Texas' highest criminal court on Wednesday ruled that the state law again revenge porn does not violate the First Amendment.

Credit: Photo illustration by Miguel Gutierrez Jr. / The Texas Tribune

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Texas’ “revenge porn” law, which makes it a misdemeanor to post someone’s private photos online without their consent, does not violate the First Amendment, according to a Texas Court of Criminal Appeals ruling Wednesday.

The ruling by the state’s highest criminal court overturns a lower court’s 2018 ruling that the law was unconstitutional.

The 2015 law made posting someone’s intimate photos to the internet without their permission a crime, punishable by up to a year in jail and a $4,000 fine. In 2018, the 12th Court of Appeals in Tyler ruled that the law violated the First Amendment and asked a lower court to dismiss charges against a man who was awaiting trial for posting a woman’s private photos online without her consent.

The law, Chief Justice James Worthen then wrote, “is an invalid content-based restriction and overbroad in the sense that it violates rights of too many third parties by restricting more speech than the Constitution permits.”

According to Wednesday’s ruling by Court of Criminal Appeals Presiding Judge Sharon Keller and Judge Kevin Yeary, even though the law is a content-based restriction, it is not overbroad because it is tailored to a specific government interest — protecting sexual privacy.

In order for someone to be charged under the law, the state would have to prove that the offender intentionally posted photos that were intended to be kept private, knew they did not have permission to post the photos and posted photos that identified the person depicted, the Court of Criminal Appeals ruled. The law would not apply to someone who unknowingly shared certain images, the ruling added.

“The statute, as properly construed, is not overbroad,” the ruling states.

Most other states also have “revenge porn” laws in place. Texas’ law “was crafted carefully to focus on only the worst and verifiable behavior that sexually defames its victims,” according to the bill’s author, then-state Sen. Sylvia Garcia.

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