austindefender

Criminal defense in Austin Texas.

Writ of Habeas Corpus pages 6-7

Posted By on August 20, 2009

Issue Presented

The issue presented is whether Penal Code §21.15(b)(1), “Improper Photography,” violates the First Amendment of the United States Constitution and Article I, §8 of the Constitution of the State of Texas.

Statement of Facts
Applicant was arrested on a charge of “Improper Photography,” and has posted bail.1 He is alleged to have transmitted images without consent and with the intent to arouse.

Summary of the Argument
“Improper Photography” criminalizes speech based on its content. When a law criminalizes speech based on its content, it “abridges” the freedom of speech within the meaning of the US Constitution, and “curtails the liberty of speech” within the meaning of the Constitution of the State of Texas. While Texas jurisprudence2 regarding Article I, §8 is limited, the US Supreme Court has developed a substantial body of law explaining the meaning of “freedom of speech.”
First, when the government abridges speech, it loses the presumption that it is acting constitutionally. A law that limits speech is presumed unconstitutional.
Second, the burden of proof shifts from the person whose speech is burdened to the government. When the government restricts speech it is the government that must prove it’s acting constitutionally.
Third, the government may restrict speech only when it has a compelling interest. It is up to the State to show it has a compelling interest, and to demonstrate that the restriction advances that interest.
Fourth, the state may only limit as much speech as necessary to achieve its purpose. Even if the government has a compelling reason for restricting speech, if legislation restricts speech that is unrelated to that purpose, it is unconstitutional. Legislation must be “narrowly tailored” to limit as little speech as possible.
Fifth, if there is a less restrictive way to achieve its purpose, the state must use that method.

While the government may have a compelling interest in protecting people’s privacy, “Improper Photograph,” is not narrowly tailored. It suppresses substantially more speech than necessary, and alternative means are readily available, which would advance the State’s interest in a less-restrictive and constitutionally permissible way.


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