viewer.”

On September 6, 2017, Jordan Jones filed a facial challenge to the statute, arguing it violates the First Amendment. A month later, the trial court denied his challenge.

Jones appealed to the Texas Court of Appeals for the 12th District.

In 2015, Governor Greg Abbott signed the bill into law and it took effect on September 1, 2015. Media Coalition submitted a memo to the governor, asking him to veto the bill because it violates the First Amendment in that it “makes no distinction between a hacker who releases private photos and a publisher who prints images of politicians in compromising positions.”