Summary
Texas Senate Bill 1135 would bar the distribution or promotion of an image depicting nudity or sexually explicit conduct if:
- the person in the image did not consent to the distribution;
- the image was obtained or created under circumstances that the person in the image had a reasonable expectation it would remain private;
- the person is identifiable by the image or accompanying information, even if the identifying information is added by a third party separate from the publication; and
- the dissemination caused harm to the person in the image.
A violation is a criminal offense, and the legislation also provides a private cause of action to the person depicted in the image to sue for a wide array of damages, including punitive damages. “Harm” is not defined in the bill.
Status
Gov. Greg Abbott signed the bill into law. The new law is effective on September 1, 2015.
Analysis
S.B. 1135 is overbroad. It applies to artistic, historical and newsworthy images, both in print and online. As a result, it criminalizes speech that lies at the very core of the First Amendment’s protections. The law makes no distinction between a hacker who releases private photos and a publisher who prints images of politicians in compromising positions.
The lack of a definition for “harm” makes the bill unconstitutionally vague. It is an essential element of the crime, but the use of the word “harm” without any qualifying adjectives means a publisher has no guidance on whether the law applies to any negative emotional response or more serious emotional or physical injury.
It also lacks a knowledge standard. A person can be prosecuted without having any knowledge that he or she has violated any elements of the crime, let alone all of them. A person is liable if he or she publishes a nude image, without knowing he or she lacked consent or even believing there was consent because the image was previously published; without any knowledge that the picture was created under circumstances that the person depicted has a reasonable expectation of privacy or that the publication caused harm; and without knowing who the person in the picture is.
The problem of the absence of a knowledge standard is compounded because the law allows a publisher to be prosecuted for the actions taken by another person. Under this bill, a person can innocently repost a picture without any idea who the person is in the image or the circumstances of the creation of the image. If a third party identifies the person in the image, the re-poster becomes liable for prosecution. Alternatively, a news site can be prosecuted for publishing a newsworthy image of a prominent figure engaged in sexual conduct with someone who is not his or her spouse if a third party “outs” the other person in the image. The news site would violate the law even if it had obscured the identity of the second person in the image to protect his or her identity.
History
- The bill was introduced [2] on March 10, 2015 and referred to the Senate Committee on Criminal Justice.
- The Senate Committee on Criminal Justice amended [3] the bill on April 7, 2015, and recommended that the bill be passed as amended.
- On April 14, 2015, the bill was amended [4] on the Senate floor. The Senate passed the bill as amended and sent it to the House for consideration. The bill was referred to the Senate Committee on Criminal Jurisprudence.
- The Senate Committee on Criminal Jurisprudence recommended the bill be passed.
- On May 26, 2015, the House passed the bill. The bill was sent to Gov. Greg Abbott for his signature.
- On June 5, 2015, Media Coalition sent a letter [1] to Gov. Greg Abbot, asking him to veto the bill. The letter explained the constitutional problems with the bill.
- On June 17, 2015, Gov. Greg Abbott signed the bill into law. The law is effective September 1, 2015.