Offense becomes misdemeanor under new law, carries up to $500 fine

A Texas law was passed this month outlawing sending unsolicited lewd photos electronically, but has the potential to be challenged and ruled as unconstitutional. 

The new law, which took effect on Sept. 1, classifies the electronic transfer of unsolicited nude photos as a Class C misdemeanor and punishable by a fine of up to $500. Drafted by Republican House member Morgan Meyer, the bill was initiated by Whitney Wolfe Herd, founder and CEO of Texas-based dating app Bumble. According to an email statement to The Mercury from Meyer, Herd approached him about the prevalence of unsolicited nudes being sent on Bumble and the fact that there was no law to deter people from it at the time.

Bumble Chief of Staff Caroline Ellis Roche said Herd testified on behalf of Bumble in front of the Texas House and Senate on the issue. Roche said the team at Bumble started working on getting the bill to the legislature one year ago, and that this was the first piece of legislation that the company has ever backed.

“Quite frankly, the digital world is a wild, wild west and the laws we have in place in the physical world have not quite caught up with the digital world yet,” Roche said. ”This bill that we have been championing … does that. It is taking something that was always illegal — flashing or exposing yourself in public, which is punishable by jail time — to creating it so that there’s a law that makes that action illegal online.”

Roche said the law should deter people from sending unsolicited nudes and that it is now on the individual to work with the police on enforcing the law when they receive unsolicited lewd photos. 

“We really view this bill as a deterrent, so just as there are stop signs and speed limits in the physical world, we see this as serving that same purpose in the digital world,” Roche said. 

In a survey of 122 students done by The Mercury, 33% of respondents said they received an unsolicited lewd photo during their time at UTD. Out of that 33%, none of them reported the person who sent the photo. The top three platforms where they received the photo were Snapchat, over text or through online dating apps. 

Director of the Student Wellness Center Kacey Sebeniecher said she wasn’t surprised to know none of the respondents were reporting the people sending these types of photos. Previously, this type of behavior would be reported to the Title IX office, but now can be reported directly to the police. She said the center hosts campus-wide events and trainings to educate students on the definition of consent and sexual harassment through social media, and now this law will be mentioned in the programs. 

  “Our policy already reflects a lot of that terminology in that sending those types of photos is considered sexual harassment,” Sebeniecher said. “But we will definitely be talking about the legal aspect of it now because before, that wasn’t necessarily breaking the law and the law was very loose and now it’s more clear that that’s an illegal act.”

Sebeniecher said she hopes that laws like this will prevent people from sending unwanted pictures to others and make people more aware that it is considered sexual harassment to do so. She said that people who are victims of this behavior have support available and can get help at the Student Counseling Center.

“Nude photos aren’t a bad thing, but you have to have consent and (make sure) you’re sending them to people who are wanting them and accepting them,” Sebeniecher said. “And if you’re not, you could be violating them. I don’t think people realize when they’re sending it as a joke or think they’re being funny, there’s another person on the end of that that could be harmed by it.”

However, the law raises questions about the possibility of regulating the internet and social media. Thomas Grey, assistant professor of political science, said it’s likely that this law will be ruled as unconstitutional for being  too broad. Texas’ revenge porn law passed in 2014 was ruled unconstitutional by the Texas Court of Appeals in 2016 for the same reason. Grey said in addition, there are multiple ways this law could be violated that aren’t generally perceived as unsolicited nude photos, such as photos of bikini-wearers or body parts being sent to doctors for inspection.

“Can we imagine a scenario in which this law punishes something we don’t want to punish? And if we find that there’s just too much of that, then we could say that the law is overbroad. It’s going to punish people for things that we don’t actually want to punish them for,” Grey said. “So in this case, there’s actually quite a lot of potential for that in the law that you referenced to me. I have a hard time believing judges won’t find it to be overbroad. That also seems to be what most First Amendment lawyers in Texas think, that this is going to be sort of overbroad and, and eventually struck down if it’s ever even enforced.”

Grey said because of the difficulty in enforcing this type of law, there is a likelihood of it being challenged by someone accused of sending an unsolicited nude and ruled unconstitutional. He said laws like these mainly serve as a way for the state to send a message to people exhibiting this sort of behavior.

“My guess is, as with a lot of these things, they were just happy for the symbolism, right? And my guess is they just went with something short and simple and that everybody agreed on,” Grey said. “The state does not want people doing this and that’s probably the message they want said. They didn’t actually intend to have a bunch of cops out there arresting people.”

In a statement from Meyer, he said the action of sending unsolicited nude photos is becoming a larger issue among teenagers and young adults, and that lawmakers wanted to establish that the action isn’t acceptable by making it a punishable offense. 

“I have two daughters who are entering the age where they will be on social media, and the thought of this type of harassment happening to them scared me,” The statement said. “I’m proud that this bill was signed into law and hope that it sends a clear message that harassment of any kind will not be tolerated in Texas.”