The Volokh Conspiracy

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Free Speech

Texas Ban on "Transmitting" Nude Photos Without Request or Consent: Does It Apply Just to Posting Them Online?

It looks like it was intended to cover unwanted sexual images sent to a particular person, but its text seems broad enough to potentially cover even posting things on your own site.


Texas Penal Code § 21.19(b) ("Unlawful electronic transmission of sexually explicit visual material") makes it a crime to

knowingly transmit[] by electronic means visual material that:
(1)  depicts:
(A)  any person engaging in sexual conduct or with the person's intimate parts exposed; or
(B)  covered genitals of a male person that are in a discernibly turgid state; and
(2)  is not sent at the request of or with the express consent of the recipient.

"Intimate parts" is defined to mean "the naked genitals, pubic area, anus, buttocks, or female nipple of a person." "Sexual conduct" is defined to mean "sexual contact, actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse." And "visual material" is defined to mean, in relevant part,

(A)  any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide;  or
(B)  any disk, diskette, or other physical medium that allows an image to be displayed on a computer or other video screen and any image transmitted to a computer or other video screen by telephone line, cable, satellite transmission, or other method.

I think the statute was intended to cover e-mail, direct messages, and similar one-to-one transmission (or perhaps posting on another person's social media page). On the other hand, if "transmit" is read to cover electronic transmissions generally, then the statute would apparently forbid even public posting of, say, a photograph depicting a female nipple or a naked butt (whether "pornographic," "artistic," or whatever else) on one's own page.

That, I think, would make the statute unconstitutionally overbroad; given cases such as ACLU v. Reno (1997), which struck down the Communications Decency Act's prohibition on posting of "indecent" material, and Erznoznik v. City of Jacksonville (1975), which held that depictions of nudity couldn't be forbidden even on drive-in movie theater screens that are visible from public streets.

It would be good, I think, for the statute to be interpreted as excluding such public posting, whether on the theory that "transmit" shouldn't cover such posting (though posting something on your own website is surely transmission), or on the theory that the reference to "the recipient" must limit the statute to distribution to a specific known person. But I couldn't find any such limiting constructions in other Texas statutes or cases, so query how courts would end up interpreting this.