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Dallas Doctor Busted Under Texas' Improper Photography Law, Which Sure Seems Unconstitutional

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In late March, the parent of a high school cheerleader emailed a tip to the Observer. Last fall, she wrote, Dallas radiologist Dr. James Summa was arrested at a Mesquite High School football game and charged with improper photography for snapping pictures of underage girls.

We confirmed the arrest with Mesquite PD, but Mesquite, ratified by the Texas Attorney General's Office, refused to release documents from the case because Summa's alleged crime qualifies as sexual abuse of a child.

Fox 4's Becky Oliver did manage to get the docs, and several anonymous outraged parents. From her piece that ran Monday:

Friday night football at Mesquite High School draws a big crowd. Last October, one man in that crowd also grabbed the attention of parents and police.

"All of a sudden, an officer came around me, starting looking over his shoulder, leaning down and then he grabbed his camera and grabbed him from the shoulder and I saw him lead him out," said the mother of a cheerleader.

Records show police arrested Dr. James Summa for improper photography, which is a state jail felony. The police affidavit says detectives confiscated Dr. Summa's camera and found still pictures and videos, and the focal point of those images was on "female's legs or buttocks region." It says surveillance video also shows Summa walking with some young girls "holding his left arm straight down to his side while holding the camera as still as possible."

Police says Summa did not have any relatives or friends at the game, and lives 20 miles away.

It definitely sounds creepy, but a state jail felony, punishable by six months to two years in jail and up to a $10,000 fine?

Under Texas' amazingly broad improper photography statute, yes. It makes a criminal of anyone who "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 without the other person's consent; and with intent to arouse or gratify the sexual desire of any person."

The constitutionality of the statute has been challenged repeatedly, both informally on legal blogs and in formal court challenges.

In 2011, a state appeals court ruled the law constitutional. Two years later, another appeals court ruled the opposite, sending the matter up to the Texas Court of Criminal Appeals, the state's highest criminal court.

The court heard arguments in the case on Wednesday morning. The justices have yet to issue a ruling, but First Amendment advocates are concerned that the improper photography statute is way too broad and could have a chilling effect on legitimate photography.

Here's an excerpt from a friend-of-the-court brief filed in the case by First Amendment attorneys.

This focus on only a particular kind of content -- "visual image[s] of another" -- makes this law content-based (though not viewpoint-based). No First Amendment exception justifies this sort of restriction; the law is not limited, for instance, to obscene images or to child pornography. And the First Amendment fully protects photographs generally, and the creation of photographs in public places in particular.

Moreover, the law (whether or not it is viewed as content-based) would in practice deter a wide range of speech. As the court of appeals recognized, [it] would potentially apply to fans or professional photographers who photograph sports figures, cheerleaders, or celebrities -- subjects who often exude sexual appeal and who might not want to be photographed, even in public places. It could apply to photographs taken by tourists, who may seek to capture the look of a city, including both its architecture and its residents. It could be used to punish any student, amateur, or professional photographer (including a journalist) who photographs figures during events containing sexual undertones, such as many gay-pride parades, Halloween celebrations, and dance parties.

And in such cases, the intent element may do little to safeguard against improper criminalization of protected speech. A police officer, prosecutor, or jury might infer intent to arouse sexual desires from the attractiveness of a photographer's subjects, or from the fact that the subjects were dressed in revealing clothing (whether on the beach, at a sporting event, at a nightclub, or at a gay-pride parade.) Even a photographer who has no sexual intentions might be worried that others will infer such intentions, and that he will face an arrest at best and a felony conviction at worst. Thus, in addition to impermissibly criminalizing a substantial amount of protected speech, [the improper photography statute] threatens to chill still more, as some speakers avoid creating expressive works that they fear might even arguably fall within the state's broad reach.

In short, do you really want a cop deciding what you find arousing? (Hint: No).

Send your story tips to the author, Eric Nicholson.

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