State of Texas v. Hunter Thomas Taylor [Updated]

Those who think we need a statute criminalizing nonconsensual porn need look no further. Texas’s improper-photography statute says:

A person commits an offense if the person…by…electronic means…transmits a visual image of another at a location that is not a bathroom or private dressing room…without the other person’s consent; and…with intent to arouse or gratify the sexual desire of any person;

In a deposition in August Hunter Thomas Taylor, the alleged proprietor of revenge-porn site, told lawyer John S. Morgan, “I’m not at fault for anything because I just opened the platform and let people post whatever they wanted.”

Texas’s Law of Parties states:

A person is criminally responsible for an offense committed by the conduct of another if…acting with intent to promote or assist the commission of the offense, he…aids…the other person to commit the offense.

I believe Taylor is representing himself, and probably shouldn’t be. Because improper photography is a felony, and if he said what Morgan says he said, he’s two-thirds of the way to confessing to a felony—actually, a vast number of felonies.

Assuming that his website posted erotic pictures (which would be probable cause for the “intent to arouse” element) and mentioned “revenge” (probable cause for the “without consent” element) the State can charge Morgan with a state-jail felony for each image Taylor “let people post” to the website that he maintained.

The court will set separate bail on each case; even at low state-jail-felony bail amounts (say $2,000 per case) the state can keep filing cases until Taylor is broke and no longer has the resources to get out. How many images were there on 5,000? 10,000? If he wants to make $20,000,000 bail, he’ll need $21,000,000 in cash, because no bondsman in Texas is going to touch that bond without full collateral.

Each case will have a two-year maximum day-for-day sentence, but the State will have to try Taylor separately for each case they want run consecutively; if they try cases together the sentences will be concurrent. Taylor will (presuming that he has no felony convictions) be eligible for probation. If he gets probation, the trial court can set conditions of probation, including up to 180 days in jail—again, day-for-day.

Indicting Taylor is not rocket surgery: “On or about some date in the last three years, in some county in Texas, he transmitted a visual image of another, without that person’s consent, with the intent to arouse or gratify someone’s sexual desire. Against the peace and dignity of the State. Signed, foreman of the grand jury.”

True, I think the statute is unconstitutional. And Morgan can certainly argue that the statute violates the First Amendment, either while he’s sitting in an East Texas jail (if he’s curious about the timeframe, the fight I’m having over the unconstitutionality of Texas’s online-solicitation-of-a-minor statute has been going on since 2010), or after he’s a convicted felon.

Hell, I’ll even argue it for him pro bono, as long as he hires someone else to handle the substantive case. I’m just the law man.

The problem with revenge porn is that it is nonconsensual—the nasty sequelae are just the icing on that cake—and Texas’s improper-photography statute cuts right to that point.

So let’s stop letting the law profs show how little First Amendment law they know and digging states into ever-deeper constitutional morasses; it’s embarrassing to everyone. No, let’s hash out the constitutionality of statutes forbidding revenge porn here and now.

After the trial court we’ll go to the Beaumont Court of Appeals, then the Texas Court of Criminal Appeals if they’ll grant review, and the Supreme Court if they will.

The law is in place, the defendant is in place, and the complaining witnesses—plaintiffs in the suit against—are organized and willing to show their faces.

And whether Taylor can afford to mount a proper First Amendment attack on the statute or not, charging him with a bunch of cases will at least give his victims the satisfaction of seeing him cool his heels in jail for a while.

That’s worth something.

[Update: Cathy Gellis has pointed out that Section 230(c)(1) and (e)(3) of the Communications Decency Act, 47 USC 230, would eventually dispose of a state prosecution against Taylor, though he might still have to sit in jail while the issue gets resolved in the appellate courts. That would stymie the goal of getting the constitutionality of the statute tested.

Surely one of the victims of has some proof that a particular ex-boyfriend uploaded her images; that boyfriend could not avail himself of the Section 230 defense, and so would be a better test defendant.]

20 responses to “State of Texas v. Hunter Thomas Taylor [Updated]”

  1. But that would be far more about retribution than the law pursuing a just and fair case. Oh wait! Since the site was about revenge pR0n what would it take to legally get some revenge back if someone posted your selfie without permission? Can a selfie be trademarked or patented so that you could extend or remove permission to have a copy? That should make all of those out-of-work lawyers busy! At least you would have better grounds to sue someone for using your “trademark” without permission and collect some coins in the bargain. Image some homemade grind video starting off with the usual FBI WARNING notice in 7 languages. ~grins~ Ric

  2. The San Antonio Court of Appeals declared the law unconstitutional about two months ago. Plus, Hunter isn’t the guy running Texxxan. A different guy is. he was on CNN a few months ago.

    • The posting of the naked pics does not have to be with intent to arouse. You seem to state that it does and that such a posting is prima facie evidence of intent to arouse. I disagree. It could have been done with intent to cause the ex- emotional distress or embarrassment. I could post pics of my ex-, not because I think she is sexy or I want to get other guys aroused by her pics. I could post them simply because I hate her and want to cause her trouble, embarrassment, or to lose her job, etc. Arousal would be far from my mind in that situation.

      So if I post my ex-‘s nude pics with intent to embarrass her, the law would not apply to me, in my opinion. what say you?

      • I say that you can have multiple intents, that the question of your intent will ultimately be one for the jury, that you would be in serious jeopardy—if that were your only defense—of an East Texas jury deciding that you had the intent to arouse or gratify, and that in the scenario I’ve outlined you’d be sitting in jail pending that decision.

        The question on my mind is this: if you are Taylor, do you have the backbone for the fight, or are you going to turn tail and plead guilty as soon as your cell door slams shut?

    • The Dal­las Court of Appeals, El Paso Court of Appeals, and Houston’s 14th Court of Appeals all have held it con­sti­tu­tional.

      Is it incorrect to say that Hunter was the guy running Texxxan?

      • From what was in the news, Hunter Tayler is like 23 or 24. The guy who is behind Texxxan that was on CNN and ABC two months ago is a guy in his 40’s.

        And as for a jury not believing the posters intent, if that is all the evidence that they have, then the jury would be violating their oath to ignore it. A jury can only consider the evidence in front of them. Plus, it only makes sense. It’s called revenge porn. So right there it shows you what the intent is behind the posting of the pictures – REVENGE.

        In your response below you say the if Facebook had a different name then they would be liable under your theory of the law. So we decide criminal prosecutions based solely if we like the name of the business and that its content / actions are irrelevant?

          • You keep going on about how Taylor (or whichever guy it is that is behind Texxxan) would have to sit in jail till this works out (the working out being the eventual resolution of the charges in his favor). You act like sitting in jail is such a big deal. Lots of people have sat in jail for things that they believed were right and in conditions far worse than he could expect in a Beaumont, Texas, jail.

            Besides, what prosecutor is going to take on a case in which he knows that he is going to lose in the end? Money and court resources are very scarce (as we have seen from the recent Govt shut down). And DA’s only get elected for winning cases, not losing them. And a lose here will only empower these kinds of guys.

            Many of the revenge porn crowd have been saying for years about how the FBI is just minutes away from arresting Hunter Moore. And he did things much more worse than the Texxxan guy did. Yet he is still walking around.

            You seem to speak with two minds. You go on and on about how the NJ and Calif revenge porn laws are unconstitutional. Yet you seem to be jumping up and down here thinking that the Texxxan guy (whoever he turns out to be) is going to be arrested soon.

            The arguments for unconstitutionality that apply in NJ and CA would also apply in TX. Same with the federal CDA section 230 immunity. Yet you prance around with glee acting like this kid is going to be arrested soon and will be hit with all kinds of charges and sitting in jail and such.

            Either the law is on the side of the people or it isn’t.

            Should anyone be arrested for Texxxan I would anticipate the immediate filing of a pre-trial writ of habeas corpus. Facial challenges to a statute are cognizable in Texas, right?

          • Yes, such claims are indeed cognizable, as evidenced by that San Antonio case involving the exact same law.

            [Balance of post deleted by MB. You don’t get to take personal shots at people from the cover of anonymity. As on Twitter, so are we done here.]

          • The thing about being anonymous is that you don’t have any credibility. You have to prove everything, including that you are not who you say you aren’t.

            So as far as I’m concerned you are Taylor.

            This blog post doesn’t exist in a vacuum. I’ve been writing regularly since 2007—this blog is not about you—and have been writing about the unconstitutionality of the improper photography statute since it first came to my attention in November 2012. But we need a test case, and, except for the 47 USC §230 problem, you would be as good a guinea pig as any and better than most. I think, as I noted in my update, Section 230 protects you.

            Given the Section 230 problem, the case should be filed against one of the ex-boyfriends rather than you. And yes, a pretrial writ of habeas corpus would be the first step. You’ve actually been talking to one of Texas’s experts on First Amendment challenges to statutes.

            DAs don’t know that a statute is unconstitutional; they won’t admit it; they’ll fight to the end to preserve it. I say we should tee one up and let the courts decide.

            But those who back criminalization do not really want that fight. They want to maintain the moral panic for as long as possible, writing their stupid ignorant defenses of a clearly unconstitutional statute while they drum outrage up to a fever pitch and get statutes passed everywhere before one can be stricken down anywhere.

            You only think I’m of two minds because you think that favoring the First Amendment means favoring dirtbags and douchey behavior. It doesn’t. If Section 230 weren’t a problem and you had to be sacrificed, spending a few months in jail for the First Amendment cause (go ahead, tough guy, spend a few months in jail), I’d be good with that.

          • Denial of a motion to quash is not appealable pretrial as denial of a writ of habeas corpus alleging facial invalidity would be.
            According to the District Clerk’s website, the motion to quash was denied 10/15 after the State amended the indictment. The new indictment is not available online.
            The case is not on the docket 10/31.

          • By the way, I never said that I was Taylor or not Taylor. You’re talking about the only poster, James Smith, whom you kept calling Taylor.

            I am not Taylor Hunter. But I do have an interest in 1st Amendment law and this case because I find it ridiculous that these wimmen’s answer to this problem is the reduction of freedoms for us all. I doubt anybody wants to hear Nazi speech or Holocaust denial nonsense. But we have to put up with it.

            Until these revenge porn people can come up with a law that would still allow a person to post Weiner’s weiner pics, they need to shut up.

          • Now you’re saying you are not Taylor. You miss the point: as an anonymous poster, you have no bona fides. You can’t prove that you aren’t someone.

            You and “James Smith” are, I think, the same person. James Smith is Taylor (see the last sentence of his comment). By the transitive property of anonymous commenters, you are Taylor. This is the cost of being anonymous.

            Weiner’s wiener pics—or any foreseen consequence—are a stupid place to suggest “if you fix this it’s okay.” It’s easy enough to write around a particular type of speech when designing a speech-restricting statute. The problem with the speech-restricting statute is the unforeseen consequences.

  3. The fact that the San Antonio court of appeals declared the law unconstitutional two months ago is pretty important. Especially since the circumstances in that case (which involved secret “up skirt” pictures in a super market) were much more egregious then the consensual porn / selfies in the Texxxan case.

    Plus, under your theory, Facebook would also be criminally liable for revenge porn, too, simply because they provided the platform.

    Hunter is not representing himself. He is being represented by Denise Germillion, whom I have already chastised for letting him do a depo w/o taking the Fifth.

    As I have repeatedly pointed out, the Texas law is a joke. All any guy has to do is state under oath that the only reason why he posted pictures was to embarrass or humiliate the girl. There is no way any DA could rebut that. Plus, it only makes sense (and, like Judge Judy always says, “If it makes sense, it’s probably the truth.”). Guys don’t post naked pictures of their ex’s just to get random, unknowable people aroused. They do it for revenge. To embarrass, to get the girl fired from work, to harass, and to cause her emotional distress – none of which is listed among the elements of the offense.

    Hunter Taylor is judgment proof. Texas is a non-garnishing state and I am quite certain that his property is below the limits of TX Prop. Code ch. 42 (property exempt from creditors claims).

    Attorney John Morgan filed this lawsuit in total bad faith. Why else would he have named Taylor’s parents as defendants (which he admits he did solely cuz they paid for the internets)? Morgan has a very long and well documented history of filing frivolous litigation.

    I doubt you will post this. But it is what it is. This case is BS and I will win.

    • HunterMr. Smith,

      Lawyering should be left to competent lawyers. You seemTaylor seems to be Dunning-Krugering.

      Yes, the San Antonio court invalidated the statute (this is not an issue that’s new to me) But Dallas, El Paso, and Houston have all upheld it, and the CCA refused to hear the Houston case. I think the difference in outcomes is a difference in lawyering; having argued a First Amendment case at the CCA very recently, I have high hopes that the CCA will agree with the San Antonio court. But it hasn’t happened yet, Beaumont isn’t San Antonio, and whoever is representing youTaylor is not Don Flanary.

      Under my theory, Facebook could be held liable as a party if Facebook were called “Revengebook.” In yourTaylor’s case, there is evidence that youhe had the intent to post sexual images without the consent of their subjects. It’s been suggested to me that 47 USC 230 would bar yourTaylor’s prosecution as a party; this may be so in the end, but youTaylor could (in my scenario) be sitting in jail while the issue worked its way through the trial and appellate courts.

      You seem to be laboring under the mistaken notion that if you testifyTaylor testifies in his criminal prosecution that youhe didn’t have the intent to arouse or gratify, it’s a silver bullet. Not so. The jury wouldn’t have to believe youhim. Juries disbelieve defendants every day, and if the content of the images is sexual I think your argument of no intent to arouse or gratify would be a hard sell in East Texas.

      As for the rest, most people are judgment-proof, and I’m not very interested in the civil suit.

  4. I’m confused.

    Recently, you have pointed out that content-based restrictions must survive strict scrutiny. “visual image of another at a loca­tion that is not a bath­room or pri­vate dress­ing room” seems to be identifying specific content.

    What makes Texas different?

    • “Strict scrutiny” doesn’t mean “specific content,” but if it did, “visual image of another at a location that is not a bathroom or private dressing room” would include just about every picture / painting / sketch of anyone ever made.

      On further reading and thought, it appears to me that the Supreme Court has turned away from “strict scrutiny” in the context of content-based criminal laws, in favor of a categorical approach. I think I discussed this in my post about the New Jersey statute.

  5. In that Harris County case I referenced to you earlier, the DA mtn to amend the indictment was granted. They got the court to allow the DA to amend the indictment by deleting the phrase “knowing the character and content of the video recording”. (though I don’t know how that makes any difference)

    Thus, the new indictment reads: “The duly organized Grand jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, [defendant], herein styled the Defendant, heretofore on or about April 4, 2012, did then there unlawfully, intentionally and knowingly TRANSMIT a VIDEO RECORDING of another person, namely, [complainant], hereinafter called the Complainant, which OCCURRED at a location that is not a bathroom or private dressing room, without the consent of the Complainant and with the intent to arouse and gratify the sexual desire of ANOTHER PERSON.”

    I have personally seen the videos in question. There are two of them. In each instance, the girl clearly knows that she is being recorded. She plays up to the camera. At several points she even takes control of the camera. While the first video is in a bathroom, it is just the two of them playing around on the vanity area and posing for the large wall mirror. The other scene is in a living room and they are both on the couch.

    What I was told is that this charge was brought about solely because [defendant] decided to post the video on the YouTube site. The DA is claiming that while there was consent to make the video, there wasn’t any consent to post it. (Which is the typical revenge porn scenario we’ve argued about before.) However, it should be noted that the video camera belongs to the defendant himself and not the girl. It was also made over at his house. So the video is his property. The girl works as a sometime “reporter” for Houston CW39.

    He posted it to get back at her and embarrass her. The clown prosecuting him is [redacted].

    • First, there’s no need to post the name of either the defendant or the complainant. It doesn’t add anything to the story, and when the case is ultimately dismissed the defendant doesn’t need any more web exposure than he’s going without your help.
      Second, you don’t get to call people names here from the cover of anonymity. The prosecutor on that case was the prosecutor on the case that the TxCCA just decided; he is no clown. He’s a smart guy and a good lawyer with the class to call me to congratulate me on my victory in the TxCCA.
      Third, I’m hoping I get to be the law man on this case. That statute is going down sooner or later, it might have the legs to go to the Supreme Court (because it includes the “lack of consent” element, which is au courant), and if it goes the defendant’s way it’ll do away with the silly notion that revenge porn qua revenge porn fits into some category of unprotected speech.

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