The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
No Injunction Against Prosecution for Taking Photo of Transgender Politician Washing Hands in Women's Restroom
So holds a Fifth Circuit panel, over a dissent. Note that part of the majority's rationale is that the photo would only violate the statute if the prosecution can show that defendant intended to invade privacy in a way "highly offensive to a reasonable person of ordinary sensibilities."
From Fifth Circuit Judge Priscilla Richman, joined by Judge Irma Ramirez, in today's Evans v. Garza [UPDATE: link fixed]:
During a debate by lawmakers at the Texas Capitol in 2023, Michelle Evans tweeted a photograph of a transgender (biologically male) politician washing their hands in the women's restroom. Evans surrendered her cell phone to police after she learned the Travis County District Attorney, José Garza, was investigating whether her tweet violated Texas Penal Code § 21.15(b)….
Evans sued, seeking a preliminary injunction against any such prosecution, but the Fifth Circuit panel said no. It concluded that the relevant provision, § 21.15(b)(2)—"A person commits an offense if, without the other person's consent and with intent to invade the privacy of the other person, the person … photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another person in a place in which a person has a reasonable expectation of privacy"—wasn't likely to be unconstitutionally overbroad:
Evans argues that the statute is overbroad, but "[t]he overbreadth doctrine is 'strong medicine' that is used 'sparingly and only as a last resort.'" Evans must "demonstrate from the text of [the statute] and from actual fact that a substantial number of instances exist in which the Law cannot be applied constitutionally."
By contrast, circumstances in which a prosecution under that subsection would likely be constitutional readily come to mind. For example, it is highly unlikely, to say the least, that there is a First Amendment right to distribute, without their consent, images of a person's genitalia or other anatomy (whether they be an adult, infant, pre-teen, teen) while utilizing bathroom facilities.
It is also far from clear that there is a First Amendment right to capture and distribute an image, without their permission, of a fully clothed adult while in a public bathroom. Think of a celebrity, for example, who ducks into a women's bathroom to avoid paparazzi or overzealous fans. What if the celebrity were in the restroom simply to relieve and refresh themselves? Is there a constitutional right to follow and photograph that person in a restroom when they are seeking privacy? Is any citizen, celebrity or not, fair game for photos or videos while in a restroom? Does the fact that a person is an elected official change that equation? The law is certainly not clear that politicians may be pursued, even in a public restroom, for the purpose of obtaining and publicizing their image.
And the court also held that the law wasn't unconstitutional as applied to Evans' behavior:
Evans maintains that when the subject of the photograph is "not in a private area of the bathroom and knows they are subject to public view," specifically, when they are "fully clothed, at a sink, washing their hands," others in the restroom have a First Amendment right to photograph the subject, and Evans has a First Amendment right to distribute that photograph. But we cannot say it is likely that the statute, as it existed at the time of the incident, is unconstitutional as applied to Evans….
[T]he statute protects compelling government interests because "the rights to personal seclusion, bodily integrity, and sexual privacy are substantial rights; and the state has a compelling interest in protecting those rights from highly offensive or 'intolerable' attack." [And t]he statute's heightened intent requirement ensures that the statute is narrowly tailored to achieve that compelling interest. A defendant only violates the statute if they act "with intent to invade the privacy of [an]other person" when photographing or videotaping another person, or promoting such recorded content of that other person.
[A past Texas appellate decision] "construed the intent-to-invade-privacy element" such that "the statutory restriction is limited to 'intolerable' invasions because it reaches only photographs and transmissions that either in the manner of their creation or their subject matter would be considered highly offensive to a reasonable person of ordinary sensibilities." For Evans to be convicted, then, the prosecution would have to prove that she acted with this culpable mental state—a high bar that will prevent conviction when no subject matter or manner of creation "highly offensive to a reasonable person of ordinary sensibilities" is involved….
Judge Andrew Oldham dissented:
Michelle Evans retweeted a picture of a fully clothed man washing his hands in the women's bathroom at the Texas State Capitol. For that purported sin, Travis County District Attorney Jose Garza opened a criminal investigation and threatened to bring the awesome weight of the County's prosecutorial machinery down on Ms. Evans….
The dissent reasoned that the statute "cannot be constitutionally applied to Evans," because in this case, "the statute unconstitutionally suppresses political speech":
The subject of the photograph was a transgender activist and candidate for public office in Texas. Both Evans and the candidate were at the Capitol to attend a debate about S.B. 14—a bill designed to protect children from experimental medical procedures. In the photograph, the man is merely washing his hands at the sink, fully clothed and in full view of anyone inside the restroom.
In the context of this public policy debate, the retweet of a photo depicting an activist and candidate using an opposite-sex restroom is "speech concerning public affairs," which "occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection." And as applied to Evans, § 21.15(b) criminalizes that core political speech, on the flimsy pretense of protecting privacy interests that are irrelevant where (as here) nothing remotely private is divulged in the photograph.
In fact, the entirety of the incident—from the activist's presence in the opposite-sex bathroom, to the picture, to Evans's retweet of it—is a matter of public concern arising from a public debate about public policy in a public forum for lawmaking. Everything about it is the opposite of private. So as applied to the retweeted photograph, the statute fails to employ "the least restrictive means of achieving a compelling state interest."
In response, the majority reasons that the "statute's heightened intent requirement ensures that the statute is narrowly tailored to achieve [a] compelling interest" in privacy. The highest authority on Texas criminal law, the Texas Court of Criminal Appeals, has not yet interpreted the intent requirement. So, we do not know what the intent requirement will be. And that uncertainty exacerbates the constitutional problem by chilling speech by unsure would-be speakers.
But insofar as we have to guess, it should be obvious that DA Garza will not be able to prove that Evans had the "intent to invade the privacy of the other person." It should be equally obvious that retweeting the image does not represent an "intolerable invasion" of the transgender activist's privacy. All of us use sinks in public buildings all the time—in airports, restaurants, sports stadiums, and other public accommodations. In Austin, the ever-progressive capital of Texas, the sinks in some restaurants and bars are not even in the bathrooms—they're in public, mixed-sex areas for all the world to see.
Is there a person on earth who thinks their conduct at a public sink enjoys privacy protections? If a woman confesses to her friend at the public sink that she has a gambling problem or wore blackface in college, is that conversation somehow privacy-protected? If a man discloses that he's carrying a handgun in violation of a bar's concealed-carry prohibition while washing his hands, is that act protected? What if a woman pulls marijuana from her purse and puts it on the sink?
What other privacy interest could a person have when standing fully clothed at a public sink that they do not have when standing fully clothed in other parts of the public building? Does a transgender activist have some special privacy interest in using a sink that you and I do not have? If so, what legal basis is there for affording special super-privacy protections to transgender activists?
Thus, there is no way that DA Garza could prove that Evans had some specific intent to commit an intolerable invasion of anyone's privacy in retweeting a picture as part of a public policy debate. Still, an acquittal would do nothing to remedy or compensate for the significant chilling of speech Evans has suffered. Evans is therefore likely to succeed on the merits of her as-applied challenge….
And the dissent also argued that "Evans also may have a powerful overbreadth challenge," and that the case should have been remanded for further factfinding about "[whether] a substantial number of § 21.15(b)(2)'s applications [will] concern photos like the one Evans retweeted, where the person depicted is fully dressed and merely washing his hands" or "where the person depicted is a public figure engaged in political advocacy in the People's House." And the dissent closed with this:
Free speech is a fragile thing. While prior generations observed despotic speech codes across an Iron Curtain, the modern free thinker needn't look so far or so far back. Take the United Kingdom today, for example. By one count, the birthplace of Bentham and Mill now arrests thirty citizens a day over offensive social media posts. And lest Uncle Sam look askance at John Bull, more than a few are clamoring for similar restrictions on this side of the pond, too. See S.B. 771, 2025 Cal. Assemb. (Cal. 2025) (providing for civil penalties "up to $1 million" for hosting so-called hate speech).
With free speech in a tenuous balance, courts do the agora no good by playing fast and loose with Fed Courts doctrines. The least we could do is remand Evans's case for the district court to weigh the preliminary injunction factors in the first instance….
Anthony J. Nelson and Amy Stoeckl Ybarra (Travis County Attorney's Office) represent the State.
