Ex Parte Ronald Thompson
2013 Tex. App. LEXIS 11168
| Tex. App. | 2013Background
- Thompson was arrested in 2011 and charged with 26 counts of improper photography under Tex. Penal Code 21.15(b)(1).
- This is Thompson’s pretrial habeas corpus challenge alleging the statute is facially unconstitutional under the U.S. Constitution and Texas Constitution.
- Trial court denied Thompson’s pretrial habeas corpus relief on January 25, 2013; the court clarified it denied on the merits on March 7, 2013; Thompson appealed.
- Statute 21.15(b)(1) prohibits taking/recording photographs of others in public places (not bathrooms/private dressing rooms) with intent to arouse or gratify sexual desire, without consent.
- The court held the statute facially unconstitutional and overbroad, remanding to dismiss all charges under 21.15(b)(1) for failing intermediate scrutiny; no need to address vagueness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is 21.15(b)(1) a First Amendment restriction on protected speech? | Thompson: statute regulates protected photography and thoughts. | State: statute regulates conduct, not protected speech. | Overbreadth; statute restricts protected speech and thoughts. |
| Is the statute content-based or content-neutral? | Thompson: content-based restriction on speech. | State: content-neutral time/place/m manner restriction. | Content-neutral; subject to intermediate scrutiny. |
| Does the statute satisfy the O’Brien four-part test? | Legislation exceeds government power and is not narrowly tailored. | State: serves important privacy interests; may restrict expression. | Fails intermediate scrutiny; overbroad and invalid. |
Key Cases Cited
- United States v. Stevens, 559 U.S. 460 (2010) (photography/sexual expression protected by First Amendment except where unprotected)
- Nyabwa v. State, 366 S.W.3d 710 (Tex. Crim. App. 2012) (statutory improper photography regulates intent, not content (dissent cited))
- Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010) (noncommunicative conduct exception; importance of intent to communicate)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (content-neutral restrictions subject to intermediate scrutiny)
- O’Brien v. United States, 391 U.S. 367 (1968) (four-part test for content-neutral speech regulation)
- Stanley v. Georgia, 394 U.S. 557 (1969) (thoughts and private thinking protected from government control)
- Byrum v. State, 762 S.W.2d 685 (Tex. App.—Hous. [14th Dist.] 1988) (intent-based restrictions may raise First Amendment concerns)
- Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) (overbreadth considerations in First Amendment)