Ct Finds Sharing nude photos of current or ex-partners protected under 1st Amd

[DGUtley]

Sharing nude photos of current or ex-partners protected under First Amendment, court rules. This is a shocking rule to me.
Is distributing intimate photos of current or previous sexual partners without their consent protected by the First Amendment? A state appeals court says yes. Now it will be up to the state attorney general's office to defend the state's "revenge porn" law, which was passed in 2015 and punishes those who post intimate images from previous or current relationships online. The Tyler-based 12th Court of Appeals said the law is unconstitutional because it's too broad and infringes on free speech, The Texas Tribune reported. In his findings in the case, Chief Justice James Worthen said the First Amendment usually prohibits "content-based" restrictions. The court also said that the law was vague and infringed on the rights of third parties who might unwittingly share intimate images, according to the Associated Press. The law originated from complaints from women who said they felt violated and abused when their exes posted naked or sexual images online without their consent. One woman, Hollie Toups of Nederland, found dozens of photos of herself online and organized a class action suit against the website where they appeared.


https://www.dallasnews.com/news/texa...venge-porn-law

Link to the decision here: https://law.justia.com/cases/texas/t...-00346-cr.html

[Peter1469]

That is crazy.

[DGUtley]

I briefly read the decision. I don't get it either. Maybe it was the broad vagueness. In other words, it could trap some third party that sees / shares it without knowing it was prohibited. But then again, isn't the point of a revenge porn site that it's all prohibited?

[MMC]

The ruling applies only to about a dozen northeast Texas counties that fall under the jurisdiction of the 12th Court of Appeals, but other courts would likely consider its reasoning, the Tribune reported.....snip~


Looks like the State is going to appeal. But that is nuts. How can they not think it causes damage to someone. Especially if it is multiple photos.

[DGUtley]

The ruling applies only to about a dozen northeast Texas counties that fall under the jurisdiction of the 12th Court of Appeals, but other courts would likely consider its reasoning, the Tribune reported.....snip~ Looks like the State is going to appeal. But that is nuts. How can they not think it causes damage to someone. Especially if it is multiple photos.

The issue wasn't that it didn't cause damage, the issue whether it violated the 1st Amendment.

[MMC]

The issue wasn't that it didn't cause damage, the issue whether it violated the 1st Amendment.

[PDF]Damages: A Remedy for the Violation of …

digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1224&...
... A Remedy for the Violation of Constitutional Rights ... when the substantive cause of action is for harm to other ... first amendment values and the ...

[MMC]

• You have zero right to free speech in a forum owned by someone else. They're entitled to kick you out, delete what you've said, change it, anything.
• You may not defame someone else. In the US the definition of defamation varies from state to state. This is also called slander or libel.
• You cannot publish obscene material. This includes line drawings or descriptions of child pornography even when no sexual abuse actually took place. This is governed by the Miller test.
• You may not claim military honors to which you are not entitled. This is governed by the Stolen Valor Act of 2013.
• You may not incite others to criminal acts or to riot. Brandenburg v. Ohio is the relevant Supreme Court ruling, which sets the standard for what is permissible.
• You may not participate in a criminal conspiracy even if your only action was speaking or writing. Making an agreement to commit a crime is itself a crime.
• You may not reveal any classified information in writing or speech.
• You may not urge people to dodge the draft in wartime.
• You may not urge support for organizations that the government has designated as sponsors of terrorism, even if you disagree with that designation and give no money yourself.
• You may not make false or fraudulent claims in the course of business.
• Your right to advertise is limited. No cigarette advertisements on TV.
• You are required to reveal certain information about food, drugs, and chemical products that you sell. The government can force you to speak.
• You have a limited right to free speech in the military.
• You have no right to say anything you have contractually promised not to, such as in a non-disclosure agreement.
• You have no right of free speech in the workplace, except union organization, which is protected by law.
• Children have only a limited right to free speech in school.
• You have no right to threaten anyone with violence.
• You have no right to speak any time you want to in a courtroom or other public proceeding, and you can be evicted or found in contempt and jailed for disrupting proceedings.
• You have no right to sexually, racially, or otherwise harass co-workers.
• You may not induce someone to break a contract they have with a third party. This is called tortious interference.
• You have no right to shout "Fire!" in a crowded theater.

There is a more detailed discussion of these types of limitations here: Freedom of speech in the United States

[Trish]

I'm not shocked because of where the court resides. Sometimes the most ridiculous decisions can be a catalyst to better laws or maybe even exercising smarter decisions by individuals.

[DGUtley]

• You have zero right to free speech in a forum owned by someone else. They're entitled to kick you out, delete what you've said, change it, anything.
• You may not defame someone else. In the US the definition of defamation varies from state to state. This is also called slander or libel.
• You cannot publish obscene material. This includes line drawings or descriptions of child pornography even when no sexual abuse actually took place. This is governed by the Miller test.
• You may not claim military honors to which you are not entitled. This is governed by the Stolen Valor Act of 2013.
• You may not incite others to criminal acts or to riot. Brandenburg v. Ohio is the relevant Supreme Court ruling, which sets the standard for what is permissible.
• You may not participate in a criminal conspiracy even if your only action was speaking or writing. Making an agreement to commit a crime is itself a crime.
• You may not reveal any classified information in writing or speech.
• You may not urge people to dodge the draft in wartime.
• You may not urge support for organizations that the government has designated as sponsors of terrorism, even if you disagree with that designation and give no money yourself.
• You may not make false or fraudulent claims in the course of business.
• Your right to advertise is limited. No cigarette advertisements on TV.
• You are required to reveal certain information about food, drugs, and chemical products that you sell. The government can force you to speak.
• You have a limited right to free speech in the military.
• You have no right to say anything you have contractually promised not to, such as in a non-disclosure agreement.
• You have no right of free speech in the workplace, except union organization, which is protected by law.
• Children have only a limited right to free speech in school.
• You have no right to threaten anyone with violence.
• You have no right to speak any time you want to in a courtroom or other public proceeding, and you can be evicted or found in contempt and jailed for disrupting proceedings.
• You have no right to sexually, racially, or otherwise harass co-workers.
• You may not induce someone to break a contract they have with a third party. This is called tortious interference.
• You have no right to shout "Fire!" in a crowded theater.

There is a more detailed discussion of these types of limitations here: Freedom of speech in the United States

The Court has long held that nudity is not obscenity -- even pornography. Thus, this is constitutionally protected speech, subject to ownership, minors etc. You can damage someone with your free speech, that happens all the time, the issue is whether it is actionable. Here, as I read the decision, it was vagueness that got them in constitutional trouble.

I'm not shocked because of where the court resides. Sometimes the most ridiculous decisions can be a catalyst to better laws or maybe even exercising smarter decisions by individuals.

I'm not sure what that means, but read the decision that then tell me whether you would say the same thing. I try really hard not to be a result-based criticizer. (admittedly, it is difficult). I don't like the result here, either, but you are talking about a content based prohibition of Constitutionally protected speech -- which largely receives the strictest scrutiny. The Texas legislature will tighten it up and the Court will be satisfied with it. I would hope that everybody here would be pleased that we still talk about the constitutional rights of the accused.

[Standing Wolf]

I agree that it is the vague nature of the law that - as often happens - ultimately doomed its being upheld.

I also believe that some distinction needs to be made between images that are obtained without the subject's knowledge or consent and those for which someone posed.