2015.16: Another Proposed Texas Revenge-Porn Statute


Texas HB496:

Sec. 21.16. UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATE
VISUAL MATERIAL. (a) In this section:
(1) “Intimate relationship” means a marriage relationship or a relationship of a romantic or intimate nature between two persons.
(2) “Promote” and “sexual conduct” have the meanings assigned by Section 43.25.
(3) “Visual material” has the meaning assigned by Section 43.26.
(b) A person commits an offense if the person:
(1) by electronic means, intentionally discloses visual material depicting another person engaged in sexual conduct;
(2) was in an intimate relationship with the depicted person when the visual material was created or transmitted to the person;
(3) knows or should have known that the depicted person has not consented to the disclosure; and
(4) discloses the visual material with the intent to cause harm to the depicted person, including mental anguish, emotional distress, actual or threatened physical violence, economic harm, harm to reputation, or harassment by a third party.
(c) A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an Internet website or other forum for electronic publication that is owned or operated by the person.
(d) It is not a defense to prosecution under this section that the depicted person:
(1) created or consented to the creation of the visual material; or
(2) voluntarily transmitted the visual material to the actor.
(e) It is an affirmative defense to prosecution under this section that the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure consisted of visual material provided by another person.
(f) An offense under this section is a Class A misdemeanor.
(g) If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.

This is a tighter statute than HB101, which would forbid intentionally disclosing visual material depicting another person engaged in sexual conduct if the actor was negligent about whether the depicted person has not consented to the disclosure.

Under HB496, an intimate partner would be liable for disclosing visual material showing sexual conduct only if she disclosed it electronically, was negligent about whether the complainant had consented, and disclosed it with the intent to cause harm. “Harm” is not defined, but some examples are given.

The bill would create criminal liability for website owners, but not for other third parties. So if an intimate partner gave prints to her friend who then scanned them and posted them online neither the partner (who did not disclose them electronically) nor the partner’s friend (who was not in an intimate relationship with the complainant) is liable (though the State might be able to cobble together an argument for party liability). Expect this to change if the statute goes any farther.

It’s also a class A misdemeanor, which is sure not to satisfy the bloodthirsty criminalizers. Expect this also to change.

Subsection (c), dealing with website owner liability is not written very well. It says: “A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an Internet website or other forum for electronic publication that is owned or operated by the person.” What is the “character and content” of the visual material? It must depict another person engaged in sexual conduct, and the website owner must know that, but must she know that he did not consent to disclosure?

It fails the Weiner test (sharing the congressman’s dick pics would be punishable), but how does the bill stand up to constitutional scrutiny?

It forbids disclosure of images based on their content—depicting another person engaged in sexual conduct—so it is a content-based restriction on speech. It is presumptively unconstitutional unless the speech it forbids (or at least the vast majority of that speech) falls into a category of historically unprotected speech. The speech—erotic pictures disclosed without consent with the intent to cause harm—falls into none of the already-recognized categories of unprotected speech, so unless the Supreme Court recognizes another category of unprotected speech it fails the Stevens test.

That’s a big “unless.” See the discussion of categories of unprotected speech here.


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