Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Sep 19, 2014

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This week the Texas Court of Criminal Appeal rejected a state law prohibiting indecent photography, Justice Ginsburg pumped the brakes on gay marriage’s rush to the Supreme Court, and the Air Force backs off its “so help me God” requirement in the face of legal challenge

Texas Appeals Court Strikes Down Improper Photography Law

Texas’ highest criminal court struck down the state’s “improper photography” law citing First Amendment concerns created by the statute’s broad prohibition on public photography.  In Ex parte Thompson, the Texas Court of Criminal Appeals dismissed as unconstitutional the State’s law making it an offense to: record a visual image of another at a location that is not private without the other person’s consent AND with intent to arouse or gratify the sexual desire of any person.  Once challenged, Texas’ law against improper photographs fell well short of satisfying the First Amendment requirements for regulations that prohibit communication.

The Court’s reasoning followed a logical sequence that provided a series of arguments to establish that taking pictures is constitutionally protected and the Texas legislature’s attempt to ban improper photography violated free speech rights.  The argument is as follows:

  1. Photography is constitutionally protected under the First Amendment because it is a creative expression of ideas.  Regulating the medium of photography “inevitably affects communication itself,” and thus is covered by the First Amendment.
  2. The intent to “arose or gratify the sexual desire of any person” does not erode First Amendment protection.  Citing a SCOTUS ruling, the Court wrote, “Banning otherwise protected expression on the basis that it produces sexual arousal or gratification is the regulation of protected thought, and such a regulation is outside the government’s power.”
  3. Texas’ officials’ attempts to justify the ban because improper photography is a violation of privacy also failed because the law covered any public place – not just private homes or bathrooms.
  4. Because sexual or gratifying speech is protected by the First Amendment, bans against it in public are content based and subject to a heightened level of legal review.
  5. Texas’ law failed the high standards of legal review largely because it was overbroad in what type of behavior it regulated.  The Court found an “alarming breadth” of potentially impermissible behaviors covered by the Texas statute, and rejected the State’s attempt to regulate public photographs – even when the picture is taken with perverted intent.

The Texas improper photography case presents another First Amendment ruling in which the judiciary reinforces the point that free speech covers all speech, and the right is most important when defending socially abhorrent or perverted behavior.  Although taking photographs of subjects unawares for sexual gratification is worthy of social condemnation, the practice is protected by the First Amendment.

Justice Ginsburg Talks Gay Marriage and the Supreme Court

Only days after the Supreme Court announced that it would talk about gay marriage in a private session later this month, Justice Ruth Bader Ginsburg dispelled the notion that SCOTUS is primed to settle the issue once and for all.  Although Ginsburg is a sure-bet to vote against gay marriage bans, the venerated Justice indicated there is little urgency for the Supreme Court to get involved as long as the lower federal courts continue to agree that gay marriage is protected by the constitution – even if the precise legal reasoning is not consistent across decisions.

Justice Ginsburg, speaking at the University of Minnesota Law School, also noted that the Supremes will be keeping a close eye on the upcoming 6th Circuit decision that will decide the fate of gay marriage bans in Kentucky, Michigan, Ohio, and Tennessee.  Legal experts have indicated that the pending decision is uncertain, and could become the first federal ruling to split from other circuits and come out in favor of gay marriage bans – creating the division that would require SCOTUS involvement.

If the 6th Circuit holds serve, however, and rejects same-sex marriage bans as other courts have done, Justice Ginsburg said the Supreme Court could decline to hear the case in the upcoming term.  Should the Court decide to pass again, bans that have been overturned may continue to be enforced in some states because the issue is not final. 

Air Force Retreats from So Help Me God Requirement

Last week I blogged about the Air Force refusing reenlistment from an airmen who declined to swear “so help me God” when committing to the service.  After consultation with the Defense Department’s general counsel office, and facing the threat of legal action, the Air Force issued a statement this week that softened its position on the “so help me God” requirement.  In explaining the change of course, Secretary of the Air Force Deborah Lee James said, “We take any instance in which Airmen report concerns regarding religious freedom seriously. We are making the appropriate adjustments to ensure our Airmen’s rights are protected.”

Under the new policy, airmen will no longer be required to swear “so help me God” when pledging their intent to serve in the Air Force.