Ronald Thompson is not a particularly sympathetic defendant. Authorities say the 50-year-old visited Sea World in July 2011 to surreptitiously photograph young children. When police arrested him and seized his camera, they found 73 pictures of children in swimsuits, almost all of the images centered on the chest or buttocks. A Bexar County grand jury indicted him on 26 counts of improper photography.
And yet Thompson could go free with a ruling from Texas' Fourth Court of Appeals that the improper photography statute is unconstitutional.
The law, passed by the state legislature a dozen years ago, makes it illegal for anyone to photograph or videotape -- and to text, email, or otherwise transmit a photo or video -- without the consent of the subject and "with intent to arouse or gratify the sexual desire of any person."
Prosecutors have used the measure to go after dentists and school superintendents who put hidden cameras in restrooms; teenagers who photographed naked classmates; folks who wander around Walmart snapping photos of shopper's private parts.
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The San Antonio appeals court doesn't have a problem with any of that, per se, writing in its opinion that the legislature has "an important interest in protecting its citizens from covert photography that may invade their expectation of privacy."
The problem is with how vague the statute is. In his appeal, Thompson's lawyers give the example of a paparazzo snapping celebrity photos and a hypothetical man photographing fully clothed adult women on a public street. Both risk prosecution under the law, as does anyone who takes a photo of anyone without their consent. Not only does that stifle free speech, it also interferes with the right to have "unregulated thoughts," the court writes.
Thompson's appeal was a preemptive challenge to the constitutionality of the improper photography statute, and he has not yet gone to trial. He won't, either, unless the Texas Supreme Court overrules the appeals court. Bexar County District Attorney Susan Reed has vowed to keep fighting, warning constituents to "cover up while we appeal!"
(h/t Grits for Breakfast)