In an earlier Art Law and Policy column (Spring 2011), I looked at the question of whether a state can declare subject matter off-limits to photographers. In that case, the subject matter was farms: the state of Florida was considering a bill that would have made it illegal to take photographs of a farm without consent. I argued that such a statute would be clearly unconstitutional. “[As] a general matter,” the Supreme Court has said, “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002) (internal quotation marks omitted; emphasis added). 

Texas Penal Code § 21.15(b)(1) presents a related question. What if it’s not the subject matter that’s off-limits, but the subject matter combined with the photographer’s intent in taking the photograph? The statute makes it a crime to photograph someone “without the person’s consent” and “with intent to arouse or gratify the sexual desire of any person.” Late last year, a Texas appellate court upheld the statute. Ex parte Nyabwa (Tex. Ct. App. Dec. 13, 2011). The Court acknowledged that “[photography] is a form of speech normally protected by the First Amendment,” but accepted the State’s argument that “the statute is not a regulation of speech at all, but instead is a regulation of the photographer’s or videographer’s intent.” Just as a statute criminalizing harassment by telephone (which will typically involve speech) does not violate the First Amendment because it focuses on the actor’s intent (in that case, “to inflict emotional distress”), this statute regulates “a person’s intent in creating a visual record,” as distinct from “the contents of the record itself.” On this basis, the Court concluded that the statute “is not a regulation of speech” and therefore does not violate the First Amendment.