Can Taking a Harmless Photograph Make You a Criminal?

The Spring/Summer 2012 issue of ARCA’s Journal of Art Crime is out. Donn Zaretsky’s column looks at whether the state of Texas can make otherwise harmless photographs illegal if the photographer had the wrong intent when he took them.

Just as a statute criminalizing harassment by telephone (which will typically involve speech) does not violate the First Amendment because it focuses on the actor’s intent (in that case, “to inflict emotional distress”), this [Texas] statute regulates “a person’s intent in creating a visual record,” as distinct from “the contents of the record itself.”

The law at issue is Texas Penal Code § 21.15.

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