State of Texas v. Hunter Thomas Taylor [Updated]
Those who think we need a statute criminalizing nonconsensual porn need look no further. Texas’s improper-photography statute says:
A person commits an offense if the person…by…electronic means…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;
In a deposition in August Hunter Thomas Taylor, the alleged proprietor of revenge-porn site texxxan.com, told lawyer John S. Morgan, “I’m not at fault for anything because I just opened the platform and let people post whatever they wanted.”
Texas’s Law of Parties states:
A person is criminally responsible for an offense committed by the conduct of another if…acting with intent to promote or assist the commission of the offense, he…aids…the other person to commit the offense.
I believe Taylor is representing himself, and probably shouldn’t be. Because improper photography is a felony, and if he said what Morgan says he said, he’s two-thirds of the way to confessing to a felony—actually, a vast number of felonies.
Assuming that his website posted erotic pictures (which would be probable cause for the “intent to arouse” element) and mentioned “revenge” (probable cause for the “without consent” element) the State can charge Morgan with a state-jail felony for each image Taylor “let people post” to the website that he maintained.
The court will set separate bail on each case; even at low state-jail-felony bail amounts (say $2,000 per case) the state can keep filing cases until Taylor is broke and no longer has the resources to get out. How many images were there on texxan.com? 5,000? 10,000? If he wants to make $20,000,000 bail, he’ll need $21,000,000 in cash, because no bondsman in Texas is going to touch that bond without full collateral.
Each case will have a two-year maximum day-for-day sentence, but the State will have to try Taylor separately for each case they want run consecutively; if they try cases together the sentences will be concurrent. Taylor will (presuming that he has no felony convictions) be eligible for probation. If he gets probation, the trial court can set conditions of probation, including up to 180 days in jail—again, day-for-day.
Indicting Taylor is not rocket surgery: “On or about some date in the last three years, in some county in Texas, he transmitted a visual image of another, without that person’s consent, with the intent to arouse or gratify someone’s sexual desire. Against the peace and dignity of the State. Signed, foreman of the grand jury.”
True, I think the statute is unconstitutional. And Morgan can certainly argue that the statute violates the First Amendment, either while he’s sitting in an East Texas jail (if he’s curious about the timeframe, the fight I’m having over the unconstitutionality of Texas’s online-solicitation-of-a-minor statute has been going on since 2010), or after he’s a convicted felon.
Hell, I’ll even argue it for him pro bono, as long as he hires someone else to handle the substantive case. I’m just the law man.
The problem with revenge porn is that it is nonconsensual—the nasty sequelae are just the icing on that cake—and Texas’s improper-photography statute cuts right to that point.
So let’s stop letting the law profs show how little First Amendment law they know and digging states into ever-deeper constitutional morasses; it’s embarrassing to everyone. No, let’s hash out the constitutionality of statutes forbidding revenge porn here and now.
After the trial court we’ll go to the Beaumont Court of Appeals, then the Texas Court of Criminal Appeals if they’ll grant review, and the Supreme Court if they will.
The law is in place, the defendant is in place, and the complaining witnesses—plaintiffs in the suit against texxxan.com—are organized and willing to show their faces.
And whether Taylor can afford to mount a proper First Amendment attack on the statute or not, charging him with a bunch of cases will at least give his victims the satisfaction of seeing him cool his heels in jail for a while.
That’s worth something.
[Update: Cathy Gellis has pointed out that Section 230(c)(1) and (e)(3) of the Communications Decency Act, 47 USC 230, would eventually dispose of a state prosecution against Taylor, though he might still have to sit in jail while the issue gets resolved in the appellate courts. That would stymie the goal of getting the constitutionality of the statute tested.
Surely one of the victims of texxxan.com has some proof that a particular ex-boyfriend uploaded her images; that boyfriend could not avail himself of the Section 230 defense, and so would be a better test defendant.]
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