I doubt that James Madison had open-toed shoes in mind when he was crafting the First Amendment to the U.S. Constitution, but that’s the direction a freedom-of-expression discussion took last week in a San Antonio courtroom.
The 4th Court of Appeals was hearing oral arguments in a case involving Ronald Thompson, a middle-aged Kentucky man who, during an extended stay in San Antonio in 2011, went to a local water park and allegedly recorded footage of 26 women (including one in a blue bikini with a lime-green peace sign on her buttocks) without their consent.
Donald Flanary, Thompson’s attorney, is a First Amendment warrior who doesn’t shy away from representing unsympathetic clients. He recently attracted national attention for representing Justin Carter, a 19-year-old New Braunfels man indicted for posting Facebook messages that authorities said indicated his desire to shoot kindergartners. Carter later apologized for the offensive posts, which he described as a failed attempt at sarcasm.
In its own way, the Thompson case is equally fascinating. Flanary says he and Thompson dispute some of the allegations, but they’re not even dealing with factual issues at this point.
Instead, Flanary is on a mission to strike down a section of the Texas Penal Code prohibiting the recording or transmitting of an image without the subject’s consent and “with intent to arouse or gratify the sexual desire of any person.”