Thompson, Ex Parte Ronald
2014 Tex. Crim. App. LEXIS 969
| Tex. Crim. App. | 2014Background
- Appellant Thompson is charged with 26 counts under Texas Penal Code § 21.15(b)(1) for non-consensual electronic recordings of others to arouse sexual desire.
- Texas Court of Appeals held § 21.15(b)(1) facially unconstitutional under the First Amendment and remanded for dismissal.
- State sought discretionary review; conviction defense argued photography/visual recording is protected expressive conduct.
- Supreme Court of Texas analyzed whether photography/recording constitutes First Amendment speech and the level of scrutiny.
- Court holds § 21.15(b)(1) is unconstitutional on its face as applied to photography/visual recording and affirms the Court of Appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is § 21.15(b)(1) a First Amendment issue? | Thompson argues statute infringes First Amendment speech and thought. | State contends photography is conduct, not speech, and may be compelled to show as-applied limits. | Yes; statute implicates First Amendment and is not purely conduct. |
| Is the statute content-based or content-neutral? | Thompson argues it targets sexual thought and is content-based. | State contends it targets privacy with neutral aims. | Content-based; strict scrutiny applies. |
| Does the statute satisfy strict scrutiny? | Thompson asserts no narrow tailoring to protect substantial privacy interests. | State asserts compelling privacy interests justify the restrictiveness. | No; not narrowly tailored, fails strict scrutiny. |
| Can a narrowing construction save the statute? | Thompson argues plain meaning cannot be narrowed to avoid First Amendment problems. | State urges broadening consent construction to preserve law. | No workable narrowing; consent definition is unambiguous and not subject to judicial redefinition. |
| Is the statute overbroad? | Thompson contends statute sweeps in protected public photography. | State asserts limited application to non-consensual, sexually arousing recordings. | Overbreadth concerns are substantial; statute invalid. |
Key Cases Cited
- Texas v. Johnson, 491 U.S. 397 (U.S. 1989) (held expressive conduct may be protected; context matters)
- Hurley v. Irish-American Gay, Lesbian and Bisexual Group, 515 U.S. 557 (U.S. 1995) (parade is expressive; not all conduct requires case-specific inquiry)
- Kaplan v. California, 413 U.S. 15 (U.S. 1973) (pictures, films, and other visual media protected as expression)
- Anderson v. City of Hermosa Beach, 621 F.3d 1051 (9th Cir. 2010) (visual art and photographs receive First Amendment protection)
- Regan v. Time, 468 U.S. 641 (U.S. 1984) (content-based restriction; depictions of money case permits content-based scrutiny)