OPINION After the Court of Criminal Appeals declared the 2007 version of Penal Code section 21.15(b)(1) facially unconstitutional in 2014, the legislature enacted the current version in 2015.[1] See Tex. Penal Code Ann. § 21.15(b)(1). Applicant Kamilah A. Hamilton stands charged by indictment under current section 21.15(b)(1) with the state jail felony offense of invasive visual recording. See id. § 21.15(b)(1), (c). Applicant filed a pretrial application for writ of habeas corpus and motion to quash the indictment, arguing that subsection (b)(1) is overbroad under the First Amendment of the United States Constitution. See Tex. Code Crim. Proc. Ann. art. 11.08. The trial court denied the requested relief, and applicant appealed. We affirm. I. Background Applicant was indicted under Penal Code section 21.15(b)(1). Section 21.15(b)(1) provides: (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. Tex. Penal Code Ann. § 21.15(b)(1). In section 21.15, “intimate area” is defined as “the naked or clothed genitals, pubic area, anus, buttocks, or female breast of a person.” Id. § 21.15(a)(2). “Female breast” is defined as “any portion of the female breast below the top of the areola.” Id. § 21.15(a)(1). An offense under section 21.15 is a state jail felony. Id. § 21.15(c). Specifically, applicant was alleged to have on or about October 28, 2017, unlawfully, and with the intent to invade the privacy of complainant D.R.A., and without complainant’s consent, broadcast a visual image of an intimate area of complainant, namely, the genitals, and complainant had a reasonable expectation of privacy that said intimate area was not subject to public view. See id. § 21.15(b)(1). Applicant filed a pretrial application for writ of habeas corpus; she argued that section 21.15(b)(1) is facially overbroad in violation of the First Amendment. See U.S. Const. amend. I. On May 9, 2018, the trial court signed an order denying applicant’s request for habeas relief, effectively remanding applicant into custody. See Tex. Code Crim. Proc. Ann. art. 11.44. Applicant appeals the sole issue of whether section 21.15(b)(1) is facially overbroad.[2] II. Analysis A. Standard of review An applicant may file a pretrial application for writ of habeas corpus in order to raise a facial challenge to the constitutionality of the statute under which the applicant is charged. Ex parte Thompson, 442 S.W.3d 325, 333 (Tex. Crim. App. 2014); see Ex parte Lo, 424 S.W.3d 10, 13-14 (Tex. Crim. App. 2013). Whether a criminal statute is facially unconstitutional is a question of law subject to de novo review. Lo, 424 S.W.3d at 14. When the constitutionality of a statute is challenged, a court usually presumes that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id. at 14-15; see Code Construction Act, Tex. Gov’t Code Ann. § 311.021. With respect to constitutional provisions other than the First Amendment, a facial challenge to the constitutionality of a statute will succeed only if it is shown that the statute is unconstitutional in all of its applications. State v. Johnson, 475 S.W.3d 860, 864 (Tex. Crim. App. 2015) (citing Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 & n.6 (2008)). However, when the statute suppresses, disadvantages, or imposes differential burdens upon speech based on its content, the usual presumption of constitutionality does not apply. Lo, 424 S.W.3d at 15 (citing United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 817 (2000)). Instead, content-based regulations of protected speech are presumptively invalid, and the State bears the burden to rebut that presumption. Id. (citing Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 660 (2004)). Courts apply such strict scrutiny in their review of a content-based regulation of speech or expressive conduct. See, e.g., Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2226-27, 2231-32 (2015) (“Content-based laws—those that target speech based on its communicative content—are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”); Sable Commc ‘ns of Cal., Inc. v. Fed. Commc ‘ns Comm ‘n, 492 U.S. 115, 126 (1989) (“The Government may, however, 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.”); Thompson, 442 S.W.3d at 344, 348-49 (“Under strict scrutiny, a regulation of expression may be upheld only if it is narrowly drawn to serve a compelling government interest.” (citing Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 799 (2011))). To determine which presumption applies, we must determine whether subsection (b)(1) regulates speech or expression based upon its content. B. Implication of protected speech or expression The State urges this court to hold section 21.15(b)(1) regulates conduct that is not subject to First Amendment protection or scrutiny whatsoever. We decline to do so. In Thompson, the Court of Criminal Appeals addressed a similar contention when it considered the constitutionality of the 2007 section 21.15(b)(1). 442 S.W.3d at 334-37. The court determined that photographs and visual recordings are inherently expressive and further concluded “that a person’s purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves.” Id. at 336-37. The court also rejected the State’s arguments that the mere presence of intent and consent elements in the former subsection (b)(1) placed it outside the protection of the First Amendment. Id. at 337-42. Finally, the court distinguished Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010), because the telephone-harassment statute at issue there dealt with communications by telephone and applied to defendants who intended to inflict emotional harm on their victims. Thompson, 442 S.W.3d at 34243. In ultimately concluding that the 2007 subsection (b)(1) implicated the First Amendment on its face, the Thompson court “ke[p]t in mind the Supreme Court’s admonition that the forms of speech that are exempt from First Amendment protection are limited, and [courts] should not be quick to recognize new categories of unprotected expression.” Id. at 344; see United States v. Stevens, 559 U.S. 460, 468-72 (2010) (historically unprotected categories of speech include speech integral to criminal conduct, obscenity, defamation, fraud, incitement, and child pornography). The State argues that subsection (b)(1)’s intent-to-invade-privacy element places it beyond any First Amendment protection. However, just because a statute contains an intent element does not eliminate all First Amendment concerns. Thompson, 442 S.W.3d at 337. It depends on the specific type of intent. Id. The intent element in subsection (b)(1) does not rise to the level of unprotected threats or intimidation. See id. at 338 (indicating that intent to threaten or intimidate “might help to eliminate First Amendment concerns”). Nor did the Thompson court list intent to invade privacy as an example of entirely unprotected expression. See id. at 349 & n.142 (declining to express opinion whether including culpable mental state of intent to “invade the privacy of the other person” would be sufficient on its own to salvage constitutionality of 2007 subsection (b)(1)). The State relies on Scott. However, like the Thompson court, we conclude Scott is distinguishable. See Thompson, 442 S.W.3d at 342-43. In addition, the State cites in support a First Court of Appeals case aligning with Scott, Horhn v. State, 481 S.W.3d 363 (Tex. App.—Houston [1st Dist.] 2015, pet. refd). But Horhn also is distinguishable because the offense at issue there (fraudulent use of identifying information) “requires the specific intent to harm or defraud and requires that the actor ‘obtains, possesses, transfers, or uses an item [of] identifying information’ with that specific intent.” Id. at 375; see Ex parte Harrington, 499 S.W.3d 142, 147 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (“The intent required of [fraudulent use of identifying information statute] is similar to the mens rea requirement of the harassment statute.”). C. Content-based restriction Having concluded that the statute implicates expressive conduct subject to First Amendment protection, we next consider whether the statute imposes restrictions based on content. Generally, a law is considered to be content based if it distinguishes favored speech from disfavored speech on the basis of the ideas or views expressed. See Thompson, 442 S.W.3d at 345. In other words, “[i]f it is necessary to look at the content of the speech in question to decide if the speaker violated the law, then the regulation is content-based.” Id. (citing Lo, 424 S.W.3d at 15 n.12 (citing Gresham v. Peterson, 225 F.3d 899, 905 (7th Cir. 2000))). Here, the statute seeks to curtail nonconsensual taking and dissemination of photographs and video recordings of another person’s “intimate area,” defined as “naked or clothed genitals, pubic area, anus, buttocks, or female breast.” Tex. Penal Code Ann. § 21.15(a)(1), (2), (b)(1). It is the sexually-related nature and subject matter of the images sought to be proscribed that renders the statute content based. See Thompson, 442 S.W.3d at 348 (former subsection (b)(1) sought to prevent sexual content); see also Lo, 424 S.W.3d at 22-24 (discussing First Amendment protection of indecent sexual expression (citing Reno v. Am. Civil Liberties Union, 521 U.S. 844, 874 (1997)). D. Strict scrutiny Having concluded that section 21.15(b)(1) regulates expressive conduct based on its content, we apply strict scrutiny in our review to determine if the State has overcome the presumption of invalidity. See Thompson, 442 S.W.3d at 344 (citing Entm’tMerchs. Ass ‘n, 564 U.S. at 799). To satisfy strict scrutiny, a law that regulates expression must be “narrowly drawn to serve a compelling government interest.” Id. (same). “[A] regulation is ‘narrowly drawn’ if it uses the least restrictive means of achieving the government interest.” Id. (citing Playboy, 529 U.S. at 813).[3] First, the Court of Criminal Appeals has recognized that “[p]rivacy constitutes a compelling government interest when the privacy interest at stake is substantial and the invasion occurs in an intolerable manner.” Id. at 348 (citing Snyder v. Phelps, 562 U.S. 443, 459 (2011)). A substantial privacy interest is “invaded in an intolerable manner when a person is photographed without consent in a private place, such as the home, or with respect to an area of the person that is not exposed to the general public, such as up a skirt.” Id. Subsection (b)(1) clearly seeks to protect a person’s substantial privacy interest in his or her own personal “intimate areas” “not subject to public view” and punish nonconsensual attempts to capture or transmit photographs or recordings of those private areas of a person. See Tex. Penal Code Ann. § 21.15(b)(1). The legislative history of the 2015 amendment of subsection (b)(1) confirms that the legislature was seeking to address substantial violations of privacy, noting “[t]here have been several reports in Texas of individuals who have had invasive and improper photographs taken of them without their consent.” See Senate Research Center, Bill Analysis, Tex. S.B. 1317, 84th Leg., R.S. (2015). Second, section 21.15(b)(1) is narrowly drawn. In applying the strict-scrutiny standard to former subsection (b)(1)—and holding that it did not survive strict scrutiny and was unconstitutional on its face in violation of the First Amendment— the Thompson court nevertheless provided some limiting guideposts.[4] As an example, the Thompson court indicated that then-in-effect section 21.15(b)(2) would indeed meet the strict-scrutiny standard: One need only look at the next subsection of the statute— § 21.15(b)(2)—to see an example of a provision that is in fact narrowly drawn to protect substantial privacy interests—the provision that makes it a crime to “photograph or . . . record[ ] . . . a visual image of another at a location that is a bathroom or private dressing room.” 442 S.W.3d at 348-49 (alterations in original) (quoting 2007 Tex. Penal Code § 21.15(b)(2)); see Act of May 18, 2007, 80th Leg., R.S., ch. 306, § 1, 2007 Tex. Gen. Laws 582, 582, amended by Act of May 30, 2015, 84th Leg., R.S., ch. 955, § 2, 2015 Tex. Gen. Laws 3394, 3394 (current version at Tex. Penal Code § 21.15(b)(2)). Likewise, the court described how former subsection (b)(1) could “be narrowed by adding an element that requires that a person’s privacy interest be invaded as a result of the place of the person recorded or the manner in which a visual recording is made” or by designating “specific places and manners that are proscribed, such as specifically proscribing the taking of a photograph of a person inside his home or the taking of a photograph underneath a person’s clothing.” Thompson, 442 S.W.3d at 349. Such narrower methods would “reach[] such situations that address more directly the substantial privacy interests at stake.” Id. Here, in addition to including a culpable—intentional—mental state to narrow the provision to address substantial privacy concerns, the legislature precisely designated and further limited the application of subsection (b)(1) to specific areas of a person’s body both based on “intimate area” location and to situations where a person has a reasonable expectation that such “intimate area is not subject to public view.” See Tex. Penal Code Ann. § 21.15(b)(1). Applicant sidesteps the strict-scrutiny discussion in Thompson. See 442 S.W.3d at 348-49.[5] But we cannot ignore the Thompson court’s express recognition of the State’s compelling interest in curtailing intentional, intolerable invasions of its citizens’ substantial privacy interests. Id. at 348. Moreover, we find the various “less restrictive” methods and means to narrowly draw a provision seeking to proscribe invasive visual recording as analyzed by the higher court (at the least) persuasive. Id. at 348-49.[6] We therefore conclude that subsection (b)(1) meets strict scrutiny. E. Not facially overbroad Applicant argues section 21.15(b)(1) is facially overbroad and fails strict scrutiny[7] because it “restricts a real and substantial amount of protected speech.”[8] We disagree. “According to the First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a ‘substantial’ amount of protected speech ‘judged in relation to the statute’s plainly legitimate sweep.’” Lo, 424 S.W.3d at 18 (quoting Virginia v. Hicks, 439 U.S. 113, 118-19 (2003)). “A statute is likely to be found overbroad if the criminal prohibition it creates is of ‘alarming breadth.’” Thompson, 442 S.W.3d at 350 (quoting Stevens, 559 U.S. at 474). The overbreadth doctrine is “strong medicine” to be employed only as a last resort. Id. at 349 (citing New York v. Ferber, 458 U.S. 747, 769 (1982)). After it determined that the former version of section 21.15(b)(1) was an invalid content-based restriction, the Thompson court also addressed overbreadth. Id. at 349-51. The court assumed that some applications of the former subsection (b)(1) would be legitimate, i.e., situations when photographs were “taken of an area of a person’s body that is not exposed to the public, such as when a photograph is taken up a woman’s skirt.” Id. at 349. Nevertheless, the court concluded the former statute was “extremely broad” and there was a “real danger” of prosecutions involving purely public photographs of public parts of people in public places. Id. at 350-51. In contrast, we already have determined that the current subsection (b)(1) is narrowly drawn to meet a compelling state interest in protecting against the invasion of substantial privacy interests. It proscribes conduct involving photographing, recording, broadcasting, or transmitting a visual image of another person’s “intimate area”—only when it is done “without the other person’s consent and with intent to invade the privacy of the other person” and “if the other person has a reasonable expectation that the intimate area is not subject to public view.” Tex. Penal Code Ann. § 21.15(b)(1). These limitations help guard against unrestrained, unconstitutional prosecutions. There is no indication that an individual will be chilled from exercising his or her First Amendment rights to engage in visual sexual expression in most situations—as long as the “intimate areas” of the subject are in public view or the subject has no reasonable expectation that his or her “intimate areas” are not subject to public view, the individual does not intend to invade the subject’s privacy, or the subject consents to having his or her “intimate areas” captured or recorded. See State v. Stubbs, 502 S.W.3d 218, 235 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (“Merely imagining some possible unconstitutional applications does not suffice to demonstrate a realistic danger that in fact the statute will be overbroadly applied.”). Indeed, the only appellate decisions of which we are aware involve legitimate applications of the current subsection (b)(1) to defendants taking “upskirt” photographs or videos of complainants’ “intimate areas” without their consent while they were shopping.[9] Cf. Thompson, 442 S.W.3d at 350-51 & n.154 (noting at least four appellate decisions when cases involved application of former subsection (b)(1) to protected “purely public photography”). Unlike the former subsection (b)(1), we conclude there is no “realistic” danger that the current statute will be unconstitutionally applied. See id. at 350. We therefore hold that section 21.15(b)(1) satisfies strict scrutiny, is not facially overbroad, and does not violate the First Amendment. Accordingly, the trial court did not err in denying applicant’s request for habeas relief. We overrule applicant’s sole issue on appeal. III. Conclusion We therefore affirm the trial court’s order denying relief on application for writ of habeas corpus and motion to quash the indictment. See Tex. R. App. P. 31.3. /s/ Charles A. Spain Justice Panel consists of Justices Christopher, Spain, and Poissant. Publish—Tex. R. App. P. 47.2(b).
