Ex Parte Nyabwa
2011 Tex. App. LEXIS 9721
| Tex. App. | 2011Background
- Nyabwa challenged Tex. Penal Code § 21.15(b)(1) in a pretrial habeas corpus proceeding.
- Statute makes it an offense to photograph or videotape a person in non-bathroom/dressing-room locations without consent, with intent to arouse or gratify sexual desire.
- Issue framed as facial challenges: about First Amendment, overbreadth, and vagueness.
- Trial court denied the writ without hearing; Nyabwa appealed challenging the statute as content-based, overbroad, and vague.
- Court reviews de novo the constitutionality of the statute and concludes the statute is not a violation of the First Amendment, not overbroad, and not vague, affirming the denial of the writ.
- Statute targets the photographer’s intent rather than the content of the image, and is deemed not to regulate speech.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 21.15(b)(1) violates the First Amendment | Nyabwa argues it regulates speech content. | State argues it regulates photographer’s intent, not speech. | Not a regulation of speech; no First Amendment violation. |
| Whether § 21.15(b)(1) is unconstitutionally overbroad | Statute sweeps in protected photography without consent. | Statute regulates conduct within legitimate state interest. | Not unconstitutionally overbroad; it does not substantially restrict protected conduct. |
| Whether § 21.15(b)(1) is unconstitutionally vague | Provisions are vague about how intent is judged. | Language provides sufficient guidance and notice. | Not vague; statute is sufficiently definite and provides fair notice. |
Key Cases Cited
- Regan v. Time, Inc., 468 U.S. 641 (U.S. 1984) (speech protected unless limited by state interests)
- Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656 (U.S. 2004) (content-based regulation requires strict scrutiny absent exceptions)
- United States v. Playboy Entm't Grp., 529 U.S. 803 (U.S. 2000) (content-based regulations face strict scrutiny; government bears burden to justify)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (U.S. 1994) (content-neutral regulations subject to intermediate scrutiny)
- City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (U.S. 1986) (time, place, manner regulations must be narrowly tailored to substantial government interests)
- Broadrick v. Oklahoma, 413 U.S. 601 (U.S. 1973) (overbreadth considerations in restricting conduct and speech)