A couple weeks ago, Judge James Ho used a concurrence to complain that it’s unfair that people accuse judges of auditioning for promotions. Late last week, he wrote a dissent as part of his audition for a promotion.
On Friday, the Fifth Circuit voted 10-7 against an en banc rehearing of Evans v. Garza. This case involved a woman seeking to block a potential prosecution against her for — checks notes — posting a surreptitious picture of someone in a bathroom. Because, you know, the First Amendment should protect bathroom candids!
In May 2023, Michelle Evans, a Texas GOP activist, went to a Texas House debate about gender-affirming care for minors. In the Capitol’s women’s restroom, she encountered a trans woman who was running for the Texas House at the time. After confronting the candidate outside the restroom, Evans went back to the gallery, where a seatmate showed her a Facebook photo that someone from their group had taken of the candidate washing her hands at the sink. Evans then posted it to Twitter, racking up some 1.6 million views.
The Texas Penal Code § 21.15(b) made it a state jail felony to photograph or transmit “a visual image of another in a bathroom or changing room” without consent and “with intent to invade the privacy of the other person.” The local prosecutor opened an investigation based on the fact that Evans… did that. Evans, backed by Elon Musk’s X, sued to block any prosecution on First Amendment grounds.
This seems like a pretty good law to have! Judge Priscilla Richman, concurring in the denial, explained why the statute makes this an easy case:
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 challenged the law on its face, which Richman describes as a non-starter because “it is highly unlikely that there is a First Amendment right to distribute, without their consent, images of a person’s genitalia (whether they be an adult, infant, pre-teen, or teen) while utilizing bathroom facilities.” As for an as-applied challenge, Evans argued that, despite the broad language of the statute, it shouldn’t apply once a person left the stall and stands at the sink.
Adult lawyers argued that maybe some parts of the bathroom should be fair game for photographs. Richman asked “as to urinals, does the First Amendment say cameras can click once the pants or trousers are zipped?” before opting not to rewrite the statute on this one.
But Judge Ho saw an opportunity. In dissent, Ho frames the facts as an attempt to stifle conservative speech, as though we make laws against creepers installing cameras in bathrooms to oppress conservatives:
After all, the photo depicts the individual in question in precisely the same way that that person chooses to present himself in public. So if that’s a violation of privacy, then we have truly lost all understanding of the word.
A creeper snapping pictures of a teen girl in the bathroom would also show her in the way she presents herself in public, but that doesn’t make it okay. Ho leads off his dissent lamenting that the law should apply equally to everyone, though he declines to grapple with the logical conclusion of opening the door to start snapping away inside bathrooms. Meanwhile, Richman actually put in the effort to explain what it would mean to apply Ho’s standard evenly.
Presumably — or at least hopefully — Ho doesn’t actually believe that this law should be struck down to open the door to every pedophile on free speech grounds. But it’s a convenient hook for him to draft a Townhall blog post masquerading as a judicial opinion and that’s what it takes to stay atop the potential Supreme Court promotion power rankings.
One of Ho’s principal rivals in those power rankings, Judge Andy Oldham, wrote his own dissent. “Travis County District Attorney Garza wanted to prosecute Michelle Evans over a tweet,” he writes, before citing a story about Pakistani human rights lawyers sentenced to 17 years for social media posts. I’m not sure the human rights lawyers put in jail for calling out their government for running a terrorist state presents an apples-to-apples comparison to taking stealthy bathroom pics, but Oldham swings for the fences.
If Ho’s opinion reads as a blog post, Oldham reached for a book report of The Trial:
Kafka’s Inspector said, “I can’t even confirm that you are charged with an offense, or rather I don’t know whether you are. You are under arrest certainly, more than that I do not know.” . . . That was not supposed to be an instruction manual.
Ooh, Kafka. How literary! While Kafka’s protagonist was placed under arrest and tried for an unknown charge, Evans was… none of those things. The local prosecutor investigated the case, but Evans was never arrested or charged or put on trial. She sought an injunction against potential prosecution herself and, at the end of the day, this case died because the prosecutor told the court that the office isn’t moving forward with anything anyway.
So Oldham’s opinion adopts the same flawed frame as Ho’s:
Never mind that the tweet constituted political speech. And never mind that criminally charging social-media users for core political speech is tragicomically unconstitutional in this country.
The problem was never political speech, the problem was YOU CAN’T POST PICTURES OF PEOPLE IN BATHROOMS. It doesn’t become legal to traffic in bathroom pics just because someone slaps a political excuse on it.
Oldham likes to posture as “the reasonable one” in the SCOTUS race compared to fellow hopefuls like Ho and the Ninth Circuit’s VanDyke, but he’s really the same except he wants you to know he’s the kind of guy who read his senior year English assignments.
Anyway, back to Ho. Because here’s the most bizarre part of his audition:
I’m well aware that today’s decision captures the cultural zeitgeist of societal elites. Just a few months ago, the Supreme Court used a female pronoun to describe the male plaintiff in the caption of its decision in West Virginia v. B.P.J.
Does this case have anything to do with the B.P.J. case other than tangentially involving a trans person? No. Indeed, the Supreme Court sided with the conservatives in that case. This case isn’t even really about trans rights, it’s about whether there’s a First Amendment exception to posting bathroom pictures if the plaintiff asserts a First Amendment interest in pictures of people taking a piss. But Ho’s clearly been hankering to go on a tirade about the Supreme Court accepting the caption rather than taking the symbolic act of unilaterally changing it. The conservative legal movement is just style over substance all the way down.
This reads like Ho had this cooked up for a caption that actually involved a pronoun dispute, but then the Alito retirement chatter convinced him that perfect could not be the enemy of the good and he decided this was a good enough hook to hang this on. All so he could send the message that most of the conservatives on the Supreme Court are liberal squishes, but that Ho would be willing to stand up to the scourge of living with a caption.
So I’m grateful to have this opportunity to dissent. I only regret that we could not extend that same privilege to Michelle Evans.
Evans dissented to 1.6 million people — Richman even adds that, aside from everything else, Evans could’ve conveyed the exact same message without the picture — and the only repercussion she faced was temporarily handing over her phone.
When Ho complained that there’s no way for a judge to refute the charge that he’s auditioning, he overlooked one option. Stop sending in tapes.
(Full opinion on the next page…)
Earlier: James Ho Uses Opinion To Whine About People Accusing Judges Of Auditioning For Promotions
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.
The post James Ho Demands First Amendment Right To Post Covert Bathroom Pics appeared first on Above the Law.