A photograph of a fully clothed political candidate washing hands in a public restroom. A social media post criticizing that candidate's presence there. And a criminal investigation that dragged on long enough to generate a federal appellate ruling before the prosecutor effectively threw in the towel.
That might sound like an odd recipe for a First Amendment showdown, but that's precisely what unfolded in Evans v. Garza, a case in which the 5th Circuit Court of Appeals declined Friday to reconsider a divided panel ruling — and left some rather consequential constitutional questions hanging in the balance.
The controversy began in May 2023, when Michelle Evans attended a Texas House debate concerning gender-transition treatments for minors. While visiting a women's restroom at the Capitol, Evans encountered a biological male who identified as female and was running for the Texas House.
Someone else photographed the candidate, fully clothed, washing hands at the restroom sink. Evans subsequently shared the photograph on Twitter, criticizing the candidate's use of the women's facilities.
Travis County District Attorney José Garza opened an investigation into whether Evans had violated a Texas law that, at the time, prohibited the dissemination of restroom photographs without consent and with intent to invade another person's privacy. Violations carried potential felony penalties.
Evans ultimately was not charged, but she sued preemptively to prevent the investigation and any resulting prosecution, arguing that applying the statute to her political speech violated the First Amendment. A federal district court denied her request for an injunction. In December 2025, a divided 5th Circuit panel affirmed that decision, with Judge Andrew Oldham dissenting.
Evans sought rehearing before the full court. On Friday, the 5th Circuit denied the petition for rehearing en banc, 10-7. And that's where things get particularly interesting...
A Right to Privacy Versus a Right to Speak
Judge Priscilla Richman, concurring in the denial of rehearing, emphasized that public restrooms are places where people reasonably expect privacy — even outside individual stalls.
It's a legitimate concern. Nobody wants photographers lurking around restrooms, capturing unsuspecting individuals attending to personal matters. But Richman went further, suggesting Evans could have expressed her political objections without publishing the photograph.
That's where Judge James Ho, dissenting from the denial of rehearing, took issue. The First Amendment protects images, not merely words. And Evans wasn't sharing the photograph for voyeuristic purposes; she was using it to illustrate her objection to a political candidate's conduct in a government building.
There's also a rather spectacular irony here: Richman's concurrence actually reproduces the photograph at issue. As Ho observed, the concurrence apparently recognized that the image helped illustrate its argument — precisely the point Evans was making by publishing it in the first place.
Ho also pointed to another irony in the court's privacy analysis: The law was being invoked to protect the privacy of a biological male using the women's restroom, while Evans's objection centered on the privacy of the women expected to share that space. Ho argued that the court had turned those competing privacy interests upside down:
And we have indeed lost all understanding of privacy. For let us not miss the profound irony here: A man enters a women’s bathroom—and it’s the man’s privacy that is violated?
To borrow from the concurrence: Mothers must “nurse [their babies],” and women must “adjust [their] undergarments,” “tak[e] off a blouse,” or “hik[e] up a skirt,” in the presence of any man who claims he is a woman—and if a woman objects, she’s the one who is violating his rights?
The entire point of Evans’s message, of course, is that it’s a violation of women’s privacy for a man to be present in a women’s bathroom. So we’returning the law upside down to suggest that men have a privacy right to enter a women’s restroom—and women have no First Amendment right to object.
No doubt, the government may have compelling reasons to protect restroom privacy, but that doesn't automatically settle whether it can criminalize publication of an otherwise non-intimate photograph used to make a political point. And political expression doesn't lose constitutional protection simply because someone finds its message offensive.
Ho also stressed that the First Amendment must protect unpopular viewpoints regardless of ideology, invoking the 5th Circuit's earlier Villarreal litigation involving a journalist whose political outlook differed from Evans's, writing:
We’re supposed to apply the same constitutional protections to every citizen, whether we agree with their views or not. We’re supposed to protect the freedom of speech no matter whose ox is gored.
He even took a brief detour into the Supreme Court's recent West Virginia v. B.P.J. ruling, noting that SCOTUS used a female pronoun in its official caption for the transgender plaintiff despite the parties' own gender-neutral captions. His larger point wasn't ultimately about pronouns, but about the freedom to disagree with prevailing cultural conventions.
My ultimate point here, however, is not to debate whether we should follow neutrality, history and tradition, or transgender ideology when it comes to pronouns. My point, rather, is simply this: As Americans, we’re allowed to object, and we’re allowed to dissent.
The Supreme Court decision allowing West Virginia and Idaho to protect women's sports didn't use pronouns. Except in the caption. Judge Ho highlights that discrepancy between the opinion (written by Justice Kavanaugh) and the caption (chosen by the clerk's office). Odd stuff! https://t.co/xLEC889xi4
— Eric W. (@EWess92) October 10, 2026
The Case That Wouldn't Quite Go Away
Meanwhile, there's another wrinkle: According to Oldham's separate dissent, Garza informed the court in June that previously collected evidence hadn't been retained, the statute of limitations had expired, and arrangements would be made to return Evans's confiscated phone. In other words, the threatened prosecution was effectively dead in the water.
Yet the panel's December ruling wasn't vacated. The precedent remains, even though the circumstances prompting the lawsuit have largely evaporated. That raises its own troubling question: Can the government pursue a citizen over political expression, defend its authority to do so through years of litigation, then retreat while leaving behind a judicial precedent favorable to future prosecutions?
There are legitimate privacy interests on one side of this dispute. But the freedom to document and criticize public officials and political candidates is no small consideration, either.
The 5th Circuit has left its earlier ruling intact. What it hasn't provided is a particularly satisfying resolution of where legitimate privacy protections end and constitutionally protected political expression begins.
And that's a line worth getting right. Unfortunately, given the posture of the case, the likelihood of the Supreme Court taking it up (assuming Evans opts to appeal) appears slim. While the First Amendment question and the 5th Circuit's 10-7 en banc split, accompanied by rather strongly worded dissents, make it appetizing, that aforementioned wrinkle could hang things up. The fact that Evans is challenging the denial of preliminary injunctive relief (rather than presenting a case decided on the merits with a fully developed record) and that the threatened prosecution is no longer possible may well mean this decision stays put.
