{"id":164954,"date":"2026-10-14T08:14:38","date_gmt":"2026-10-14T16:14:38","guid":{"rendered":"https:\/\/xira.com\/p\/2026\/10\/14\/james-ho-demands-first-amendment-right-to-post-covert-bathroom-pics\/"},"modified":"2026-10-14T08:14:38","modified_gmt":"2026-10-14T16:14:38","slug":"james-ho-demands-first-amendment-right-to-post-covert-bathroom-pics","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2026\/10\/14\/james-ho-demands-first-amendment-right-to-post-covert-bathroom-pics\/","title":{"rendered":"James Ho Demands First Amendment Right To Post Covert Bathroom Pics"},"content":{"rendered":"

A couple weeks ago, Judge James Ho used a concurrence to complain<\/a> that it\u2019s unfair that people accuse judges of auditioning for promotions. Late last week, he wrote a dissent as part of his audition for a promotion.<\/p>\n

On Friday, the Fifth Circuit voted 10-7 against an en banc<\/em> rehearing of Evans v. Garza<\/em><\/a>. This case involved a woman seeking to block a potential prosecution against her for \u2014 checks notes \u2014 posting a surreptitious picture of someone in a bathroom. Because, you know, the First Amendment should protect bathroom candids!<\/p>\n

In May 2023, Michelle Evans, a Texas GOP activist, went to a Texas House debate about gender-affirming care for minors. In the Capitol\u2019s women\u2019s 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.<\/p>\n

The Texas Penal Code \u00a7 21.15(b)<\/a> made it a state jail felony to photograph or transmit \u201ca visual image of another in a bathroom or changing room\u201d without consent and \u201cwith intent to invade the privacy of the other person.\u201d The local prosecutor opened an investigation based on the fact that Evans\u2026 did that. Evans, backed by Elon Musk\u2019s X<\/a>, sued to block any prosecution on First Amendment grounds.<\/p>\n

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:<\/p>\n

\n

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.<\/p>\n<\/blockquote>\n

Evans challenged the law on its face, which Richman describes as a non-starter because \u201cit is highly unlikely that there is a First Amendment right to distribute, without their consent, images of a person\u2019s genitalia (whether they be an adult, infant, pre-teen, or teen) while utilizing bathroom facilities.\u201d As for an as-applied challenge, Evans argued that, despite the broad language of the statute, it shouldn\u2019t apply once a person left the stall and stands at the sink. <\/p>\n

Adult lawyers argued that maybe some parts of the bathroom should be fair game for photographs<\/em>. Richman asked \u201cas to urinals, does the First Amendment say cameras can click once the pants or trousers are zipped?\u201d before opting not to rewrite the statute on this one.<\/p>\n

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:<\/p>\n

\n

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\u2019s a violation of privacy, then we have truly lost all understanding of the word.<\/p>\n<\/blockquote>\n

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\u2019t 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\u2019s standard evenly.<\/p>\n

Presumably \u2014 or at least hopefully \u2014 Ho doesn\u2019t actually believe that this law should be struck down to open the door to every pedophile on free speech grounds. But it\u2019s a convenient hook for him to draft a Townhall<\/em> blog post masquerading as a judicial opinion and that\u2019s what it takes to stay atop the potential Supreme Court promotion power rankings. <\/p>\n

One of Ho\u2019s principal rivals in those power rankings, Judge Andy Oldham, wrote his own dissent. \u201cTravis County District Attorney Garza wanted to prosecute Michelle Evans over a tweet,\u201d he writes, before citing a story about Pakistani human rights lawyers sentenced to 17 years for social media posts. I\u2019m 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. <\/p>\n

If Ho\u2019s opinion reads as a blog post, Oldham reached for a book report of The Trial<\/em>:<\/p>\n

\n

Kafka\u2019s Inspector said, \u201cI can\u2019t even confirm that you are charged with an offense, or rather I don\u2019t know whether you are. You are under arrest certainly, more than that I do not know.\u201d . . . That was not supposed to be an instruction manual.<\/p>\n<\/blockquote>\n

Ooh, Kafka. How literary! While Kafka\u2019s protagonist was placed under arrest and tried for an unknown charge, Evans was\u2026 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\u2019t moving forward with anything anyway. <\/p>\n

So Oldham\u2019s opinion adopts the same flawed frame as Ho\u2019s:<\/p>\n

\n

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.\u00a0<\/p>\n<\/blockquote>\n

The problem was never political speech, the problem was YOU CAN\u2019T POST PICTURES OF PEOPLE IN BATHROOMS. It doesn\u2019t become legal to traffic in bathroom pics just because someone slaps a political excuse on it. <\/p>\n

\"\"
<\/figcaption><\/figure>\n

Oldham likes to posture as \u201cthe reasonable one\u201d in the SCOTUS race compared to fellow hopefuls like Ho and the Ninth Circuit\u2019s VanDyke, but he\u2019s really the same except he wants you to know he\u2019s the kind of guy who read his senior year English assignments.<\/p>\n

Anyway, back to Ho. Because here\u2019s the most bizarre part of his audition:<\/p>\n

\n

I\u2019m well aware that today\u2019s 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.<\/p>\n<\/blockquote>\n

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\u2019t even really about trans rights, it\u2019s about whether there\u2019s 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\u2019s 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.<\/p>\n

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.<\/p>\n

\n

So I\u2019m grateful to have this opportunity to dissent. I only regret that we could not extend that same privilege to Michelle Evans.<\/p>\n<\/blockquote>\n

Evans dissented to 1.6 million people \u2014 Richman even adds that, aside from everything else, Evans could\u2019ve conveyed the exact same message without the picture \u2014 and the only repercussion she faced was temporarily handing over her phone.<\/p>\n

When Ho complained that there\u2019s no way for a judge to refute the charge that he\u2019s auditioning, he overlooked one option. Stop sending in tapes.<\/p>\n

(Full opinion on the next page\u2026)<\/em><\/p>\n

Earlier<\/strong>: James Ho Uses Opinion To Whine About People Accusing Judges Of Auditioning For Promotions<\/a><\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news.<\/em><\/strong>\n<\/p>\n<\/p>\n

The post James Ho Demands First Amendment Right To Post Covert Bathroom Pics<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"<\/figure>\n

A couple weeks ago, Judge James Ho used a concurrence to complain<\/a> that it\u2019s unfair that people accuse judges of auditioning for promotions. Late last week, he wrote a dissent as part of his audition for a promotion.<\/p>\n

On Friday, the Fifth Circuit voted 10-7 against an en banc<\/em> rehearing of Evans v. Garza<\/em><\/a>. This case involved a woman seeking to block a potential prosecution against her for \u2014 checks notes \u2014 posting a surreptitious picture of someone in a bathroom. Because, you know, the First Amendment should protect bathroom candids!<\/p>\n

In May 2023, Michelle Evans, a Texas GOP activist, went to a Texas House debate about gender-affirming care for minors. In the Capitol\u2019s women\u2019s 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.<\/p>\n

The Texas Penal Code \u00a7 21.15(b)<\/a> made it a state jail felony to photograph or transmit \u201ca visual image of another in a bathroom or changing room\u201d without consent and \u201cwith intent to invade the privacy of the other person.\u201d The local prosecutor opened an investigation based on the fact that Evans\u2026 did that. Evans, backed by Elon Musk\u2019s X<\/a>, sued to block any prosecution on First Amendment grounds.<\/p>\n

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:<\/p>\n

\n

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.<\/p>\n<\/blockquote>\n

Evans challenged the law on its face, which Richman describes as a non-starter because \u201cit is highly unlikely that there is a First Amendment right to distribute, without their consent, images of a person\u2019s genitalia (whether they be an adult, infant, pre-teen, or teen) while utilizing bathroom facilities.\u201d As for an as-applied challenge, Evans argued that, despite the broad language of the statute, it shouldn\u2019t apply once a person left the stall and stands at the sink. <\/p>\n

Adult lawyers argued that maybe some parts of the bathroom should be fair game for photographs<\/em>. Richman asked \u201cas to urinals, does the First Amendment say cameras can click once the pants or trousers are zipped?\u201d before opting not to rewrite the statute on this one.<\/p>\n

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:<\/p>\n

\n

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\u2019s a violation of privacy, then we have truly lost all understanding of the word.<\/p>\n<\/blockquote>\n

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\u2019t 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\u2019s standard evenly.<\/p>\n

Presumably \u2014 or at least hopefully \u2014 Ho doesn\u2019t actually believe that this law should be struck down to open the door to every pedophile on free speech grounds. But it\u2019s a convenient hook for him to draft a Townhall<\/em> blog post masquerading as a judicial opinion and that\u2019s what it takes to stay atop the potential Supreme Court promotion power rankings. <\/p>\n

One of Ho\u2019s principal rivals in those power rankings, Judge Andy Oldham, wrote his own dissent. \u201cTravis County District Attorney Garza wanted to prosecute Michelle Evans over a tweet,\u201d he writes, before citing a story about Pakistani human rights lawyers sentenced to 17 years for social media posts. I\u2019m 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. <\/p>\n

If Ho\u2019s opinion reads as a blog post, Oldham reached for a book report of The Trial<\/em>:<\/p>\n

\n

Kafka\u2019s Inspector said, \u201cI can\u2019t even confirm that you are charged with an offense, or rather I don\u2019t know whether you are. You are under arrest certainly, more than that I do not know.\u201d . . . That was not supposed to be an instruction manual.<\/p>\n<\/blockquote>\n

Ooh, Kafka. How literary! While Kafka\u2019s protagonist was placed under arrest and tried for an unknown charge, Evans was\u2026 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\u2019t moving forward with anything anyway. <\/p>\n

So Oldham\u2019s opinion adopts the same flawed frame as Ho\u2019s:<\/p>\n

\n

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.\u00a0<\/p>\n<\/blockquote>\n

The problem was never political speech, the problem was YOU CAN\u2019T POST PICTURES OF PEOPLE IN BATHROOMS. It doesn\u2019t become legal to traffic in bathroom pics just because someone slaps a political excuse on it. <\/p>\n

\"\"
<\/figcaption><\/figure>\n

Oldham likes to posture as \u201cthe reasonable one\u201d in the SCOTUS race compared to fellow hopefuls like Ho and the Ninth Circuit\u2019s VanDyke, but he\u2019s really the same except he wants you to know he\u2019s the kind of guy who read his senior year English assignments.<\/p>\n

Anyway, back to Ho. Because here\u2019s the most bizarre part of his audition:<\/p>\n

\n

I\u2019m well aware that today\u2019s 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.<\/p>\n<\/blockquote>\n

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\u2019t even really about trans rights, it\u2019s about whether there\u2019s 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\u2019s 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.<\/p>\n

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.<\/p>\n

\n

So I\u2019m grateful to have this opportunity to dissent. I only regret that we could not extend that same privilege to Michelle Evans.<\/p>\n<\/blockquote>\n

Evans dissented to 1.6 million people \u2014 Richman even adds that, aside from everything else, Evans could\u2019ve conveyed the exact same message without the picture \u2014 and the only repercussion she faced was temporarily handing over her phone.<\/p>\n

When Ho complained that there\u2019s no way for a judge to refute the charge that he\u2019s auditioning, he overlooked one option. Stop sending in tapes.<\/p>\n

(Full opinion on the next page\u2026)<\/em><\/p>\n

Earlier<\/strong>: James Ho Uses Opinion To Whine About People Accusing Judges Of Auditioning For Promotions<\/a><\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news.<\/em><\/strong>\n<\/p>\n

1<\/strong> 2<\/a>Next \u00bb<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

A couple weeks ago, Judge James Ho used a concurrence to complain that it\u2019s 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 […]<\/p>\n","protected":false},"author":3,"featured_media":164934,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[16],"tags":[],"class_list":["post-164954","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/164954","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=164954"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/164954\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/164934"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=164954"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=164954"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=164954"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}