From Fifth Circuit Judge Priscilla Richman, concurring in the 10-7 vote to deny rehearing en banc in Evans v. Garza (for more on last year's panel opinion, see here):
The statute under scrutiny made it a crime to disseminate a photograph of a person in a restroom under certain circumstances. The photo that Michelle Evans tweeted undoubtedly punctuated her political speech that accompanied the photo. But Michelle Evans could have conveyed her political views without publishing the photo. The Texas statute did not impinge at all on Evans's ability to broadcast to the world that she saw a biological male who is transgender, and who was also a political candidate, use a women's public restroom at the Texas Capitol complex, and to express her strong political views that this should not be permitted.
The question is whether it is likely (since we are at the preliminary injunction stage) that a state has a compelling interest in protecting a person's expectation of privacy in a restroom that is sufficient to outweigh First Amendment free speech rights under the facts of this case. I submit that the answer is "yes."
Evans attended a debate in the Texas House of Representatives at the Texas Capitol about gender reassignment treatment for children. When she visited the women's restroom, she encountered a biological male who is a transgender female, and who was at the time running for election to the Texas House of Representatives. Texas law did not prohibit a biological male who identifies as a female from using a women's restroom….
Evans then returned to her seat in the Capitol gallery, where one of her seatmates showed her that someone else from their group had posted on Facebook a photo of the candidate washing their hands in the women's restroom. Evans posted the photo on Twitter with a caption:
Evans's tweet generated a controversy, and the Travis County District Attorney, José Garza, investigated whether Evans had violated Texas Penal Code § 21.15(b). This statute criminalized—as a state jail felony—transmitting "a visual image of another in a bathroom or changing room" or promoting such a transmission if the action is done without consent and "with intent to invade the privacy of the other person."
Evans has not been prosecuted, but she sought a temporary restraining order and preliminary injunction in federal court prohibiting Garza from investigating or prosecuting her based on her dissemination of the photograph…. Evans maintains that when the subject of the photograph is "not in a private area of the bathroom and knows they are subject to public view," specifically, when they are "fully clothed, at a sink, washing their hands," others in the restroom have a First Amendment right to photograph the subject, and Evans has a First Amendment right to distribute that photograph. The question is whether the State has an interest in protecting the privacy of those using public restrooms that is sufficient to survive strict scrutiny when the person is photographed fully clothed washing their hands.
No one disputes that a person has a privacy interest not to be photographed in their own home without their permission, certainly not when the intent is to use the photograph to invade the person's privacy. But what happens when a person leaves their home and enters public spaces in a government building? When nature calls, it is unrealistic to think that the person can make it back home to use their own bathroom (which may be in another city or state) or find some other private restroom.
A public restroom has been considered as a practical matter "off limits" to the press once someone crosses its threshold. Traditionally, neither a private citizen nor the press follows a person into a restroom to pursue questioning or to obtain photographs. That is considered, as a matter of tradition, "beyond the pale."
Evans argues, though, that in the case before us, the person who was photographed had left the privacy of a stall to use the sink and therefore should be fair game. This would allow people engaged in a number of activities outside restroom stalls to be photographed without their consent. Outside the confines of a stall, people attend to all sorts of personal needs. Mothers change babies' diapers or nurse them. People adjust clothing or undergarments or change outfits entirely. They dab water on spills on their clothing, perhaps taking off a blouse or shirt or trousers, or hiking up a skirt. Some public bathrooms have sitting areas with couches or other lounge furniture in case a person feels the need to lie down.
Do these activities outside a stall subject people to being photographed without their consent, including surreptitiously, as long as certain body parts are not visible? Is there no constitutional protection when the photograph is taken or disseminated with the intent to invade the privacy of the person?
Does the constitution draw the line at the door to a stall in a women's or men's restroom for purposes of photographing someone? Does the First Amendment require that, once a person exits a stall, mobile phones and cameras may come out? As to urinals, does the First Amendment say cameras can click once the pants or trousers are zipped? Can the press or anyone seeking to photograph celebrities or public figures or other persons of interest enter or even crowd the restrooms of public buildings waiting for the chance to capture the moment the targeted person enters or exits a stall or turns away from a urinal? What of the ordinary person who is also in the restroom and of no interest to the press or to a private citizen on a politically motivated mission? Must the non-targeted individual navigate the press or other photo seekers?
The Texas Legislature reached the considered judgment that everyone, be it the Governor, a member of the Texas House or Senate, a state or federal judge, a political activist, a tourist, or a child, should have protection from being photographed without their consent when in a restroom, when the intent is to invade their privacy. This is a substantial, legitimate state interest.
Evans is not likely to succeed on her claim that strict scrutiny requires states to draw the line at the point when a person has left a stall or finished using a urinal or might otherwise have ceased to be in a position in which their genitalia would be visible. A public restroom in a government building is analogous to a bathroom in one's home. It is a place that sometimes must be frequented to attend to bodily functions that cannot be ignored and to attend to other personal matters normally addressed in a restroom. To say that a person has an expectation of freedom from being photographed only when that person's genitalia might be exposed would confine the right to privacy and seclusion too narrowly.
