A Texas Appeals Court has thrown out the 2015 state law which aims to outlaw what is called 'revenge porn,' which is when a person who is jilted in a relationship seeks revenge by posting naked or compromising photos of the person who dumped him or he on line, News Radio 1200 WOAI reports.
The law sought to criminalize revenge porn by making it a felony for any person to post 'nude or compromising' photos without the consent of the person in the photograph. The photograph must have been taken in a setting under conditions where the person had 'reasonable expectation of privacy.' The law states that to be illegal, the photo has to 'reveal the identity of the depicted person in any manner.'
But the 12th Texas Court of Appeals ruled that the law violates the First Amendment's protection of free speech, by regulating speech based on the content of that speech.
"The person's purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves," the court ruled in an 11 page ruling. "Because the photographs and visual recordings are inherently expressive and the First Amendment applies to the distribution of such expressive media in the same way it applies to their creation, we conclude that the right to freedom of speech is impacted in this case."
The court then went on to say that, hoever disturbing 'revenge porn' may be, banning it amounts to an unconstitutional ban on 'content based speech.'
"New categories of unprotected speech cannot be added to the list based on a conclusion that certain speech is too harmful to be tolerated," the court said, pointing out that there are certain categories of unprotected speech, including 'obscenity, defamation, fraud, incitement (the famous 'yelling fire in a crowded theater' example) and speech 'integral to criminal conduct'."
The court also says revenge porn, in this case, varies from laws which clearly are important, like laws prohibiting so called 'upskirt' photography. "We have concluded that Section 21.16(b) is an invalid content-based restriction and overbroad in the sense that it violates rights of too many third parties by restricting more speech than the Constitutional permits," the court concluded. "Accordingly, we hold that the law to the extend it proscribes the disclosure of visual material, is unconstitutitonal on its face in violation of the Free Spech clause of the First Amendment."T
he court ordered that charges against the man charged in the case be dismissed.