KBTX Legal Analyst: 'If another attorney doesn't challenge this law, I will'

Published: Aug. 26, 2019 at 5:29 PM CDT
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A Brazos County defense attorney is calling a new state law "overbroad and unconstitutional."

The law, set to go into effect in Texas on Sept. 1, criminalizes the sending of "unsolicited sexually explicit material"--basically, unwanted nude photos.

The statute covers all forms of electronic communication, such as texting, email, and social media.

"I understand the reasoning behind it: nobody likes to get these images unsolicited," said Shane Phelps, BCS-based defense attorney, and KBTX legal analyst. "But the law as it's written is overbroad and vague, and it implements the First Amendment in such a way that it is almost certain to be struck down."

On First News at Four, Phelps broke down the pros and cons of the law as he sees it. See the video player above for the full conversation.

"It's going to be difficult to enforce, except it's going to be complaint-driven, meaning somebody is going to receive one of these images, contact the police, and the police are going to have to invest those resources," said Phelps--and all for a class C misdemeanor, punishable by only a $500 fine. "Just doesn't have an aggressive bite to it."

Lawmakers said they hoped this would serve as a deterrent to those considering sending an unwanted nude photo. Phelps says he isn't sure it will even get that far.

"There is no question that we will see a legal challenge," Phelps said. "If one of the thousands of defense attorneys across the state of Texas doesn't do it, then I will."

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