On September 17, the Texas Court of Criminal Appeals ruled favorably for the firm’s client, The Reporters Committee for Freedom of the Press, on a First Amendment issue. Serving as local counsel, partner Cam Barker worked with First Amendment scholar Eugene Volokh in filing an amicus brief for the Committee, expressing its concern that Texas’s “improper photography” statute is an overbroad and chilling restriction on expressive conduct by reporters and photojournalists.
By an 8-1 vote, the Court of Criminal Appeals agreed and affirmed the lower court’s facial invalidation of the statute. The Court held that both photographs themselves and the act of photography are inherently expressive because of their communicative purpose, and that the statute’s subjective-intent element does not eliminate the First Amendment chilling concerns. The Court then held that the statute’s requirement of lack of “consent” does not save it because the law defines the required “consent” to mean an actual agreement, not implied consent from simply appearing in a public place, a broad interpretation of consent that could have unintended consequences when applied in other contexts, such as consent to government surveillance. The Court lastly found that the statute’s restriction was content-based and thus required strict scrutiny, which it could not survive. This is an important result for the Reporters Committee in protecting the right to take photographs in public.