Is “revenge porn” protected free speech? Texas Court of Criminal Appeals to weigh in.

A state appeals court ruled Texas' "revenge porn" law unconstitutional. Now, the state's highest criminal court will decide.

 Photo illustration by Miguel Gutierrez Jr. / The Texas Tribune

More than three years ago, a statute aimed at criminalizing “revenge porn” passed the Texas Legislature with rare bipartisan support — it passed both chambers with nary a “nay” vote and won a swift signature from the governor.

Now, the fledgling law faces an existential threat: a legal challenge alleging it violates free speech rights. A state appeals court in April ruled the law unconstitutional, writing that “it violates rights of too many third parties by restricting more speech than the [U.S.] Constitution permits.” Now, the case, set for submission Wednesday before the Texas Court of Criminal Appeals, awaits final reckoning.

The vast majority of states have some kind of “revenge porn” law on the books. Signed into law in June 2015, the Texas statute makes it a class A misdemeanor to publicly post intimate photos of a partner sent with the understanding that they would remain private. Conviction can bring a fine of up to $4,000 and a sentence of up to a year in jail.

Congresswoman-elect Sylvia Garcia, the Houston Democrat who authored the bill as a state senator, defended its importance.

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“The law is about a horrific practice that is about victimization, not speech,” Garcia said. “The law was crafted carefully to focus on only the worst and verifiable behavior that sexually defames its victims.”

The constitutional challenge stems from the conviction of Jordan Bartlett Jones, who was charged under the statute after sharing an intimate photograph of a woman without consent, according to court documents.

His attorney, Mark Bennett, a Houston First Amendment lawyer challenging the law on constitutional grounds, said it’s a clear violation of free speech rights.

“We engage in lots of harmful speech, and it’s constitutionally protected,” Bennett said. “If a statute restricts a real and substantial amount of protected speech, then it’s void.”

In April, the Tyler-based 12th Court of Appeals agreed with him. The state asked for that appeals court to rehear the case. After it declined, the state’s highest criminal court agreed in July to take up the matter.

After this week, the case will be fully briefed, and the high court could rule any time. A decision is expected in the next several months.

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The Office of the State Prosecuting Attorney, which is defending the law, argues it should stand.

“There is no ‘core political speech’ at risk here. Common sense dictates that the conduct prohibited by the statute — violations of privacy of the most intimate kind — is not necessary or even helpful to a vibrant democracy,” said John Messinger, an attorney for the state. “The Legislature determined that ‘revenge porn’ and the like leads to emotional trauma, threats of violence, and even suicide, and it passed a law to comprehensively address this serious problem. By any standard, the statute is a constitutional act of representative democracy.”

Central to the case is the question of how skeptically courts should look at laws that limit free expression. Bennett argues that the law should be subject to “strict scrutiny” from the court — a high bar that often proves difficult for states to clear. Any restrictions on fundamental speech rights, he reasons, have to be looked at skeptically.

The state, for its part, argues the law should be considered with a lower level of “intermediate scrutiny.” Because the intimate, sometimes lewd images at issue in “revenge porn” do not constitute a “matter of public concern,” the state argues, they don’t merit as much protection as speech on pressing political questions like property taxes.

“Speech that is not essential for the marketplace of ideas to function properly is not entitled to the highest level of protection afforded by the First Amendment,” state attorneys wrote in a Nov. 12 brief.

Bennett said that argument amounts to asking the high court to undo centuries of First Amendment law. Bennett is also arguing four similar “revenge porn” cases before lower courts in Texas.

The Texas attorney general’s office also weighed in to defend the law in a May 8 brief to the 12th Court of Appeals.