Fourth Court of Appeals
San Antonio, Texas
OPINION
Nos. 04-19-00438-CR & 04-19-00450-CR
EX PARTE Robert METZGER
From the 216th Judicial District Court, Kerr County, Texas
Trial Court No. A1920
and
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 7000
Honorable N. Keith Williams, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: August 26, 2020
AFFIRMED
Appellant Robert Metzger was indicted in both Kerr and Gillespie Counties for multiple
counts of violating sections 21.15(b)(1) and (b)(2) of the Texas Penal Code, the “Invasive Visual
Recording” statute. Both indictments were filed in the 216th Judicial District Court, and the cases
proceeded together. Metzger filed pretrial applications for writs of habeas corpus and motions to
quash the indictments, alleging the provisions of section 21.15 under which he was charged are
facially overbroad in violation of the First Amendment to the United States Constitution. The trial
court granted the writs, held a non-evidentiary hearing on the cases, and denied relief. Metzger
appeals the denial of relief. We affirm the trial court’s orders.
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BACKGROUND
The Texas Legislature enacted the current version of section 21.15 in 2015, after the Texas
Court of Criminal Appeals declared the previous version of section 21.15(b)(1) unconstitutional.
See Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2015). 1 Sections 21.15(b)(1) and (b)(2)
now provide:
(b) 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:
(1) photographs or by videotape or other electronic means records,
broadcasts, or transmits a visual image of an intimate area of another
person if the other person has a reasonable expectation that the
intimate area is not subject to public view;
(2) photographs or by videotape or other electronic means records,
broadcasts, or transmits a visual image of another in a bathroom or
changing room;
TEX. PENAL CODE § 21.15(b)(1)-(2). Section 21.15 defines “intimate area” as “the naked or
clothed genitals, pubic area, anus, buttocks, or female breast of a person” and defines “changing
room” as “a room or portioned area provided for or primarily used for the changing of clothing
and includes dressing rooms, locker rooms, and swimwear changing areas.” Id. § 21.15(a)(2), (3).
An offense under section 21.15 is a state jail felony, punishable by confinement in a state jail for
1
The version of section 21.15(b)(1) addressed by the Texas Court of Criminal Appeals in Thompson, provided:
(b) a person commits an offense if the person:
(1) photographs or by videotape or other electronic means records, broadcasts, or
transmits a visual image of another at a location that is not a bathroom or private dressing
room:
(A) without the other person’s consent; and
(B) with intent to arouse or gratify the sexual desire of any person.
Act of May 17, 2001, 77th Leg., R.S., ch. 458, § 1, 2001 Tex. Gen. Laws 893, 893, amended by Act of May 28, 2003,
78th Leg., R.S., ch. 500, § 1, 2003 Tex. Gen Laws 1771, 1771, amended by Act of May 18, 2007, 80th Leg., R.S., ch.
306, § 1, 2007 Tex. Gen. Laws 582, 582 (amended 2015) (current version at TEX. PENAL CODE § 21.15(b)(1)). The
Court of Criminal Appeals held section 21.15(b)(1) violated the First Amendment because it was not narrowly tailored
to address compelling privacy interests and was substantially overbroad because it applied broadly to any
nonconsensual photography or visual recording, including that which was purely public, so long as the actor had the
requisite sexual intent. 442 S.W.3d at 348-51.
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not less than 180 days and not more than two years and a fine of up to $10,000. TEX. PENAL CODE
§§ 12.35, 21.15(c).
The indictments charge that Metzger, with the intent to invade the privacy of N.M. and
without N.M.’s consent:
• transmitted by electronic means a visual image of an intimate area of N.M. and N.M.
had reasonable expectation of privacy that the intimate area was not subject to public
view, in violation of section 21.15(b)(1); (four counts);
• photographed an intimate area of N.M. and N.M. had reasonable expectation the
intimate area was not subject to public view, in violation of 21.15(b)(1); (one count);
and
• photographed N.M. in a bathroom or changing room, in violation of section
21.15(b)(2); (2 counts).
Metzger filed pretrial applications for writs of habeas corpus in each case, seeking to dismiss the
indictments on the ground the provisions of section 21.15(b)(1) and (2) under which he was
charged violate the First Amendment and are unconstitutionally overbroad. After the trial court
denied relief, Metzger filed these appeals. In three issues, he contends the restriction on
transmission of images in section 21.15(b)(1) and the restriction on photography in sections
21.15(b)(1) and (b)(2) are unconstitutionally overbroad restrictions on speech that facially violate
the First Amendment to the United States Constitution.
STANDARD OF REVIEW AND FIRST AMENDMENT REVIEW
A defendant may file a pretrial habeas challenge to the facial constitutionality of a statute
that defines the offense charged. Ex parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). A
party may bring a facial challenge to a statute pursuant to the First Amendment doctrine of
substantial overbreadth without a showing the statute is unconstitutionally applied to him.
Massachusetts v. Oakes, 491 U.S. 576, 581 (1989); State v. Johnson, 475 S.W.3d 860, 864-65
(Tex. Crim. App. 2015) (stating that “under the First Amendment’s ‘overbreadth’ doctrine, a law
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may be declared unconstitutional on its face, even if it may have some legitimate application and
even if the parties before the court were not engaged in activity protected by the First
Amendment”). “The doctrine is predicated on the danger that an overly broad statute, if left in
place, may cause persons whose expression is constitutionally protected to refrain from exercising
their rights for fear of criminal sanctions.” Oakes, 491 U.S. at 581. We review de novo the trial
court’s determination of whether the statute is facially unconstitutional. Ex parte Lo, 424 S.W.3d
10, 14 (Tex. Crim. App. 2010).
“[A]s a general matter, the First Amendment means that government has no power to
restrict expression because of its message, its ideas, its subject matter, or its content.” U.S. v.
Stevens, 559 U.S. 460, 468 (2010) (quoting Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564,
573 (2002)). However, there are some “well-defined and narrowly limited classes of speech” that
have been recognized as falling outside the protection of the First Amendment. Stevens, 559 U.S.
at 468-72. These include child pornography, obscenity, defamation, fighting words, incitement,
true threats of violence, fraud, and speech integral to criminal conduct. See id. Speech not within
one of these narrowly defined categories is protected under the First Amendment, even if a
legislature “concludes certain speech is too harmful to be tolerated.” Brown v. Entm’t Merchants
Ass’n, 564 U.S. 786, 791 (2011).
A statute that seeks to restrict or punish protected speech based on its content is
presumptively invalid. Stevens, 559 U.S. at 468; Lo, 424 S.W.3d at 15. The State bears the burden
to rebut that presumption by demonstrating that the statute passes strict scrutiny. Brown, 564 U.S.
at 799; Stevens, 559 U.S. at 468. To pass strict scrutiny, the State must demonstrate the statute is
justified by a compelling state interest and is narrowly tailored, using the least restrictive means
necessary to achieve its asserted interest. Brown, 564 U.S. at 799; Thompson, 442 S.W.3d at 344;
see U.S. v. Alvarez, 567 U.S. 709, 725-26 (2012) (plurality op.) (“There must be a direct causal
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link between the restriction imposed and the injury to be prevented”). If the statute still reaches a
“real” and “substantial” amount of protected speech, “judged in relation to the statute’s plainly
legitimate sweep,” the statute is unconstitutionally overbroad. Stevens, 559 U.S. at 473; Lo, 424
S.W.3d at 10.
DISCUSSION
A. Section 21.15 regulates protected speech
Metzger challenges parts of section 21.15 that impose criminal penalties on photography
and transmission of visual images. As a general matter, both the creation and dissemination of
visual images are protected expression under the First Amendment. See Brown, 564 U.S. 786
(holding law that imposed civil fines for the sale or rental of violent video games to minors
impermissibly restricted protected speech); Stevens, 559 U.S. 460 (holding statute criminalizing
the knowing creation, selling, or possession of certain depictions of animal cruelty with intent to
place it in commerce for commercial gain punished protected speech); Ashcroft v. Free Speech
Coalition, 535 U.S. 234 (2002) (holding statutory prohibition on possessing or distributing “virtual
child pornography,” non-obscene sexually explicit images that appear to depict minors but which
were produced using youthful adults or computer imaging technology, violated First Amendment);
Thompson, 442 S.W.3d at 336-37 (holding that photographs and visual recordings, as well as the
purposeful creation of them, are inherently expressive and are protected by the First Amendment).
Although some visual images restricted by section 21.15 are unprotected because they are obscene
or constitute child pornography, the reach of section 21.15 is indisputably far broader and reaches
photographs and visual images not within any of the recognized categories of unprotected speech.
The State argues the expressive activity regulated by section 21.15 “is removed from the
ambit of First Amendment protection” because the statute only restricts photography and visual
recordings intended to invade the “substantial privacy interests” of another “in an essentially
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intolerable manner.” Alternatively, the State asserts that speech intended to invade substantial
privacy rights should be categorically unprotected by the First Amendment. We disagree with both
propositions.
The State’s argument that the photography and transmissions restricted by section 21.15
are not protected by the First Amendment appears to be based upon a line of United States Supreme
Court cases upholding restrictions on protected speech under the “captive audience doctrine.” The
doctrine has been applied “only sparingly to protect unwilling listeners from protected speech”
and then, only upon “a showing that substantial privacy interests are being invaded in an essentially
intolerable manner.” Snyder v. Phelps, 562 U.S. 443, 459 (2011) (quoting Cohen v. California,
403 U.S. 15, 21 (1971)); see, e.g., Frisby v. Schultz, 487 U.S. 474, 489 (1988) (holding ordinance
that prohibited picketing focused on and taking place at a particular residence was content neutral,
served State’s interest in protecting tranquility and privacy of the home, and survived intermediate
scrutiny); Rowan v. U.S. Post Office Dep’t, 397 U.S. 728 (1970) (upholding statute that allowed
householders to request postal service remove them from certain mass mailing lists, and
concluding householder’s right not to be captive to unwanted and objectionable speech in his own
home prevailed over mass mailer’s First Amendment right to communicate). These cases do not
support that there is a categorical exception for speech that “invades the substantial privacy
interests of another in an essentially intolerable manner;” rather, they hold that in limited
circumstances, the State’s interest in protecting specific individual privacy interests is sufficiently
compelling that narrow restrictions on First Amendment freedoms may be justified.
The captive audience cases did not create a categorical exception to First Amendment
protection, and the Supreme Court has not otherwise held that speech or expressive activity that
“invades substantial privacy interests of another in an essentially intolerable manner” is “removed
from the ambit of First Amendment protection.” To the contrary, the Court recognizes that both
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freedom of speech under the First Amendment and individual privacy rights are “plainly rooted in
the traditions and significant concerns of our society.” The Fla. Star v. B.J.F., 491 U.S. 524, 533
(1989). Because of “the sensitivity and significance of the interests presented in clashes between
First Amendment and privacy rights,” the Supreme Court has consistently relied “on limited
principles that sweep no more broadly than the appropriate context of” the case before it. Id. Thus,
in Florida Star, the Court held the First Amendment precluded civil liability against a newspaper
for publishing the name of a sexual assault victim, even though the publication violated both the
paper’s own policy and state law, but the Court declined “to hold broadly that truthful publication
may never be punished consistent with the First Amendment.” Id. at 532.
In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Supreme Court again addressed the
“clash” between the First Amendment and privacy rights in a challenge to the federal wiretapping
law, which contained civil and criminal penalties for intentionally disclosing the contents of an
illegally intercepted communication. The defendants were sued after they intentionally and
repeatedly disclosed in a radio broadcast the contents of an illegally intercepted cell phone
conversation. The defendants did not participate in the illegal interception, but they knew or had
reason to know the interception was unlawful. 532 U.S. 517-18. The Court held the information
disclosed concerned a matter of public interest and that neither the state’s interest in protecting the
privacy of its citizens nor its interest in deterring the unlawful interception of communications
justified punishing the truthful publication of the lawfully obtained information. Id. at 529-35.
Although the Court stated that “[a]s a general matter, state action to punish the publication of
truthful information seldom can satisfy constitutional standards,” it again “refused to answer
categorically whether truthful publication may ever be punished consistent with the First
Amendment” because of “the sensitivity and significance of the interests presented in clashes
between First Amendment and privacy rights.” Id. at 527, 529 (internal quotation marks omitted).
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The Court also declined to decide whether the state’s interest in protecting privacy would be strong
enough to justify applying the statute if the disclosure concerned purely private information. Id. at
533.
In Snyder v. Phelps, a jury found the defendants intentionally invaded the plaintiffs’
privacy by intruding upon their seclusion and inflicted emotional distress by picketing at plaintiffs’
son’s funeral. 562 U.S. 443, 450 (2011). The jury awarded $2.9 million in compensatory damages
and $8 million in punitive damages for speech that was “so outrageous in character, and so extreme
in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.” Id. at 465 (Alito, J., dissenting) (internal quotation
marks omitted). Even though a jury had found the speech and expressive activity had been an
intentional and highly offensive invasion of privacy, the Court noted it did not fall within one of
the categorical exclusions from First Amendment protection. Id. at 450 n.3. Concluding the
defendants were picketing in a place they had a right to be and about a matter of public concern,
the Court held the First Amendment barred the recovery for intentional invasion of privacy and
intentional infliction of emotional distress. 562 U.S. at 456-60. The Court recognized the First
Amendment protection may be “less rigorous” in a case where the speech concerned purely private
matters. 2 Id. at 452. However, the Court has not decided the boundaries of First Amendment
protection of purely private truthful speech in the context of claims of invasion of privacy and
intentional infliction of emotional distress. See id. at 461-62 (Breyer, J., concurring); id. at 464-65
(Alito, J., dissenting).
2
Although analysis of some restrictions on purely private speech may be less rigorous, the Court “in no sense
suggest[s] that speech on private matters falls into one of the narrow and well-defined classes of expression which
carries so little social value, such as obscenity, that the State can prohibit and punish such expression by all persons
in its jurisdiction.” Connick v. Myers, 461 U.S. 138, 147 (1983) (discussing restriction of public employee’s speech
regarding matters not of public concern).
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The United States Supreme Court has never held that truthful expression that invades
privacy “in an intolerable manner” categorically loses its First Amendment protection or that intent
to invade privacy converts protected expression into unprotected conduct. We therefore reject the
State’s argument that by including an element of intent to invade privacy in section 21.15 and by
purportedly limiting the statute’s application to “highly offensive” and “intolerable” invasions of
“substantial” privacy interests, the legislature removed the creation of the visual images proscribed
by the statute “from the ambit of” the First Amendment. See Ex parte Hamilton, 599 S.W.3d 312,
317 (Tex. App.—Houston [14th Dist.] 2020, pet. filed) (rejecting State’s argument that intent-to-
invade-privacy element in section 21.15(b) resulted in statute that regulates conduct that is not
subject to First Amendment protection or scrutiny).
We also decline the State’s invitation to recognize a new category of unprotected speech.
The “guarantee of free speech does not extend only to categories of speech that survive an ad hoc
balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by
the American people that the benefits of its restrictions on the Government outweigh the costs.
Our Constitution forecloses any attempt to revise that judgment simply on the basis that some
speech is not worth it.” Stevens, 559 U.S. at 470. “[N]ew categories of unprotected speech may
not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated.”
Brown, 564 U.S. at 791. And this court lacks “freewheeling authority to declare new categories of
speech outside the scope of the First Amendment.” Stevens, 559 U.S. at 472; see also Ex parte
Thompson, 442 S.W.3d at 344 (noting that the categories of speech that are exempt from First
Amendment protection are limited and heeding Supreme Court’s admonition against creation of
new categories); State v. Van Buren, 214 A.3d 791, 802 (Vt. 2019) (refusing “to identify a new
categorical exclusion from the full protections of the First Amendment” for “extreme invasions of
privacy” such as nonconsensual pornography).
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B. Section 21.15 is a content-based restriction
Because section 21.15 regulates expressive conduct protected by the First Amendment, we
must next determine whether the statutory restrictions are content-based. A law is content-based
if it “targets speech based on its communicative content.” Reed v. Town of Gilbert, Ariz., 576 U.S.
155, 163 (2015). A law is content-based if the “regulation of speech ‘on its face’ draws distinctions
based on the message a speaker conveys. Some facial distinctions based on a message are obvious,
defining regulated speech by particular subject matter, and others are more subtle, defining
regulated speech by its function or purpose. Both are distinctions drawn based on the message a
speaker conveys, and, therefore, are subject to strict scrutiny.” Id. at 163-64 (internal citation
omitted). Also subject to strict scrutiny are regulations that, although facially content neutral,
cannot be justified without reference to the content of the speech.” Id. at 164. “If it is necessary to
look at the content of the speech in question to decide if the speaker violated the law, the regulation
is content-based.” Lo, 424 S.W.3d at 15 n.12.
A person who photographs or transmits a visual image without consent and with the intent
to invade privacy violates section 21.15(b)(1) only if the image is of another person’s “intimate
area,” defined as “naked or clothed genitals, pubic area, anus, buttocks, or female breast.” TEX.
PENAL CODE § 21.15(a)(1), (2), (b)(1). It does not apply to nonconsensual images that include only
feet, hands, necks, or faces, even if the person had a reasonable expectation they were not subject
to public view (i.e., the subject of the image was inside their home). Limiting the prohibition in
section 21.15(b)(1) to only images that include “intimate areas” is a content-based restriction, even
if the intent element of the offense is not considered. See Hamilton, 599 S.W.3d at 317-18 (holding
the sexually-related nature and subject matter of the images proscribed by section 21.15(b)(1)
renders the statute content-based).
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Subsection (b)(2) prohibits only the creation of certain visual images of “another” in a
changing room or bathroom. TEX. PENAL CODE § 21.15(b)(2). The State assumes, but does not
concede, the prohibition is content-based. Metzger argues it is content-based because it only
applies to visual images of people, but not to images of a cat or a flower, and to determine whether
the statute is violated, one must look at the content of the speech. See Lo, 424 S.W.3d at 15 n.12.
However, in its review of the previous version of section 21.15(b)(1), the Court of Criminal
Appeals stated the “inquiry … is not that simple.” Thompson, 442 S.W.3d at 346. Former section
21.15(b)(1) prohibited the nonconsensual creation of a “visual image of another at a location that
is not a bathroom or private dressing room” if done “with intent to arouse or gratify the sexual
desire of any person.” 3 The Court of Criminal Appeals stated the discrimination in the statute was
not between people and animals or inanimate objects; rather the statute distinguished permissible
photography from prohibited photography “on the basis of the non-consensual nature of the
defendant’s activity, and that basis, by itself, is a content-neutral distinction.” Id. at 346-47. The
court nevertheless concluded the section was content-based because it punished only “a subset of
non-consensual image and video producing activity—that which is done with the intent to arouse
or gratify sexual desire.” Id. at 347-48. The court concluded the culpable mental state caused the
statute to be content-based. Id. In reaching its conclusion, the court relied on several cases,
including Texas v. Johnson, 491 U.S. 397, 411-12 (1989). Johnson held the Texas flag-burning
statute was content-based because whether the law was violated depended on the communicative
impact of the expressive conduct; the statute only punished mistreatment of the flag that was done
with the intent to seriously offend other people. 491 U.S. 411-12 & n.7; see Thompson, 442 S.W.3d
at 347-48. We hold the culpable mental state in section 21.15(b)(2) likewise causes the statute to
3
See n. 1, supra.
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be content-based. That section does not punish all nonconsensual photography or video recording
activity in a bathroom or changing room, only that done with the intent to invade the other person’s
privacy. As discussed below, activity engaged in with the intent to invade another’s privacy is by
definition activity intended to be highly offensive to a reasonable person of ordinary sensibilities.
See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473-74 (Tex. 1995); Valenzuela v. Aquino, 853
S.W.2d 512, 513 (Tex. 1993). Under the reasoning of the courts in Johnson and Thompson, section
21.15(b) is content-based because whether the law has been violated depends on the
communicative impact of the expressive activity.
C. Strict scrutiny
Because section 21.15 is a content-based restriction on protected speech, it is subject to
strict scrutiny review. 4 Brown, 564 U.S. at 799; Thompson, 442 S.W.3d at 348. “Content-based
prohibitions, enforced by severe criminal penalties, have the constant potential to be a repressive
force in the lives and thoughts of a free people. To guard against that threat the Constitution
demands that content-based restrictions on speech be presumed invalid, and that the Government
bear the burden of showing their constitutionality.” Ashcroft v. ACLU, 542 U.S. at 660 (internal
citation omitted) (stating “[t]his is true even when Congress twice has attempted to find a
constitutional means to restrict, and punish, the speech in question,” and upholding injunction
against enforcement of statute that imposed criminal penalties for knowingly posting materials
harmful to minors). To satisfy strict scrutiny, content-based laws that regulate expression “are
presumptively unconstitutional and may be justified only if the government proves that they are
4
Several of our sister courts have held Penal Code sections 21.15(b)(1) and (b)(2), as amended in 2015, survive strict
scrutiny and are not unconstitutional. See Hamilton, 599 S.W.3d 312 (§ 21.15(b)(1)); Ex parte Nuñez, No. 11-18-
00156-CR, 2019 WL 2062699 (Tex. App.—Eastland May 9, 2019, pet. ref’d) (mem. op., not designated for
publication) (§ 21.15(b)(2)); Matter of D.Y., No. 02-16-00294-CV, 2017 WL 2178877 (Tex. App.—Fort Worth May
18, 2017, pet. denied) (mem. op.) (§ 21.15(b)(2)).
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narrowly tailored to serve compelling state interests.” Reed, 576 U.S. at 155. See, e.g., Williams-
Yulee v. Fla. Bar, 575 U.S. 433, 444 (2015) (plurality opinion) (upholding judicial canon that
prohibited personal solicitation of campaign funds; four justices concluded the canon survived
strict scrutiny because it was narrowly tailored to serve compelling state interest; a fifth justice
would reach the same result by applying intermediate scrutiny). If the State has a compelling
interest and has narrowly tailored its statute, the statute will be invalidated for overbreadth only if
the challenger can show the statute continues to reach a real and substantial amount of protected
speech, “judged in relation to its legitimate sweep.” New York v. Ferber, 458 U.S. 747, 769 (1982).
Before further analysis, we address Metzger’s assertion that the statute is inherently
unconstitutional and no further scrutiny is required. Metzger contends the statute restricts a real
and substantial amount of protected speech because the only unprotected speech within its scope
are obscene images and images of child pornography. He asserts the statute is therefore necessarily
unconstitutionally overbroad. He does not argue the State has failed to show a compelling interest
or that section 21.15 is not narrowly tailored, asserting such arguments are unnecessary. Instead,
he argues that because the vast majority of images within the scope of the statute are protected,
“the court does not consider whether there is a governmental interest in restricting the speech,”
“the inquiry ends,” and the “restriction is void.” We disagree. A content-based restriction on
expression is only presumptively invalid. See id. The State may “regulate the content of
constitutionally protected speech in order to promote a compelling interest if it chooses the least
restrictive means to further the articulated interest.” Sable Commc’ns of Cal., Inc. v. F.C.C., 492
U.S. 115, 126, (1989) (emphasis added). If the State meets its burden, the statute is
unconstitutionally overbroad only if it reaches far more protected speech than the State has a
compelling interest in restricting. We also disagree with Metzger that Stevens supports his position.
In Stevens, the Court concluded the criminal statute banning depictions of animal cruelty applied
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to far more protected expressive activity than that which the government asserted it had a
compelling interest in restricting (its allegedly “legitimate sweep”). 559 U.S. at 481. The Court
therefore held the statute was unconstitutionally overbroad without it needing to decide whether
the asserted state interest was sufficiently compelling to justify a more narrow statute. Id. at 482.
1. Statutory construction: What does the statute cover?
The first step in an overbreadth analysis is to construe the challenged statute; it is
impossible to determine whether a statute reaches too far without first knowing what the statute
covers. United States v. Williams, 553 U.S. 285, 292-93 (2008); Ex parte Perry, 483 S.W.3d 884,
902 (Tex. Crim. App. 2016). Section 21.15, in its entirety, provides:
(a) In this section:
(1) “Female breast” means any portion of the female breast below the top
of the areola.
(2) “Intimate area” means the naked or clothed genitals, pubic area, anus,
buttocks, or female breast of a person.
(3) “Changing room” means a room or portioned area provided for or
primarily used for the changing of clothing and includes dressing rooms,
locker rooms, and swimwear changing areas.
(4) “Promote” has the meaning assigned by Section 43.21 5.
(b) 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:
(1) photographs or by videotape or other electronic means records,
broadcasts, or transmits a visual image of an intimate area of another
person if the other person has a reasonable expectation that the intimate
area is not subject to public view;
(2) photographs or by videotape or other electronic means records,
broadcasts, or transmits a visual image of another in a bathroom or
changing room; or
5
Section 43.21 defines “promote” as “to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit,
publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to do the same.” TEX.
PENAL CODE § 43.21(a)(5).
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(3) knowing the character and content of the photograph, recording,
broadcast, or transmission, promotes a photograph, recording, broadcast,
or transmission described by Subdivision (1) or (2).
(c) An offense under this section is a state jail felony.
(d) If conduct that constitutes an offense under this section also constitutes an
offense under any other law, the actor may be prosecuted under this section or the
other law.
(e) For purposes of Subsection (b)(2), a sign or signs posted indicating that the
person is being photographed or that a visual image of the person is being recorded,
broadcast, or transmitted is not sufficient to establish the person’s consent under
that subdivision.
TEX. PENAL CODE § 21.15. In construing the Penal Code, “we give effect to the plain meaning of
its language unless the language is ambiguous or the plain meaning leads to absurd results that the
legislature could not have possibly intended.” Perry, 483 S.W.3d at 902. We consider the words
in context and construe them according to the rules of grammar and common usage unless a word
or phrase has acquired a technical or particular meaning, in which case we construe it accordingly.
TEX. GOV’T CODE § 311.011. When the meaning of the statutory language is not plain or leads to
absurd results, we may consider extratextual factors such as the circumstances under which the
statute was enacted, the legislative history, the common law, and former statutory provisions.
Perry, 483 S.W.3d at 903.
a. Photography and transmission under section 21.15(b)(1) and (b)(2)
Metzger challenges the constitutionality of the three means of violating section 21.15 with
which he was charged—photographing an intimate area in violation of subsection (b)(1),
transmitting a visual image of an intimate area of another person in violation of subsection (b)(1),
and photographing another in violation of subsection (b)(2). To properly analyze whether the
statute passes strict scrutiny, we must understand exactly what the statute proscribes.
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The prohibition on photographing a person is clear, plain, and unambiguous. What
constitutes “transmit[ting] a visual image” is less clear. The plain meeting of “transmit” is “[t]o
send or transfer (a thing) from one person or place to another.” Transmit, BLACK’S LAW
DICTIONARY (11th ed. 2019). Thus, it initially appears that the prohibitions in (b)(1) and (b)(2)
apply equally to a person who initially photographs or records a prohibited image and to any person
who, at some later time, “transmits” by electronically sharing or sending the image. However,
when we consider the statute as a whole and the legislative history, we conclude “transmit,” as
used in section 21.15(b)(1) and (b)(2) has a narrower meaning, and is limited to the original
creation of the visual image by means of an electronic transmission.
We reach this conclusion in part by examining the structure of the statute. Subsection (b)(3)
specifically targets the dissemination and sharing of previously created images by making it an
offense to “promote[] a photograph, recording, broadcast, or transmission described by
Subdivision (1) or (2).” TEX. PENAL CODE § 21.15(b)(3). To establish a violation of (b)(3), the
State must prove the additional element that the actor who promotes the material did so “knowing
the character and content of the photograph, recording, broadcast, or transmission.” Id. That is, to
prove a person committed the offense of promoting a previously created prohibited visual image,
the State must prove, at a minimum, that the actor has knowledge the image was created in a
bathroom or changing room or has knowledge the image is of another’s intimate area and of the
circumstances that gave rise to the other person’s reasonable expectation of privacy. See id. The
State is not required to so prove when charging under (b)(1) or (b)(2), presumably because the
person charged under those sections necessarily is aware of the nature of the image and the
circumstances in which the image was created. If the word “transmit” in (b)(1) and (b)(2) is
construed to mean it is an offense to electronically send or share a previously created visual image,
then subsection (b)(3) would be superfluous. The State could then prosecute actors who
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electronically share prohibited images under (b)(1) or (b)(2) without any showing the actor had
knowledge of the content and character or the visual image.
The legislative history of the statute also clarifies that “transmit” as used in subsections
(b)(1) and (b)(2) was intended to refer to a method of electronically creating a visual image, not to
subsequent electronic sharing or sending of the image. The 2003 version of section 21.15 made it
an offense to “photograph[] or by videotape or other electronic means visually record[] another”
in proscribed circumstances. Act of May 28, 2003, 78th Leg., R.S., ch. 500, § 1, 2003 Tex. Gen
Laws 1771, 1771 (amended 2007 & 2015). It also provided a person committed an offense if,
“knowing the character and content of the photograph or recording,” the person “promote[d]” a
prohibited photograph or visual recording. Id. The legislature made several changes to section
21.15 in 2007, one of which was to add “broadcast” and “transmit” to what are now subsections
(b)(1) and (b)(2). Act of May 18, 2007, 80th Leg., R.S., ch. 306, § 1, 2007 Tex. Gen. Laws 582,
582 (amended 2015). The background and purpose of this amendment, as stated in the bill analysis
for the House Criminal Jurisprudence Committee was:
Technology has become quite advanced in recent years, including consumer hand
held devices that are able to broadcast or transmit “live feeds” of an image without
actually recording the image. For example, cameras on mobile phones can be used
to “see” an event as it is happening (like peering through a set of binoculars) without
actually capturing the image as a photograph. Likewise other electronic devices
allow for “live feeds” of images to be broadcast and transmitted.
Current Texas law provides that it is a criminal offense to photograph, videotape,
or by electronic means visually record another person without their consent for the
purpose of sexual arousal or gratification of any person. It is also a criminal offense
to promote the character and content of such a photograph or visual recording.
While Texas law provides for such an offense, it is not an offense to broadcast or
transmit such an image via only a “live feed.”
House Bill 1804 corrects this loophole by also making it an offense to broadcast or
transmit the visual image of another person without their consent . . .
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House Crim. Jurisprudence Comm., Bill Analysis, Tex. H.B. 1804, 80th Leg., R.S. (2007). When
the legislature again amended the statute in 2015, after Thompson held it was unconstitutional, it
amended the intent provisions and the statute’s applicability in public places, but it did not modify
the prohibited manners of creating a visual image listed in (b)(1) and (b)(2). See Act of May 30,
2015, 84th Leg., R.S., ch. 955, § 2, 2015 Tex. Gen. Laws 3394, 3394 (codified at TEX. PENAL
CODE § 21.15). We conclude that, as used in section 21.15(b)(1) and (b)(2), “transmit” applies
only to an actor who by electronic means creates the proscribed visual image.
b. Content and location of prohibited photographs and visual images
The photographs and visual images prohibited by section 21.15(b)(1) are those “of an
intimate area of another person if the other person has a reasonable expectation that the intimate
area is not subject to public view.” TEX. PENAL CODE § 21.15(b)(1). “Intimate areas” means a
person’s “naked or clothed genitals, pubic area, anus, buttocks, or female breast.” Id. § 21.15(a)(2).
Subsection (b)(1) appears to have several applications. First, it proscribes creating visual images
of parts of the body the person reasonably expects are not subject to public view. That is, it applies
to photographs and visual images created in any location, public or private, if the image is of an
intimate area the person reasonably believed was not subject to public view because, for example,
it was covered by outer clothing such as a skirt. Indeed, the opinions we have found reviewing
convictions under the 2015 amendments to section 21.15(b)(1) all involve “upskirt” photography
or recording. See Aguilar v. State, No. 14-18-00321-CR, 2019 WL 3121823 (Tex. App.—Houston
[14th Dist.] July 16, 2019, no pet.) (mem. op., not designated for publication) (upskirt video with
cell phone in a store); Ex parte Faust, No. 09-18-00462, 2019 WL 1549037 (Tex. App.—
Beaumont April 10, 2019, no pet.) (mem. op., not designated for publication) (upskirt video
recording with cell phone in shopping mall); Vasquez v. State, No. 05-16-01122-CR, 2017 WL
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1710583 (Tex. App.—Dallas May 3, 2017, no pet.) (mem. op., not designated for publication)
(upskirt photography with cell phone in a grocery store).
By its plain language, section 21.15(b)(1) also includes visual images created when the
subject of the image is in a place where they have a reasonable expectation their intimate areas are
not subject to public view, such as in the person’s home, so long as the image includes one or more
of their (naked or clothed) intimate areas. A person in their home who is not standing in front of
a window with open curtains may reasonably expect that they are not subject to public view. Cf.
Long v. State, 532 S.W2d 591, 594-95 (Tex. Crim. App. 1975) (holding Fourth Amendment
reasonable expectation of privacy does not protect what a person makes visible to public through
a window with open curtains or blinds); Turner v. State, 499 S.W.2d 182, 183-85 (Tex. Crim. App.
1973) (same). By the plain terms of the statute, an image of that person in their home that includes
one of the person’s intimate areas, naked or clothed, is within the scope of subsection (b)(1). The
statute does not require the proscribed image be sexual in nature.
The location and content of images proscribed by subsection (b)(2) are unambiguous: it
applies to any photograph or visual image of another person in one of two inherently private
places—a bathroom or changing room.
c. Nonconsensual
In order to be prohibited by section 21.15(b)(1) or (b)(2), the creation of the visual image
must be done “without the other person’s consent.” “Consent” is defined by the Texas Penal Code
to mean “assent in fact, whether express or apparent.” TEX. PENAL CODE § 1.07(a)(11). The Penal
Code definition has been construed to mean “an actual or real agreement after thoughtful
consideration.” Thompson, 442 S.W.3d at 340-41; Baird v. State, 398 S.W.3d 220, 229-30 (Tex.
Crim. App. 2013).
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d. Intent to invade privacy
Both subsections (b)(1) and (b)(2) require the actor have taken the photograph or
transmitted the visual image with the intent to invade the privacy of the other person. Neither
“intent to invade the privacy” of a person nor “invasion of privacy” are defined in the Texas Penal
Code or in any other Texas statute. However, the phrase has acquired a technical or particular
meaning in Texas common law. See TEX. GOV’T CODE § 311.011.
A right to personal privacy has long been part of the common law, and since 1973, Texas
has recognized that an unwarranted invasion of the right of privacy constitutes a legal injury.
Billings v. Atkinson, 489 S.W.2d 858, 859-60 (Tex. 1973). This right to of privacy incorporates
several interests, the invasion of which can give rise to a civil remedy. Id. One of those interests—
the right to be free from the wrongful intrusion into one’s seclusion and private activities—is
addressed by subsections 21.15(b)(1) and (b)(2). See id. at 859. 6 Under established Texas law, the
elements of a claim for invasion of privacy by intrusion are an intentional intrusion, physically or
otherwise, upon another’s solitude, seclusion, or private affairs, which would be highly offensive
to a reasonable person of ordinary sensibilities. See id; Valenzuela, 853 S.W.2d at 513. We
construe the intent element of subsections (b)(1) and (b)(2) accordingly, to mean the photography
or transmission must be done with the intent to intrude upon the other person’s seclusion or private
affairs in a manner that would be highly offensive to a reasonable person of ordinary sensibilities.
6
Subsection (b)(3), which makes it an offense to promote a photograph or transmission that is prohibited by (b)(1) or
(b)(2), addresses another of the privacy interests recognized in Billings—the interest in being free from publication
“of one’s private affairs with which the public has no legitimate concern.” See id.; Star-Telegram, 915 S.W.2d at 474
(elements of invasion of privacy tort for public disclosure of private facts requires proof that “publicity was given to
matters concerning one’s personal life,” “publication would be highly offensive to a reasonable person of ordinary
sensibilities,” and “the matter publicized is not of legitimate public concern”).
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2. The State’s compelling interests
The strict scrutiny analysis requires the state to identify “an actual problem in need of
solving,” and to show that it is important enough to justify suppressing speech. See Brown, 564
U.S. at 799. The State asserts the problem it is seeking to address is the “intolerable” invasion of
people’s privacy that occurs when they are photographed without their consent in their home,
bathroom, or changing room and when visual images are created of their intimate areas without
consent and when they have a reasonable expectation their intimate areas are not subject to public
view. Appellate opinions in cases under section 21.15 since it was amended in 2015 reflect
prosecutions involving these types of activity—upskirt photography, pictures taken with a cell
phone in a bathroom or dressing room, a hidden recording device in a dressing room, and a cell
phone recording made in the bathroom of a home. See Hamilton, 599 S.W.3d at 315 (defendant
alleged to have broadcast visual image of complainant’s genitals, which complainant had
reasonable expectation were not subject to public view); Aguilar, 2019 WL 3121823, at *1 (upskirt
video with cell phone in a store); Faust, 2019 WL 1549037, at *1 (upskirt video recording with
cell phone in shopping mall); Aleman v. State, No. 13-16-00509-CR, 2018 WL 4016938, at *1-2
(Tex. App.—Corpus Christi Aug. 23, 2018, no pet.) (mem. op., not designated for publication)
(miniature recording device used to surreptitiously capture images in store dressing room); Dee v.
State, No. 06-17-00097-CR, 2017 WL 5473770, at *1 (Tex. App.—Texarkana Nov. 15, 2017, no
pet.) (mem. op., not designated for publication) (surreptitious cell phone video of person in
bathroom of a home); D.Y., 2017 WL 2178877, at *1 (cell phone used to photograph or record an
unconsented visual image of another in a bathroom or dressing room); Vasquez, 2017 WL
1710583, at *1-2 (upskirt photography with cell phone in a grocery store).
Privacy rights, no less than First Amendment freedoms, are “plainly rooted in the traditions
and significant concerns of our society.” Fla. Star, 491 U.S. at 533 (quoting Cox Broad. Corp. v.
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Cohn, 420 U.S. 469, 491 (1975)). The “right to be let alone,” “is as much a part of personal liberty
as the right to be free from physical restraint and the right to possess property.” Star-Telegram,
915 S.W.2d at 473. As early as 1890, Samuel Warren and Louis Brandeis recognized that “existing
law affords a principle which may be invoked to protect the privacy of the individual from invasion
by either the too enterprising press, the photographer, or the possessor of any other modern device
for recording or reproducing scenes or sounds.” Samuel D. Warren & Louis Brandeis, The Right
to Privacy, 4 HARV. L. REV. 193, 206 (1890). The right to personal privacy incorporates both a
right to seclusion and a right to bodily integrity and sexual privacy. Section 21.15(b)(1) and (b)(2)
seek to protect both of these aspects of privacy.
The State has an interest in protecting its citizens’ personal privacy and security in the
seclusion of their homes where they have a legitimate right to expect to be free from prying eyes
and lenses. The United States Supreme Court has recognized that “[t]he State’s interest in
protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in
a free and civilized society.” Frisby, 487 U.S. at 484 (quoting Carey v. Brown, 447 U.S. ,455, 471
(1980)). Texas has long proscribed “peeping Tom” activity by making it a crime to peer into a
person’s home or hotel room through a window or other opening. See, e.g., TEX. PENAL CODE
§§ 42.01(11) (disorderly conduct); 21.17 (voyeurism). The individual’s interest in seclusion and
the State’s interest in protecting it are no less when the peeping Tom wields a camera or peers
remotely by means of a camera or electronic transmission device hidden in the home. “[I]n the
privacy of the home, the individual’s right to be left alone plainly outweighs the First Amendment
rights of an intruder.” F.C.C. v. Pacifica Found., 438 U.S. 726, 748 (1978).
The right of privacy also includes rights to bodily integrity and sexual privacy. A person’s
fundamental interest in bodily integrity and sexual privacy have been recognized as liberty
interests that are protected from unwarranted state interference by the Due Process Clause. See
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Lawrence v. Texas, 539 U.S. 558, 564-67, 572 (2003); Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1992). Those interests are invaded by a private actor who creates unconsented visual
images of a person in a place such as a changing room or a bathroom where people are vulnerable,
expose their bodies, and engage in highly private activities with the reasonable expectation they
are not being photographed or recorded. A person’s bodily integrity and sexual privacy is also
violated when someone inside their home usurps the person’s right to choose whether photographs
may be taken of their intimate areas. See Clayton v. Richards, 47 S.W.3d 149, 155-56 (Tex. App.—
Texarkana 2001, pet. denied) (holding unconsented video recording of a person in the privacy of
his bedroom, even when done by the other spouse, could be found to be highly offensive to
reasonable person and thus a tortious invasion of privacy). These types of “video voyeurism”
“violate[] people’s sexual privacy by denying their autonomy. It effectively takes dominion over
their bodies, intimate activities, and sexual interactions without permission. It hijacks their ability
to decide who has access to their body, bedroom, or bathroom. It undermines people’s sense that
they control their intimate lives.” Danielle Keats Citron, Sexual Privacy, 128 YALE L.J. 1870, 1909
(2019). Likewise, “up-skirt” and “down-blouse” photographs violate sexual privacy by
“undermin[ing] the victim’s decision to shield her genitalia and breasts from the public—consent
and sexual autonomy are no longer in victims’ control.” Id. at 1914. The State has a legitimate
interest in preventing and punishing the “profound” harm caused by these types of assaults on
sexual privacy and bodily integrity. See id. at 1924-29 and accompanying notes (discussing harm);
see also Union Pac. R. Co. v. Botsford, 141 U.S. 250, 252 (1891) (stating “[t]he inviolability of
the person is as much invaded by a compulsory stripping and exposure as by a blow”); Van Buren,
214 A.3d at 810-11 (discussing substantial harm caused by non-consensual pornography). We
conclude the rights to personal seclusion, bodily integrity, and sexual privacy are substantial rights;
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and the state has a compelling interest in protecting those rights from highly offensive or
“intolerable” attack.
3. The statute is narrowly tailored
To survive strict scrutiny, a law must be narrowly tailored. That means the statute must
address the problem the State has a compelling interest in resolving, the curtailment of free speech
is “actually necessary to the solution,” and the restriction on protected speech is the least restrictive
means to serve the compelling interest. Brown, 564 U.S. at 799; Ashcroft, 542 U.S. 655.
The State contends sections 21.15(b)(1) and (b)(2) 7 are narrowly tailored because 1) they
apply only to photographs taken and visual images transmitted in places where the person has a
reasonable expectation of privacy or where they have a reasonable expectation their intimate areas
are not subject to public view; 2) they do not apply to photographs or transmissions of visual
images of people or their intimate areas that are in public view; 3) they apply only if the photograph
is taken or the visual image is transmitted without consent; and 4) they apply only if the actor
intends to invade the other person’s privacy.
We agree the statute narrowly addresses problems the State has a compelling interest in
solving and protects compelling privacy interests. Sections 21.15(b)(1) and (b)(2) restrict the
protected expressive activity of a person who invades the bodily integrity and sexual privacy of
another or who intrudes upon the seclusion of the home by means of unconsented photography or
electronic transmission. The statute applies to photography and transmissions created with
surreptitiously placed devices in a home, bathroom, or changing room, and to “peeping Toms,”
who photograph or transmit through cracks in the curtains, a hole in the wall, or from the ground,
looking up a person’s skirt. The statute also may reach unconsented photographs that contain any
7
Our analysis is limited to photographs and transmissions of live feeds of visual images prohibited by section
21.15(b)(1) and (b)(2).
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intimate area of a naked or fully clothed person and were taken by someone, such as a family
member or team member, who is rightfully in the home or locker room 8 with the person
photographed. However, the state has a compelling interest in restricting and punishing such an
actor only if the unconsented photography is an “intolerable” invasion of the other person’s bodily
privacy. As we have construed the intent-to-invade-privacy element, 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.
Section 21.15(b)(1) and (b)(2) of the Texas Penal Code, as we have construed them, reach
only invasions of “substantial” privacy interests that occur “in an intolerable manner.” See
Thompson, 442 S.W.3d at 348. We conclude the statutory curtailment of protected photography
and transmission of visual images in those sections of the statute is no broader than necessary to
prevent the substantial harms the State has a compelling interest in preventing and therefore
survives strict scrutiny. See Sable Commnc’ns, 492 U.S. at 126 (State may regulate
“constitutionally protected speech in order to promote a compelling interest if it chooses the least
restrictive means to further the articulated interest.”).
D. Metzger has not shown the statute is unconstitutionally overbroad
Because overbreadth is “manifestl[y] strong medicine,” it is employed “sparingly, and only
as a last resort.” Oakes, 491 U.S. 581. A statute will be facially invalidated as unconstitutionally
overbroad only if it reaches a real and substantial amount of protected expression, “not only in an
absolute sense, but also relative to the statute’s plainly legitimate sweep.” Williams, 553 U.S. at
292. “The person challenging the statute must demonstrate from its text and from actual fact “that
8
Photographs taken in a locker room or the bathroom of a home are within the scope of the statute even if the image
does not contain any “intimate area.”
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a substantial number of instances exist in which the Law cannot be applied constitutionally.”
Johnson, 475 S.W.3d 865 (quoting N.Y. State Club Ass’n Inc. v. City of New York, 487 U.S. 1, 14
(1998).
Metzger has not attempted to establish the statute reaches protected expression beyond that
which the state has a compelling interest in prohibiting. Although it is conceivable a photograph
or transmission created in violation of section 21.15(b)(1) or (b)(2) could be of such public concern
that punishment for its creation would not comport with the First Amendment, “the danger the
statute will be unconstitutionally applied must be realistic and not based on fanciful hypotheticals.”
Id. (internal quotation marks and citations omitted). In light of the tensions between privacy
interests and the First Amendment, we decline to facially invalidate the statute without a showing
by appellant that a real and substantial amount of protected speech beyond the statute’s legitimate
reach is prohibited or that protected speech is unjustifiably chilled. We do not hold section
21.15(b)(1) and (b)(2) of the Penal Code are constitutional in all their applications. Rather, we
hold Metzger has failed to show unconstitutional overbreadth and we “assume that ‘whatever
overbreadth may exist should be cured through case-by-case analysis of the fact situations to which
its sanctions, assertedly, may not be applied.’” N.Y. State Club Ass’n, 487 U.S. at 14 (quoting
Broadrick v. Ok, 413 U.S. 601, 615-16 (1973)).
CONCLUSION
In conclusion, we hold section 21.15(b)(1)-(2) of the Texas Penal Code is a content-based
restriction on activity protected by the First Amendment to the United States Constitution.
However, as we have construed the restrictions on photography and electronic transmissions of
visual images in 21.15(b)(1)-(2), the restrictions are narrowly tailored to serve the State’s
compelling interest in protecting its citizens from highly intrusive and offensive invasions of their
substantial privacy rights. Metzger has not shown the challenged part of the statute will reach a
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substantial amount of protected speech beyond this legitimate sweep or that it will unjustifiably
chill protected activity. We therefore hold Texas Penal Code sections 21.15(b)(1) and (b)(2) are
not facially overbroad, and we affirm the trial court’s orders.
Luz Elena D. Chapa, Justice
PUBLISH
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