Fifth Circuit: Judge Ho Dissents on First Amendment Bathroom Photos

• The Fifth Circuit Court of Appeals denied an en banc rehearing in *Evans v. Garza* by a 10-7 vote.
• The case involves a woman seeking to prevent prosecution for posting a surreptitious photo taken in a bathroom, though the Travis County District Attorney has since stated he no longer intends to prosecute.
• Michelle Evans, a Texas GOP activist and Williamson County Republican Party chair, posted a photo of a trans Texas House candidate taken in a Capitol women's restroom to Twitter, garnering 1.6 million views.
• Judge James Ho dissented, arguing the First Amendment should protect such 'bathroom candids' and covert photography.
• The dissent raises questions about the balance between free speech and privacy rights, particularly regarding images taken in private settings.

Judge James Ho authored a dissenting opinion, arguing that the First Amendment should extend its protections to such 'bathroom candids.'

The Fifth Circuit Court of Appeals recently decided against an en banc rehearing in the case of *Evans v. Garza*, with a 10-7 vote. This decision, rendered on a Friday, leaves in place a prior ruling concerning a woman who sought to prevent potential legal action against her, although the Travis County District Attorney has since stated he no longer intends to prosecute the matter. The underlying dispute centers on the act of publicly sharing a surreptitious photograph taken of an individual within a private restroom setting.

This specific legal challenge arose from an incident in May 2023 involving Michelle Evans, a prominent Texas GOP activist. Evans was present at a Texas House debate focused on gender-affirming care for minors. While at the Capitol, she encountered a trans woman, who was then a candidate for the Texas House, in the women's restroom. Following a confrontation with the candidate outside the restroom, Evans returned to the gallery where another individual from her group displayed a Facebook photo. This image, captured by someone in their party, depicted the candidate washing her hands at a sink.

After being shown the image, Michelle Evans subsequently posted the Texas bathroom photo to Twitter, where it quickly gained significant traction, accumulating approximately 1.6 million views. The legal proceedings that followed prompted Judge James Ho to author a dissenting opinion, arguing that the First Amendment should extend its protections to such 'bathroom candids.' This stance suggests a judicial perspective that could broaden the scope of free speech to include covert photography in spaces traditionally considered private.

Judge Ho's dissent in the *Evans v. Garza* case highlights a tension between individual privacy rights and the expansive interpretation of First Amendment protections for speech, even when that speech involves images obtained without consent in sensitive locations. His argument implies that the act of capturing and disseminating such images, despite their surreptitious nature, falls under the umbrella of constitutionally protected expression, a position that could have far-reaching implications for privacy vs free speech Fifth Circuit jurisprudence.

Just weeks prior to this dissent, Judge Ho had publicly voiced concerns in a concurrence about the perception that judges might be 'auditioning for promotions.' However, his recent dissent, particularly in a case involving James Ho First Amendment bathroom photos, has been interpreted by some as an example of a judge actively seeking higher judicial appointment. The robust 10-7 split in the Fifth Circuit's vote against an en banc review underscores the contentious nature of the legal questions at hand.

The implications of Judge Ho's dissent en banc are significant for lawyers and individuals operating within the Fifth Circuit. Should his interpretation gain broader acceptance, it could reshape how courts balance the right to free expression against personal privacy, particularly in an era where digital content sharing is ubiquitous. The case of *Evans v. Garza* thus serves as a critical point of reference for understanding evolving judicial attitudes towards privacy in public and semi-public spaces.

Lawyers in the Fifth Circuit should be aware of Judge Ho's dissent in Evans v. Garza, as it signals a judicial perspective that could broaden First Amendment protections to include covert photography in private spaces, potentially impacting future privacy litigation or compliance advice regarding public conduct and digital content sharing.

Source: Original reporting via Above the Law