Appeals Court Strikes Down "Improper Photography" Law

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A Texas appeals court has ruled the state can't ban "improper photography" in public places, striking down a sweeping law that criminalized photos taken in public "with the intent to arouse or gratify the sexual desire of any person."

Like many free speech battles, the underlying case that triggered the ruling involves some rather creepy behavior. San Antonio prosecutors charged Ronald Thompson, a middle-aged Kentucky man, with "improper photography" alleging that in 2011 parents at a local SeaWorld waterpark found him swimming with and snapping photos of children in their bathing suits. "It's not a bunch of kids with smiles on their faces and that's it. I don't think you have a First Amendment privilege to invade someone's sexuality," Bexar County DA Susan Reed told the local paper when the case was appealed last year.

Don Flannary, the same crusading attorney representing a New Braunfels teen accused making a terroristic threat on Facebook (read more about that case here), decided to use Thompson's case to challenge the "improper photography" law as an unconstitutional free speech violation. Flannary scored a victory last year when the state's Fourth Court of Appeals threw out Thompson's case, citing free speech concerns (in oral arguments, Fourth Court Chief Justice Catherine Stone reportedly asked prosecutors, "What if someone has a foot fetish and they belong to a club of people with a foot fetish, and they walk around SeaWorld taking pictures of people's feet?"

The law, Flannary argued in court, restricted not just public photography but attempted to criminalize photographers' intent - he argued that the law would punish those "with their mind in the proverbial gutter...such a stance is undoubtedly the stuff of Orwellian 'thought-crime' rather than the reasonable advancement of an important government interest." While the state certainly has an interest in prohibiting peeping toms or up-skirt photography, the language of the law failed to distinguish those violations of privacy from merely snapping photos of a woman in a skirt walking down a public street, he argued.

And naturally, free press folks took interest, too. The Reporters Committee for Freedom of the Press submitted an amicus brief with the court before it heard arguments. First Amendment scholar Eugene Volokh even argued before the court on behalf of the team arguing the law violates constitutional protections on free speech.

And while prosecutors, quite remarkably, tried to argue photography was not an inherently expressive act (We're sure most every photographer would disagree), and that the First Amendment was not even implicated, the Criminal Court of Appeals saw things differently. "The inherently expressive nature of pictures is reflected by the fact that phrases like 'a picture is worth a thousand words' and 'every picture tells a story' are considered clichés," wrote Justice Sharon Keller in her ruling. "The camera is essentially the photographer's pen or paintbrush."

KTRK reports that the Harris County DA's office is now reviewing its own "improper photography" cases in light of Wednesday's ruling. Harris County currently has 15 such cases pending, although a DA's spokesman said the ruling "could affect completed cases."

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