'Revenge porn' law poised for appeal to Texas high court

This picture taken on July 24, 2017 shows an employee of Santa Cruise "digital laundry" company monitoring a computer screen to find "revenge porn" at the company in Seoul. The company is tasked with taking down videos posted without consent -- including so-called "revenge porn." In hyper-wired South Korea, 7,325 requests to have intimate videos removed from the internet were made in 2016, according to government figures, a sevenfold increase in only four years. / AFP PHOTO / JUNG Yeon-Je / TO GO WITH AFP STORY SKOREA-TECHNOLOGY-CRIME-GENDER,FEATURE BY JUNG HA-WONJUNG YEON-JE/AFP/Getty Images less This picture taken on July 24, 2017 shows an employee of Santa Cruise "digital laundry" company monitoring a computer screen to find "revenge porn" at the company in Seoul. The company is tasked with taking ... more Photo: JUNG YEON-JE, AFP/Getty Images Photo: JUNG YEON-JE, AFP/Getty Images Image 1 of / 1 Caption Close 'Revenge porn' law poised for appeal to Texas high court 1 / 1 Back to Gallery

AUSTIN — An East Texas appeals court is refusing to rehear a case questioning the constitutionality of the state's "revenge porn" law, setting up a likely showdown between free speech and privacy at state's top criminal court.

The 12th Court of Appeals in Tyler on Tuesday rejected a request from Galveston County district attorneys and the Texas attorney general to rehear a case that led the court to strike down a state law making it a crime to share certain nude images if the person pictured had reason to believe the images would stay private.

MORE: Texas’ ‘revenge porn’ law struck down by state appeals court

Is issue is whether the law unconstitutionally infringes the free speech rights of someone who shares the image if they had no knowledge that the person pictured expected the image would stay private. According to the court, the law makes that person culpable, although the state argues that person is held harmless.

"We have to protect all speech in order for any speech to be reliably protected," said Mark Bennett, a Houston 1st Amendment attorney representing Jordan Bartlett Jones, who is accused of intentionally disclosing a photo showing a woman's genitals and revealed her identity, although she had reasonable expectation the picture would stay private.

"Some of that speech that we have to protect is pretty obnoxious stuff. It is pretty reprehensible. Sometimes it's vile, but only by protecting the vile speech can we make sure our children and our children's children are still going to have the opportunity to engage in the important speech," said Bennett.

The state plans to petition the Court of Criminal Appeals to review the case, said Alan Curry, assistant criminal district attorney for Galveston County.

"We fully expect this would have to be decided by the high court in Austin," he said.

Thirty-eight states have some sort of "revenge porn" law, according to the Civil Cyber Rights Initiative.

Texas lawmakers passed the "Relationship Privacy Act" in 2015. Violation of the law is a Class A misdemeanor punishable by up to one year in jail and up to $4,000 in fines.

Andrea Zelinski covers politics for the Houston Chronicle. Read her story about the state's case defending the "revenge porn" law. Follow her on Twitter and Facebook. Send her tips at andrea.zelinski@chron.com.