The state's highest criminal court on Wednesday upheld a 2015 law that made it a crime to post "revenge porn" — intimate photos and videos from a previous or current relationship — on the internet without consent.
The unanimous decision by the Texas Court of Criminal Appeals overturned a lower-court ruling that struck down the revenge porn law as a violation of free speech by restricting expression based on the content of the photographs and video that is shared online.
Such speech can be limited, the appeals court found, based on a compelling government interest — in this case a reasonable expectation that the sexual depictions were intended to remain private.
"Disclosing visual material when the depicted person reasonably expected it would remain private is an intolerable invasion of privacy, especially when the visual material shows the depicted person’s intimate parts or sexual conduct," the court said in an unsigned opinion.
"Privacy constitutes a compelling government interest when the privacy interest is substantial and the invasion occurs in an intolerable manner," the court added.
The Texas law also was narrowly written to address, and punish, only those "who were in intimate relationships and then vengefully circulated intimate visual material," the court said.
The Court of Criminal Appeals also rejected arguments that the revenge porn law was so vague that it could have the unintended effect of criminalizing protected behavior, such as forwarding depictions of artwork or images relevant to public discourse.
"There is no evidence that people who willingly participate in the creation of sexually explicit art commonly do so with any reasonable expectation of privacy, and the likelihood seems remote," the court said.
The Legislature passed the revenge porn law in 2015 with unanimous support from the House and Senate after hearing testimony from victims who said they had no legal recourse to pursue charges after learning that intimate photos had been posted online.
The law created a state jail felony that can be punished with a maximum of two years in jail and a $10,000 fine. It also allowed victims to sue for compensation for actual damages and mental anguish.
