Sending Nudie Pics: the broad, new (maybe unconstitutional) way you can get a ticket in Texas.
On September 1, 2019, a new law took effect making sending a nude photo without the recipient’s consent a Class C misdemeanor with a fine of up to $500.00. While that may not look problematic on its face, its broad language violates the First Amendment, according to Flanary Law Fimr, PLLC, owner Don Flanary.
Irene Cruz of News 4 San Antonio interviewed Don Flanary on the issue recently. A link to that video can be found here:
The law started as House Bill 2789 filed by Morgan Meyer, R-Dallas, and took effect September 1, 2019 after Governor Greg Abbott signed it. While the bill was obviously good-natured, it was written with such broad language that its legality is questionable.
As Don points out in this interview, the law, now codified as Texas Penal Code Section 21.19, is written broadly and violates the First Amendment because it specifically bans the “unlawful electronic transmission of sexually explicit visual material.” Something “sexually explicit” can be protected free speech.
What is even more bizarre, and what Don pointed out, is that the statute could even apply to the “transmission” of everyday R-rated movies, as they depict “persons engaging in sexual conduct”, to include “simulated sexual intercourse.”
As Don told News 4, “Every movie that you’ve ever seen – it may have sexual connotations. It may even be nudity in an R-rated movie. That’s artistic. That’s protected under the First Amendment. So you can’t ban it. Just like they can’t ban your R-rated movies, they can’t ban your R-rated texts.”
It is also interesting to note that the statute could be fixed, if the legislature included words about “obscenity.” According to Don, “The statue doesn’t talk about obscenity. It’s overbroad so it doesn’t say it’s a crime to send obscene picture through a text. It says it’s a crime to send anything having to do with sex,” Flanary says. “This is basic first year law school stuff we’re talking about. These laws were worked out in the ‘70s. Forty years later, the Texas legislature is writing laws that got struck down in the ‘70s So why in 2019 we’re dealing with it again? The only explanation is that our lawmakers didn’t pay attention in law school or maybe didn’t go to law school.”
While Irene noted that supporters view the law as a way to deter harassment, it is curious to consider that the penalty for violating the new statute is merely punishable by a fine of up to $500, just like a speeding ticket.