The Grumpy-Cat Rule


From the San Antonio Court of Appeals’ opinion in Ex Parte Thompson (PDF), which is before the Texas Court of Criminal Appeals on discretionary review (and will be argued tomorrow morning by Don Flanary III of San Antonio and Eugene Volokh of L.A.):

[W]e hold the plain language of the subsection 21.15(b)(1) does not “limit” or “restrict” the substantive content of photographs—in other words, it does not favor one type of photograph over another. See Turner, 512 U.S. at 642. Rather, the statute limits speech by imposing time, place, and manner restrictions that are unrelated to content. See Clark, 468 U.S. at 293. Accordingly, we hold subsection 21.15(b)(1) regulates speech in a content-neutral manner, requiring intermediate scrutiny. See id.

Here’s the gist of Texas Penal Code Section 21.15(b)(1):

A person commits an offense if the person photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room….

The San Antonio Court got the question of whether 21.15 is content-based or content-neutral wrong. (It matters because a content-based statute has to pass stricter scrutiny than a content-neutral one; the San Antonio Court found that 21.15 did not even pass the lesser scrutiny.)

If it is necessary to look at the content of the speech in question to decide if the speaker violated the law, then the regulation is content-based. Gresham v. Peterson, 225 F.3d 899, 905 (7th Cir. 2000).

With Section 21.15, it is necessary to look at the content of the speech (the photograph): if it contains “a visual image of another,” that is, a picture of a person, it can infringe the statute; if it does not contain a picture of a person, it cannot.

For the convenience of courts of appeals for whom this concept might be too complex, I offer the Grumpy Cat Rule: If the statute favors images of grumpy cats over other images, its regulation of speech is content-based.


8 responses to “The Grumpy-Cat Rule”

  1. Mr Bennett please dont forget that first real challenge to this law was by a prose litigant (nyabwa) back in 2011. The Texas 14th court of appeals ruled against nyabwa in 2011 and the CCA declined review. Nyabwa took a 2254 in federal court that was denied in september 2012 upon which he appealed to the 5th circuit court. The 5th circuit found nyabwa’s arguments very credible and remanded the case back to US District court (4-12-cv-01152). This case believe it or not is not yet decided (probably because nyabwa is a prose indigent). The san antonio judge in striking down 21.15 makes numerous references to nyabwa’s case. The point I am making is when its all said and done dont forget to give mr nyabwa his due credit. Very rarely do you see a prose indigent defendant mounting a successful constitutional challenge.

    • True, and Mr. Nyabwa hasn’t yet mounted a successful constitutional challenge. If he had had competent counsel in 2011, the result might well have been different, for him and for the First Amendment.

      If you happen to hear from Mr. Nyabwa, please have him call me. I’ve been trying to find him to volunteer to take on his 2254 pro bono (since the 5th Circuit didn’t think he should have appointed counsel), and the address that the District Court has for him is no good.

  2. Mark there has been movement in the nyabwa case. He has updated his mailing address so you probably could reach him now. Anyway on 6/18/2014 the AG filed a motion for summary judgement in the case to which nyabwa issued an interesting response. He lashed out at the Texas 14th court, calling its decision a “bizarre” and “political”. He also challenged the AG to explain how the Texas Improper Photography law is a voyeurism law when its text does not contain the invasion of privacy element. It will be interesting to see how the magistrate judge(Frances H Stacy)handles it from here. If fair, she should ask the AG to respond to the invasion of privacy element issue nyabwa raised. However she is a republican appointee so expect the usual nonsense–politics from the bench!!!

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