Improper Photography Vague

 Improper Photography §25.15(b)(1) is Vague
The 3 ways in which a law may be considered vague was established in Grayned v. City of Rockford, 408 US 104, 108 (1972).  A law is vague;
    (a) If it fails to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited
    (b) If it delegates basic policy matters to policemen, judges and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application
    © If, where the statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms

§25.15(b)(1) is Vague because it requires law enforcement officers and others to make personal, subjective judgments about 1st amendment speech. Exhausting the myriad ways this law could be misapplied could be the subject of an interesting Harvard University philosophical debate. Are men only aroused by women underwear? How about breasts, legs, butts, eyes etc? Are law enforcement officers experts in people’s sexual fetishes? If not, is the law discriminatory towards heterosexual males?…….you get the philosophical drift.

The Supreme Court has traditionally been very antagonistic to vague laws that raise 1st amendment issues. The reason is Vague laws that touch on speech have the unintended consequence of making people censor themselves unnecessarily. This point always missed here is that in the eyes of the Supreme Court, that chilling effect on speech is more important than how some prosecutor chooses to apply the statute. The mere fact that the law exists and people are aware of it is problematic enough. A photographer for example, aware of this law will steer far clear of the danger zone in order to avoid the serious consequences that flow from an arrest or conviction of a felony sex crime. In Reno v. ACLU, the Court noted the special concern with which it reviews vague laws that affect speech
    “Regardless of whether the CDA (Communications Decency Act) is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for purposes of the First Amendment…Could a speaker confidently assume that a serious discussion about birth control practices, homosexuality…or the consequences of prison rape would not violate the CDA? This uncertainty undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials. The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a regulation raises special First Amendment concerns because of its obvious chilling effect on free speech. Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two years in prison for each act of the violation. The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. As a practical matter, this increased deterrent effect, coupled with the risk of discriminatory enforcement of vague regulations, poses greater First Amendment concerns than those implicated by civil regulation…” Reno v. ACLU, 521 US 844,874 (1997)
        Like the CDA, §25.15(b)(1) is a vague law that affects free speech and comes with severe criminal penalties. There is no reason to believe that it will suffer a different fate.
    “A law imposing criminal penalties on protected speech is a stark example of speech suppression.” Ashcroft v. Free Speech Coalition, 535 US 234 (2002)

Improper Photography Unconstitutional

This writ by a lawyer from Austin Texas illustrates why this Texas law is unconstitutional.
http://austindefender.com/improper-photography-writ-finally/. The document is exhaustive and I have never understood why The ACLU of Texas has not attacked this law. Maybe its the stigma associated with "sex crimes". You could also make the argument that it is such stigma that allowed this obviously unconstitutional law to be passed in the first place.

Photography Defense

This blog is dedicated to the defense of public photography. During the last decade we have witnessed an increase in the number of laws aimed at criminalizing public photography. In Texas, the two  main culprits are Improper Photography and the "Interference with public duties" law. The latter law makes it illegal to record on-duty police officers. You would think cameras would act as deterrents to police brutality and prevent such heinous police acts as we witnessed in the Chad Holly case in Houston, Texas.

                    Looking at this new trend of criminalizing public photography one cant help but wonder whether cameras are the new guns. Somehow we have been led to believe that cameras are more harmful to public safety than guns. This defies all logic because we all know guns are more dangerous. So what is the real story?

                  It all boils down to lobby groups. There are very powerful lobby groups that control both the Republican and Democratic Parties. The constitutional fights we have become accustomed to from politicians often have very little to do with actual reverence to the constitution. They are often fights to protect the lobby groups that fund them. The National Rifle Association(NRA) for example has deep roots in the GOP so any proposed legislation that is viewed to be anti-gun is met with fierce resistance from Republicans(2nd amendment). The same is true for talk radio that has traditionally favored Republicans. Any proposal to even the talk radio field is fiercely resisted by Republicans as an afront to free speech(1st amendment). Democrats do the same thing on the other side. The point is these so-called constitutional fights by politicians often have more to do with lobby interests than actual respect for the constitution.

                  Photography, which is also protected under the 1st amendment, has no known powerful lobby group. This is why laws like Improper Photography are easily passed eventhough they clearly infringe on the 1st amendment rights of photographers. Improper Photography does not meet the "narrowly tailored" requirement the Supreme Court uses when evaluating laws that are deemed to curtail free speech. Can you imagine what would happen if after the deadly Arizona shooting a law was proposed banning talk radio hosts from using violent gun imagery or talking about 2nd amendment remedies? The Republicans would run the sponsor of such a bill out of town for being anti free speech. Ironically the same Republicans(i.e Texas) are quick to take away the first amendment rights of photographers.

                    Is there a good reason why photography does not have a powerful lobby group? The answer is yes because you have to remember that the constitution as it relates to the 1st amendment protects those bad or "improper" areas of speech. It would for example protect those bad things you hear on talk radio or some controversial literature. When you apply that to photography you would mostly be referring to pornography. You will be hard pressed to find a politician publicly defending pornography eventhough most pornography is legal. It is for this reason that most states continue to enact laws attacking photography eventhough its protected under the 1st amendment.

                   This blog will be dedicated to bringing photography back to its rightful place at the 1st amendment table. This step-child treatment of public photography has to end. We will either uphold the 1st amendment or not. If its OK to sacrifice photographer's 1st amendment rights, then some talk radio limitations are in order. No more of this double standard!!!!