Somewhere, Mark Bennett must be smiling after the Fourth Court of Appeals declared Texas' "improper photography" law unconstitutional. Now the Court of Criminal Appeals will be asked to resolve differing opinions among Texas appellate courts, reported KSAT out of San Antonio (Aug. 30):The Fourth Court of Appeals declared the Texas Improper Photography Statute unconstitutional on Friday.District attorneys say Section 21.15 of the Penal Code, known as the Improper Photography statute, makes it a state jail felony to visually record or photograph another person without their consent to arouse or gratify the sexual desire of another person."I was very surprised this has proven to be an important statue in what I could call the digital age this is the kind of statue that prevents someone from photographing under a woman’s skirt,” said First Assistant District Criminal Attorney Clifford Herberg Jr.The defendant in the case was arrested for taking pictures of children in their swimsuits at Sea World. He filed a pretrial habeas corpus writ challenging the constitutionality of the statute. Thompson argues innocent photographers run the risk of being charged with violating the statute because the government is attempting to regulate thought, a freedom protected by the First Amendment," said the appellate ruling. The court found that the "location identifier" in the statute — "at a location that is not a bathroom or private dressing room — is so broad the statute seems to criminalize conduct in areas where individuals have no expectation of privacy," including public spaces like an amusement park.See the Fourth Court's opinion (pdf).
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