Ex Parte: Jordan Jones, 12-17-00346-CV

Background

Appellant Jordan Bartlett Jones seeks habeas relief from an Information charging him under Tex. Penal Code § 21.16(b) for allegedly disclosing an intimate photograph without the depicted person's effective consent, causing harm and revealing the victim's identity.
Jones filed a facial First Amendment challenge arguing § 21.16(b) is overbroad and, if narrowed, unconstitutionally vague; the trial court denied habeas relief and Jones appealed.
The statute (§ 21.16) makes it an offense to intentionally disclose or promote "visual material" showing intimate parts or sexual conduct when obtained in circumstances giving a reasonable expectation of privacy, causes harm, and reveals the victim's identity; penalties include a Class A misdemeanor.
Jones' core legal claim: the statute is a content-based restriction on expressive conduct (disclosure of images) that burdens protected speech beyond established unprotected categories (e.g., obscenity, child pornography, defamation), and therefore fails strict scrutiny.
Alternative claim: any narrowing construction required to save the statute from overbreadth would leave it vague and impermissibly give inadequate notice, chilling speech.

Issues

Issue	Plaintiff's Argument (Jones)	Defendant's Argument (State)	Held
Whether § 21.16(b) is a content-based restriction on speech	§ 21.16(b) regulates the disclosure of visual material (expressive conduct) based on subject matter and content, so it is content-based and presumptively unconstitutional	The State would contend the law targets privacy-invading conduct, not protected expression, and is justified by protecting victims	Trial court denied habeas relief (appellant challenges that denial on appeal)
Whether § 21.16(b) is facially overbroad under the First Amendment	The statute sweeps substantially protected speech (non-obscene, non-child intimate images) and therefore is not narrowly tailored to a compelling interest and fails strict scrutiny	The State would argue the statute targets harmful, nonconsensual disclosures and is limited by elements (expectation of privacy, harm, identity disclosure)	Appellant argues it is substantially overbroad; trial court rejected claim (appeal pending)
Whether a narrowing construction would save the statute or render it vague	Any limiting construction necessary to avoid overbreadth would leave the law too indeterminate to give fair notice and would chill lawful speech	The State would assert contextual elements (harm, identity revelation, privacy expectation) supply limiting principles	Appellant contends a narrowing reading would be unconstitutionally vague; trial court denied relief
Whether harms (embarrassment, emotional distress) suffice as a compelling interest to restrict speech	Emotional harm from nonconsensual disclosure does not remove speech from First Amendment protection; statutes cannot add new categories of unprotected speech	The State would assert protecting privacy and preventing significant, often severe harm are compelling state interests justifying the statute	Appellant argues no recognized compelling interest permits restricting protected sexual expression; the trial court upheld the statute in the habeas ruling

Key Cases Cited

Ashcroft v. ACLU, 542 U.S. 656 (2004) (presumption of invalidity for content-based restrictions and State bears burden to justify)
United States v. Alvarez, 567 U.S. 709 (2012) (framework: content-based → ask whether speech is unprotected → strict scrutiny if protected)
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) (need to examine content to determine coverage = content-based regulation)
Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014) (photography/visual material as expressive conduct; content-based restrictions subject to strict scrutiny)
Ward v. Rock Against Racism, 491 U.S. 781 (1989) (distinction between content-based and content-neutral time/place/manner regulations)
Cohen v. California, 403 U.S. 15 (1971) (broad protection for offensive expression)
Brown v. Entertainment Merchants Ass'n, 564 U.S. 786 (2011) (courts will not create new categories of unprotected speech)
Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010) (discusses ‘‘harm’’ and emotional distress in related contexts)
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (vagueness and chilling effects in speech regulations)