                                Fourth Court of Appeals
                                       San Antonio, Texas
                                               OPINION
                                           No. 04-13-00127-CR

                                   EX PARTE Ronald THOMPSON

                      From the 379th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2012-CR-1148-W2
                             The Honorable Ron Rangel, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 30, 2013

REVERSED AND REMANDED

           Appellant Ronald Thompson was arrested and charged with twenty-six counts of improper

photography or visual recording in violation of section 21.15(b)(1) of the Texas Penal Code,

commonly known as the “improper photography” statute. This is an appeal from the trial court’s

denial of Thompson’s pretrial application for writ of habeas corpus, which alleged section

21.15(b)(1) is unconstitutional on its face because it violates both the First Amendment to the U.S.

Constitution and Article 1, Section 8 of the Texas Constitution. We reverse and remand.

                                              BACKGROUND

           Because this appeal presents a facial challenge to a statute, a detailed rendition of the facts

is unnecessary for its disposition. We therefore provide only a brief procedural history.
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          On July 16, 2011, Thompson was arrested and charged with improper photography. On

January 22, 2013, Thompson filed a pre-trial “Application for Writ of Habeas Corpus Seeking

Relief from Facially Unconstitutional Statute.”

          On January 25, 2013, the trial court denied Thompson’s application for writ of habeas

corpus without a hearing. On March 7, 2013, the trial court issued an order clarifying that it

considered and denied Thompson’s application based on the merits. Thompson then perfected this

appeal.

                                                   ANALYSIS

          Section 21.15(b)(1) of the Texas Penal Code provides as follows:

          A person commits an offense if the person: (1) 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: (A) without the other
          person’s consent; and (B) with intent to arouse or gratify the sexual desire of any
          person.

TEX. PENAL CODE ANN. § 21.15(b)(1) (West 2011) (emphasis added). Thompson argues this

section of the penal statute is facially unconstitutional because it: (1) impermissibly regulates the

content of speech, and is both (2) overly broad and (3) vague. Therefore, Thompson contends the

statute violates the First Amendment to the U.S. Constitution and Article 1, Section 8 of the Texas

Constitution. 1

                                             Standard of Review

          A claim that a statute is unconstitutional on its face may be raised by a pretrial writ of

habeas corpus. Ex Parte Weise, 55 S.W.3d 617, 620 (Tex. Crim. App. 2001). Habeas corpus pre-




1
 Thompson does not argue or provide authority establishing that his protection under the Texas Constitution exceeds
or differs from that provided to him by the U.S. Constitution. Therefore, we only address his federal claim. See
Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993).

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conviction proceedings are separate criminal actions, and the applicant has the right to an

immediate appeal before trial begins. Greenwell v. Court of Appeals for the Thirteenth Judicial

Dist., 159 S.W.3d 645, 650 (Tex. Crim. App. 2005).

         We review a trial court’s decision to grant or deny an application for writ of habeas corpus

under an abuse of discretion standard. See Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim.

App. 2006); Ex parte Perusquia, 336 S.W.3d 270, 274 (Tex. App.—San Antonio 2010, pet. ref’d);

Ex parte Nyabwa, 366 S.W.3d 719, 723 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). 2,3

However, when the trial court’s ruling and determination of the ultimate issue turns on the

application of the law, such as the constitutionality of a statute, we review the trial court’s ruling

de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003), overruled in part on

other grounds by Ex parte Lewis, 219 S.W.3d 335, 371 (Tex. Crim. App. 2007); Ex parte

Perusquia, 336 S.W.3d at 275; Nyabwa, 366 S.W.3d at 723 (citing Rivera v. State, 363 S.W.3d

660, 666 (Tex. App.—Houston [1st Dist.] 2011, no pet.).




2
  We note the 14th Court of Appeals in Nyabwa attempted to withdraw its December 13, 2011 opinion and issue
another one on February 7, 2012. See Ex Parte Nyabwa, 366 S.W.3d 710, 711 (Tex. Crim. App. 2012) (per curiam).
However, the Texas Court of Criminal Appeals held the February 2012 opinion was untimely and unauthorized under
Rule 68.7 of the Texas Rules of Appellate Procedure, and ordered the court to reinstate the original judgment and
December 2011 opinion. See id. at 712. Nyabwa is the only published case that has addressed and upheld the
constitutionality of the “improper photography” statute. See 366 S.W.3d at 723. There are, however, two unpublished
cases that upheld the constitutionality of the statute prior to Nyabwa. See Vasquez v. State, No. 05-06-00486-CR,
2007 WL 1054146 (Tex. App.—Dallas April 10, 2007, pet. ref’d); State v. Calvo, No. 08-05-00002-CR, 2006 WL
2634733 (Tex. App.—El Paso Sept. 14, 2006, pet. ref’d). The Texas Court of Criminal Appeals refused discretionary
review in all three cases. In relation to Nyabwa’s petition, Presiding Judge Keller wrote a dissenting opinion, stating
she would have “grant[ed] review to address whether the statute violates the First Amendment.” See Nyabwa, 366
S.W.3d at 712 (Keller, P.J., dissenting).
3
  After pleading guilty to three counts of improper photography in state court, Nyabwa filed a federal habeas petition
requesting the district court strike his conviction on grounds that section 21.15(b)(1) of the Texas Penal Code violates
the U.S. Constitution. See Nyabwa v. Thaler, No. H-12-1152, 2012 WL 4434733, at *1 (S.D. Tex. Sept. 22, 2012).
The district court dismissed Nyabwa’s petition, holding he had not exhausted his state remedies, and denied a
certificate of appealability holding Nyabwa “ha[d] not made a substantial showing that reasonable jurists would find
the Court’s [] ruling debatable.” Id. at *2. The Fifth Circuit vacated the district court’s judgment, and remanded to
the district court, holding Nyabwa exhausted his state remedies, and granted a certificate of appealability holding “the
district court pleadings, the record, and the COA application demonstrate[d] that reasonable jurists could debate
whether [Nyabwa] has made a valid claim of a constitutional deprivation.” Nyabwa v. Stephens, No. 12-20682, 2013
WL 3091894, at *1 (5th Cir. June 20, 2013).

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          We review the constitutionality of a criminal statute de novo. Byrne v. State, 358 S.W.3d

745, 748 (Tex. App.—San Antonio 2011, no pet.). When a statute is attacked upon constitutional

grounds, we ordinarily presume the statute is valid and that the legislature has not acted

unreasonably or arbitrarily. State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). The

burden rests upon the individual who challenges the statute to establish its unconstitutionality. Id.

          However, when the government seeks to restrict speech based on its content, the usual

presumption of constitutionality afforded to legislative enactments is reversed. United States v.

Playboy Entm’t Grp., Inc., 529 U.S. 803, 817 (2000); Nyabwa, 366 S.W.3d at 724. Content-based

regulations are presumptively invalid, and the government bears the burden to rebut that

presumption. Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 660 (2004); Nyabwa, 366

S.W.3d at 724.

           First Amendment Implications: Does the Statute Regulate Protected Speech?

          The free speech protections of the First Amendment are implicated when the government

seeks to regulate protected speech or expressive conduct. See Scott v. State, 322 S.W.3d 662, 668–

69 (Tex. Crim. App. 2010). It is the obligation of the person desiring to engage in allegedly

expressive conduct to demonstrate the First Amendment applies. Clark v. Comty. For Creative

Non-Violence, 468 U.S. 288, 294 (1984).

          Thompson contends the improper photography statute regulates protected speech by

imposing limits on non-obscene photography of a sexual nature. The U.S. Supreme Court has held

photography is a form of speech normally protected by the First Amendment. United States v.

Stevens, 559 U.S. 460, 130 S.Ct. 1577, 1584, passim (2010); Regan v. Time, Inc., 468 U.S. 641,

648, passim (1984). Furthermore, sexual expression that is indecent but not obscene is also

protected by the First Amendment. See Sable Commc’ns of Cal., Inc. v. F.C.C., 492 U.S. 115, 126

(1989).
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          The court in Nyabwa held section 21.15(b)(1) of the Texas Penal Code was “not a

regulation of speech or expression, but rather of the intent of the photographer.” 4 In reaching its

holding, the court discussed Scott v. State, 322 S.W.3d 662 (Tex. Crim. App. 2010), where the

court of criminal appeals concluded a telephone harassment statute did not implicate the free

speech guarantee, even though the conduct included spoken words, where the statute focused on

the actor’s intent to inflict emotional distress and not to legitimately communicate ideas, opinions,

or information. See Nyabwa, 366 S.W.3d at 725–26. The court held that in the same way, the

improper photography statute regulates a person’s intent in creating a visual record and not the

contents of the record itself. See id. at 726. We respectfully disagree.

          First, we hold the statute addressed in Scott is distinguishable from the improper

photography statute. In Scott, the court held the telephone statute did not implicate the free speech

guarantee of the First Amendment because it was directed only at persons with the “specific intent

to inflict emotional distress, repeatedly use the telephone to invade another person’s personal

privacy and do so in a manner reasonably likely to inflict emotional distress.” 322 S.W.3d at 670.

The court held the statute regulated “noncommunicative” conduct because it did not include “an

intent to engage in the legitimate communication of ideas, opinions, or information; [it] will have

only the intent to inflict emotional distress for its own sake.” Id. In other words, it was the lack

of a legitimate intent to communicate which made the conduct regulated “noncommunicative.”

See id.

          In contrast, we hold the statutory subsection challenged by Thompson, section 21.15(b)(1)

of the Texas Penal Code, regulates protected speech as opposed to “noncommunicative” conduct.


4
  Although the court held the statutory subsection did not regulate speech, the opinion states: “Texas Penal Code
section 21.15(b) neither limits photography because of the ideas expressed nor favors one type of photograph over
another; therefore, the statute is content-neutral.” See Nyabwa, 366 S.W.3d at 725. As a result, the court seemingly
agrees the statute regulates speech, that is, photography, but does it in a “content neutral” manner. See id.

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The statute specifically restricts an individual from taking, recording, broadcasting, or transmitting

photographs of others in public places—places other than a bathroom or private dressing room—

when the individual has the intent to “arouse” or “gratify” someone’s sexual desires. See TEX.

PENAL CODE ANN. § 21.15(b)(1). Therefore, the statute not only restricts an individual’s right to

photograph, a form of speech protected by the First Amendment, see Stevens, 130 S.Ct. at 1584,

but the statute also restricts a person’s thoughts, which the U.S. Supreme Court has held is “wholly

inconsistent with the philosophy of the First Amendment.” See Stanley v. Georgia, 394 U.S. 557,

565–66 (1969) (holding government does not have right to control moral content of person’s

thoughts).

       Furthermore, unlike the statute in Scott, subsection 21.15(b)(1) does not require an “intent”

to “invade another person’s personal privacy.” See Scott, 322 S.W.3d at 669. In fact, that

requirement is found in subsection 21.15(b)(2)—which penalizes an individual taking photographs

with the intent to “invade the privacy of the other person”—but is not found in subsection

21.15(b)(1). Compare TEX. PENAL CODE ANN. § 21.15(b)(1) (requiring individual have intent to

arouse or gratify sexual desire of any person) with TEX. PENAL CODE ANN. § 21.15(b)(2) (requiring

individual have intent to invade privacy of another person or arouse or gratify sexual desire of any

person) (emphasis added). Subsection 21.15(b)(1) does not require the person being photographed

even be aware of it. Therefore, unlike the statute in Scott, which regulated “noncommunicative”

conduct (without the legitimate intent to communicate but rather to “inflict emotional distress”),

we hold subsection 21.15(b)(1) restricts protected speech by regulating an individual’s right to

photograph and to have certain thoughts. We also hold the intent requirement, i.e., to have the

“intent to arouse or gratify the sexual desire of any person,” does not render the speech or conduct

regulated “noncommunicative” or unprotected. As Presiding Judge Keller mentioned, “the type



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of intent [the statute] regulates [does] not inherently exempt it from First Amendment protection.”

See Nyabwa, 366 S.W.3d at 712.

      Does the Statute Regulate Speech in a Content-Based or Content-Neutral Manner?

       We must now determine whether the statute regulates speech in a content-based or content-

neutral manner. As a general rule, laws that by their terms distinguish favored speech from

disfavored speech on the basis of the ideas or views expressed are content based, whereas laws

that confer benefits or impose burdens on speech without reference to the ideas or views expressed

are content neutral. Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994). Courts review

content-based laws that suppress, disadvantage, or impose differential burdens on speech because

of its content under a strict scrutiny standard. Id. To uphold content-based laws under this

standard, the government must show: (1) the restriction is necessary to serve a compelling state

interest, and (2) the law is narrowly drawn to achieve that end. Martinez v. State, 323 S.W.3d 493,

504 (Tex. Crim. App. 2010).

       In contrast, content-neutral laws that govern expression but do not seek to restrict its

content are subject to intermediate scrutiny. Turner, 512 U.S. at 642. The U.S. Supreme Court in

United States v. O’Brien set out a four-part test to determine whether content-neutral restrictions

on protected speech are constitutional and valid under the First Amendment. See 391 U.S. 367,

377 (1968); Foster v. City of El Paso, 396 S.W.3d 244, 253 (Tex. App.—El Paso 2013, no pet.)

Under this test, restrictions that are content neutral in time, place and manner are valid, even if

they cause an adverse impact on the exercise of First Amendment rights, provided: (1) they are

within the constitutional power of the government; (2) they further an important or substantial

governmental interest; (3) the asserted governmental interest is unrelated to the suppression of free

expression; and (4) the incidental restrictions on alleged First Amendment freedoms are no greater



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than is essential to the furtherance of that interest. Rivera, 363 S.W.3d at 667 n. 7 (quoting

O’Brien, 391 U.S. at 377).

         Thompson argues subsection 21.15(b)(1) is a content-based restriction because it limits the

type of communication that can be conveyed. However, we hold the plain language of the

subsection 21.15(b)(1) does not “limit” or “restrict” the substantive content of photographs—in

other words, it does not favor one type of photograph over another. See Turner, 512 U.S. at 642.

Rather, the statute limits speech by imposing time, place, and manner restrictions that are unrelated

to content. See Clark, 468 U.S. at 293. Accordingly, we hold subsection 21.15(b)(1) regulates

speech in a content-neutral manner, requiring intermediate scrutiny. See id.

     Does the Statute Reach a Substantial Amount of Constitutionally Protected Conduct?

         Having held the statute regulates speech in a content neutral manner, we must now

determine whether the statute meets the four-part O’Brien test. See Combs v. Tex. Entm’t Ass’n,

347 S.W.3d 277, 286 (Tex. 2011); Foster, 396 S.W.3d at 253.

         Thompson contends the statute does not meet any of the factors in the O’Brien test. 5 First,

Thompson argues the Legislature did not have power to enact the improper photography statute

because, as written, the statute violates First Amendment protections and is void on its face. See

U.S. CONST. amend. I (“Congress shall make no law . . . abridging the freedom of speech.).

Thompson also contends the State does not have an important governmental interest in enacting

the statute. The statute’s legislative history shows the Legislature’s intent in enacting Section

21.15 of the Penal Code was to create “an offense prohibiting the covert photography or visual

recording of another for an improper sexual purpose.” See Acts of 2001, 77th Leg., R.S., ch. 458,


5
 Although Thompson did not explicitly address the O’Brien factors in his briefing, we liberally construe his arguments
as they apply to the O’Brien test. See Burnett v. Sharp, 328 S.W.3d 594, 598 (Tex. App.—Houston [14th Dist.] 2010,
no pet.) (holding court must construe pleading liberally in pleader’s favor and construe petition to include all claims
that reasonably may be inferred from language used in petition).

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§ 1, 2001 Tex. Gen. Laws 893; see also HOUSE COMM. ON CRIMINAL JURISPRUDENCE, BILL

ANALYSIS, Tex. H.B. 73, 77th Leg., R.S. (2001). In 2003, the Legislature amended the statute and

clarified its intent to protect non-consenting individuals from an offensive invasion of their

privacy. See Acts of 2003, 78th Leg., R.S., ch. 500, § 1, 2003 TEX. GEN. LAWS 1771; see also

HOUSE COMM. ON CRIMINAL JURISPRUDENCE, BILL ANALYSIS, Tex. H.B. 1060, 78th Leg., R.S.

(2003). We hold the government has an important interest in protecting its citizens from covert

photography that may invade their expectation of privacy. See id.

        Thompson also challenges the third and fourth O’Brien factors—the statute’s

governmental interest suppresses free expression, and the statute significantly restricts alleged

First Amendment freedoms. See O’Brien, 391 U.S. at 377. Specifically, Thompson argues the

statute is “not sufficiently narrow . . . to bring it into the realm of constitutionality.” See Olvera v.

State, 806 S.W.2d 546, 550 (Tex. Crim. App. 1991) (en banc) (citing Perry Education Assn. v.

Perry Local Educators’ Assn., 460 U.S. 37, 45 (1983)) (holding restrictions embodied in content

neutral statute must be narrowly tailored to serve significant government interest while leaving

open sufficient alternative channels of communication).

        Thompson contends the statute is not narrowly tailored to serve an important government

interest, but is overbroad and vague. Thompson argues the statute would criminalize the generally

accepted or legal conduct of photographing or videotaping a person without the subject’s consent.

For example, Thompson points to sexually arousing photographs of celebrities taken by paparazzi

or photographs taken of “a fully-clothed adult walking down a public street.” See Nyabwa, 366

S.W.3d at 712. Because Thompson contends the statute is both unconstitutionally overbroad and

vague, we address the overbreadth challenge first. See Roberts v. State, 278 S.W.3d 778, 790 (Tex.

App.—San Antonio 2008, pet. ref’d); (citing Duncantell v. State, 230 S.W.3d 835, 843 (Tex.

App.—Houston [14th Dist.] 2007, pet. ref’d).
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          A statute is impermissibly overbroad if, in addition to proscribing activities that may be

constitutionally prohibited, it sweeps within its coverage speech or conduct protected by the First

Amendment. Bynum v. State, 767 S.W.2d 769, 772 (Tex. Crim. App. 1989) (en banc); see also

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982); Broadrick

v. Oklahoma, 413 U.S. 601, 615 (1973). Therefore, this court must determine whether the statute

reaches a substantial amount of constitutionally protected conduct—that is, whether “a substantial

number of [the statute’s] applications are unconstitutional judged in relation to the statute’s plainly

legitimate sweep.”      See Stevens, 559 S.Ct. at 1587 (quoting Washington State Grange v.

Washington State Republican Party, 552 U.S. 442, 449 n. 6 (2008)); see also Village of Hoffman

Estates, 455 U.S. at 494. If it does not, the overbreadth challenge must fail. Id.

          The First Amendment prohibits laws that abridge freedom of speech. U.S. CONST. amend.

I. Thompson argues the statute has a substantial impact on free speech because there is no careful

delimitation of criminal conduct, but rather anyone who takes photographs of non-consenting

persons is at risk of violating the law. We agree.

          We first hold the application of the statute would potentially penalize some protected

speech. The State contends the mere fact that we can conceive of some impermissible applications

of a statute is not sufficient to render it susceptible to an overbreadth challenge. See Members of

City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984). Some courts

have held a statute that prohibits intentional conduct is rarely subject to a facial overbreadth

challenge. See Sullivan v. State, 986 S.W.2d 708, 712 (Tex. App.—Dallas 1999, no pet.).

However, we hold this statute is different from other intentional conduct statutes in that it is

“virtually unbounded in its potential application,” see Nyabwa, 366 S.W.3d at 711 (Keller, P.J.,

dissenting), and constitutes a substantial restriction on protected conduct. See Bynum, 767 S.W.2d

at 774.
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       The 14th Court of Appeals held in Nyabwa, and the State argues in this case, that the

specific intent requirement in the improper photography statute renders the statute constitutional

for First Amendment purposes. The State points out that statutes with the “intent to arouse or

gratify the sexual desire of any person” requirement have been upheld. See, e.g., Byrum v State,

762 S.W.2d 685, 687–88 (Tex. App.—Houston [14th Dist.] 1988, no pet.); see also Nyabwa, 366

S.W.3d at 727. However, the difference between the improper photography statute and the statutes

that include the same intent requirement is that those statutes criminalize unprotected, illegal

activity, whereas section 21.15(1)(b) of the Texas Penal Code interferes with a person’s protected

freedoms under the First Amendment, including the right to photography and to have unregulated

thoughts. E.g., compare Byrum, 762 S.W.2d at 687 (upholding statute that prohibits touching of

body parts defined by their anatomical names, if touching is done with specific intent to arouse or

gratify any person’s sexual desire) with Nyabwa, 366 S.W.3d at 711–12 (Keller, P.J., dissenting)

(noting improper photography statute interferes with photography, recognized form of expression

protected by First Amendment, and statute’s intent requirement interferes with protection of

freedom of thought, including freedom to think sexual thoughts).

       “Broad prophylactic rules in the area of free expression are suspect . . . [p]recision of

regulation must be the touchstone in an area so closely touching our most precious freedoms.”

NAACP v. Button, 371 U.S. 415, 438 (1963). Thompson contends the statute requires law

enforcement officers to make subjective judgments regarding the photographer’s intent. In other

words, Thompson argues innocent photographers run the risk of being charged with violating the

statute because the government is attempting to regulate thought, a freedom protected by the First

Amendment. See Stanley, 394 U.S. at 565–66 (1969). We agree.

       It is not enough to say a statute is not overbroad simply because it is directed at conduct

with intent, if the intent portion of the statute regulates freedoms protected by the First
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Amendment. Furthermore, the location identifier of subsection 21.15(b)(1)—at a location that is

not a bathroom or private dressing room—is so broad the statute seems to criminalize conduct in

areas where individuals have no expectation of privacy. See, e.g., Katz v. United States, 389 U.S.

347 (1967); Liebman v. State, 652 S.W.2d 942, 946 (Tex. Crim. App. 1983) (en banc).

           Accordingly, we hold subsection 21.15(b)(1) of the Texas Penal Code does not survive

intermediate scrutiny, and is void on its face because the statute is overbroad, reaching a substantial

amount of constitutionally protected conduct. See Stevens, 559 S.Ct. at 1587. 6

                                                     CONCLUSION

           Based on the foregoing, we hold subsection 21.15(b)(1) of the Texas Penal Code is void

on its face as it fails intermediate scrutiny and violates the First Amendment to the U.S.

Constitution because it is overbroad.                 Accordingly, we reverse the trial court’s denial of

Thompson’s application for writ of habeas corpus and remand this matter to the trial court to enter

an order dismissing the prosecution, i.e. all charges against Thompson on alleged violations of

section 21.15(b)(1) of the Texas Penal Code. See Long v. State, 931 S.W.2d 285, 297 (Tex. Crim.

App. 1996) (en banc) (holding statutory provision is unconstitutionally vague on its face and

remanding case to trial court to enter order dismissing prosecution).


                                                              Marialyn Barnard, Justice

Publish




6
    Based on this court’s holding on the speech content and overbreadth issues, we need not reach the issue of vagueness.

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