2015.48: To the Potential Client

Dear PNC (we call you PNCs, for “Potential New Clients”; it’s redundant, I suppose, but “PC” is already assigned to “probable cause” and “personal computer” and “politically correct”):

You have told me repeatedly that you are innocent. You don’t mean “legally innocent”—that is, unconvicted—but “factually innocent.” I don’t know whether you’re telling me the truth or not (people lie to me all the time), but please know that it doesn’t matter to me. It won’t decrease my fee, and it won’t make me do any better job.

I consider the act of putting people in boxes to be fundamentally immoral in virtually all cases, and I don’t believe that I—or any human—have the wisdom to distinguish the few cases in which putting people in boxes is moral from the many in which it is not. So it doesn’t matter to me whether they’re factually innocent. If anything, I prefer factually guilty clients—there is less stress, and I confess that I get impish joy from cutting loose a malefactor. I’ll do the same job on behalf of the innocent, but there is no innocent-client discount.

You might wonder whether I believe your protestations of innocence. Don’t wonder. At this point, I listen without judgment. I neither believe nor (unless your story is bad to the point of incredibility) disbelieve. You don’t want a dumb lawyer, so if you are factually guilty, you don’t want a lawyer who is dumb enough to believe you when you lie to him. And you don’t want a lawyer who thinks it’s his job to judge you, so if you are factually innocent, you don’t want a lawyer who is judgmental enough to care. 

I have been training for more than twenty years for this fight against the people who are trying to put you in a box. Law school, Trial Lawyers College, trial upon trial, appeal upon appeal, hundreds upon hundreds of hours of teaching and studying continuing legal education, hundreds upon hundreds of hours of psychodrama and improv training, board certification: everything has led up to your case. 

If you really want someone to whom it is important whether you “did it,” who won’t take your case or will do a lesser job if he believes you to be factually guilty, you can get that for a lot less than my fee, but you will be buying a duller blade.

2015.47: HB101, HB 496, HB603 Unconstitutional

There are three nonconsensual-pornography-criminalization bills before the Texas House of Representatives' Criminal Jurisprudence Committee tomorrow:

HB101 (Guillen) and HB603 (Davis of Harris) are identical:

(b) A person commits an offense if the person: (1)  intentionally displays, distributes, publishes advertises, offers, or otherwise discloses visual material depicting another person engaged in sexual conduct; and (2)  knows or should have known that the depicted person has not consented to the disclosure.

(c) It is a defense to prosecution under this section that: (1) the disclosure is made in the course of: (A) lawful and common practices of law enforcement or medical treatment; (B) reporting unlawful activity; or (C) a legal proceeding, if the disclosure was permitted or required by law; (2) the disclosure consists of visual material depicting only a voluntary exposure of sexual conduct in a public or commercial setting; or (3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, or a provider of an information service, as defined by 47 U.S.C. Section 153, and the disclosure consisted of visual material provided by another person.

 (d)  An offense under this section is a state jail felony.

The careceral portion of HB496 (González) follows:

(b) A person commits an offense if the person: (1) by electronic means, intentionally discloses visual material depicting another person engaged in sexual conduct; (2) was in an intimate relationship with the depicted person when the visual material was created or transmitted to the person; (3) knows or should have known that the depicted person has not consented to the disclosure; and (4) discloses the visual material with the intent to cause harm to the depicted person, including mental anguish, emotional distress, actual or threatened physical violence, economic harm, harm to reputation, or harassment by a third party.

(c) A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an Internet website or other forum for electronic publication that is owned or operated by the person. (d) It is not a defense to prosecution under this section that the depicted person: (1) created or consented to the creation of the visual material; or (2) voluntarily transmitted the visual material to the actor.

(d) It is not a defense to prosecution under this section that the depicted person: (1) created or consented to the creation of the visual material; or (2) voluntarily transmitted the visual material to the actor.

(e) It is an affirmative defense to prosecution under this section that the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure consisted of visual material provided by another person.

(f)  An offense under this section is a Class A misdemeanor.

The penal statutes these bills propose would create a restriction on speech ("visual material") that is content-based ("depicting another person engaged in sexual conduct"). Such restrictions are presumptively unconstitutional under the First Amendment.

The United States Supreme Court has, in its recent cases  involving First Amendment challenges to content-based restrictions on speech (United States v. Stevens, 559 U.S. 460, 130 S.Ct. 1577 (2010); United States v. Alvarez, 567 U.S. ___ (2012)), applied a categorical test: if the speech restricted does not fall into one of a few narrowly-defined categories of historically unprotected speech, the statute is unconstitutional. These categories are:

  1. Advocacy intended, and likely, to incite imminent lawless action;
  2. Obscenity;
  3. Defamation;
  4. Speech integral to criminal conduct;
  5. So-called “fighting words”;
  6. Child pornography;
  7. Fraud;
  8. True threats; and
  9. Speech presenting some grave and imminent threat the government has the power to prevent (“Although,” says the Supreme Court, “a restriction under the last category is most difficult to sustain”).

The expression that House Bills 101, 496, and 603 would forbid falls into none of these categories. All three bills implicate violations of privacy, but the Supreme Court has never held that violations of privacy are unprotected. House Bill 496 has an intent-to-harm element, but the Court has never held that speech is unprotected because it is intended to cause harm.

The "defenses" in subsection (c) of House Bills 101 and 603 and the "affirmative defense" in subsection (e) of House Bill 496 will not save the statutes from unconstitutionality.

Nationwide, proponents of bills like these have shown a vague handwaving lack of understanding of the First Amendment issue. In Arizona, enforcement of the nonconsensual-pornography criminalization statute was almost immediately stayed on First Amendment grounds by a U.S. District Court.

Free expression is robust in Texas criminal courts. The Court of Criminal Appeals has recently held unconstitutional two felony statutes (Online Solicitation of a Minor and Improper Photography) on First Amendment grounds. The courts are still working on unraveling the consequences to the many people who were convicted of violating these statutes. It's a bad idea for the Texas Legislature to pass another void statute.

2015.46: Boom Goes the Thoughtcrime.

Whether he wrote DOWN WITH BIG BROTHER, or whether he refrained from writing it, made no difference. Whether he went on with the diary, or whether he did not go on with it, made no difference. The Thought Police would get him just the same. He had committed — would still have committed, even if he had never set pen to paper — the essential crime that contained all others in itself. Thoughtcrime, they called it. Thoughtcrime was not a thing that could be concealed for ever. You might dodge successfully for a while, even for years, but sooner or later they were bound to get you.

George Orwell, Nineteen Eighty-Four.

Today I got word that a district judge in Montgomery County, Texas held unconstitutional the "posession" portion of Texas's Fraudulent Use of Identifying Information statute. By criminalizing the possession of information (including knowledge) combined with the intent to harm (which is a constitutionally protected intent) or defraud the State has created a thought crime.

in Texas, unlike in Oceania, we are free to daydream, to intend to defraud as long as we do not act on that intent. The statute that creates a thought crime is unconstitutionally overbroad under the First Amendment: “Whatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” Stanley v. Georgia, 394 U.S. 557, 566 (1969).

2015.45: Problems in Evidence Tampering I

Suppose that a client comes to you with a problem: he has a computer hard drive full of child pornography, and he wants to know what to do with it. What do you tell him?

It's illegal for him to continue possessing the images. So you can't advise him to do nothing (and keep breaking the law).

The smart thing for him to do would be to destroy the hard drive (if I could, I would recommend swisscheesing it with a drill press).

But tampering with evidence is illegal under both Texas and federal law. Is it a crime to destroy the hard drive? To advise the client to do so?

Under state law (Texas Penal Code section 37.09),

A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he: (1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; …

So if you don't know that an investigation is pending or in progress, you aren't breaking Texas law by advising your client to destroy the hard drive. If you do, you are.

Under federal law, though (18 U.S.C. § 1512(c)), you don't have to know that an investigation is pending to be liable for tampering with evidence:

(c) Whoever corruptly— (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding … shall be fined under this title or imprisoned not more than 20 years, or both.

What does "corruptly" mean in this context? Hell if I know. I'll bet Philip Russell didn't think he was acting corruptly when he destroyed the child-pornography-containing hard drive, and he didn't know that an investigation was ongoing. But he got charged with violating section 1512(c) and 1519—

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

—pled them down, and wound up suspended from practicing law and confined to his home for six months for misprision of a felony. (Things could have been much, much worse. Much.)

Your client could get the hard drive out of his own possession without destroying it by delivering it to someone who doesn't know what it contains (not you, for God's sake), but he's still arguably concealing it.

It's a crime to conceal or destroy the hard drive with the intent to make it unavailable in an investigation. So it's a crime to advise someone to destroy the hard drive with the same intent. How would the government prove your intent in advising the client? Well, you're a criminal-defense lawyer; the government would probably assume that your advice to your client was aimed at making the hard drive unavailable in an investigation. Sure, it's an invalid assumption, but that won't prevent an indictment.

You can't tell your client to do the smart thing and destroy the hard drive. (Why is it smart? Because the penalty for possessing child pornography is much more severe than the penalty for tampering with evidence, and if the client destroys the hard drive properly and keeps his mouth shut there will be no evidence that he has tampered with evidence.) You can't tell your client to do the dumb thing and keep the hard drive. What do you do?

We are problem solvers. We hate for the answer to be, "I can't answer that." But "I can't answer that" is the only possible advice in this situation.

You could, of course, instruct your client on certain aspects of the law: possession of child pornography is a crime; tampering with evidence is a crime; without the hard drive the government is likely to have a hard time proving that you tampered with evidence or that you possessed child pornography; if the government gets its hands on the hard drive they won't have a hard time proving that you possessed child pornography, which will certainly land you in prison; don't talk to anyone about the contents of the hard drive.

You can see how an appropriate instruction on the law might allow an intelligent client to draw his own conclusion.

2015.44: One out of Seven—an F for McBrayer

Justin McBrayer laments the fact that our public schools are teaching our children that there are no moral facts, and therefore no moral truths. He gives seven examples, from online fact vs. opinion worksheets, of facts that kids are taught are opinions:

— Copying homework assignments is wrong.— Cursing in school is inappropriate behavior.

— All men are created equal.

— It is worth sacrificing some personal liberties to protect our country from terrorism.

— It is wrong for people under the age of 21 to drink alcohol.

— Vegetarians are healthier than people who eat meat.

— Drug dealers belong in prison.

All of these are opinions, with one possible exception of the sixth:

Copying homework assignments is wrong: May be true or false depending on circumstances. If by "assignments" you mean "the description of work to be done," the statement is wrong. If by "assignments" you mean "the answers," the statement may be right or wrong depending on the circumstances—some assignments require students to collaborate.

Cursing in school is inappropriate behavior: Often untrue. Aside from the repetition of others' words in literature and drama, occasionally an emphatic curse adds to communication.

All men are created equal: Demonstrably false. Some men are taller, some shorter; some are smarter, some dumber; some more handsome, some less.

It is worth sacrificing some personal liberties to protect our country from terrorism: McBrayer cannot possibly be serious. This is his opinion, which some others share; they are wrong. Is something that is falsely believed to be true strictly speaking an opinion? ((Here's an example, from the same worksheets, of a statement described as fact:

It is illegal to yell out "Fire" in a crowded movie theater.

The instructions on the worksheet do not say to assume that the statement is true. If true, this would be fact. But it is untrue.))

It is wrong for people under the age of 21 to drink alcohol: It's okay for them to vote, drive, have sex, get married, and die in foreign wars, but it's wrong for them to drink alcohol?

Vegetarians are healthier than people who eat meat: If true, this would qualify as a fact. I'm not convinced, but I'll give him this one out of mercy.

Drug dealers belong in prison: Now McBrayer is just clowning me. Some drug dealers belong in prison, maybe. But the owner of the corner liquor store? Your local barista? The checker selling cigarettes at Kroger?

In short, McBrayer is unable to distinguish opinion from fact, and thinks that society would be better if schools were not teaching kids to do so.

I disagree, of course. I'd rather live in a world of people who critically question opinions such as those that McBrayer adopts—do drug dealers belong in prison? is it worth sacrificing some personal liberties to protect our countries from terrorism?—than in a world of McBrayers who think that their opinions are fact.

McBrayer uses the example, it’s wrong to kill people for fun, as something that schools are "teaching children … is not true." While I agree with McBrayer that there is moral truth, and that this statement is true, I'm more comfortable with a citizenry willing to examine this, as well as McBrayer's opinions, than one that uncritically accepts them all as true. That it is wrong to kill people for fun is easily enough derived from other moral principles and intuitions; that It is wrong for people under the age of 21 to drink alcohol is not.

2015.42: Harris County Welcomes Dallas Prosecutors

What do you do if you’re a District Attorney running an office that is under fire for prosecutorial misconduct and in the middle of a hearing (in which current and former prosecutors contradicted each other, themselves, and the documentary evidence) over whether the office hid exculpatory evidence of alternate suspects in a murder case?

If you’re Devon Anderson, you hire a former Dallas County ADA who is the subject of a motion for new trial for hiding exculpatory evidence in a murder case.

Fortunately we criminal-defense lawyers have started talking to each other of late. Here’s the book on three new Harris County ADAs, refugees from the Dallas County DA’s Office, from one of the Dallas brethren:

Danielle Uher: She withheld evidence on a high profile case and then lied about it to the judge. We have it all on the record. She also improperly contacted a consulting expert and tried to get him to spill the beans on the defense strategy. She is a bully who takes advantage of weakness and only responds to bully in return. She will interrupt and talk over and down to you AND the judge. The louder she argues, the more wrong she usually is.

Andrea Mosley: She is a former cop and doesn’t believe there is anything such thing as an innocent defendant. If they’ve been arrested, they’re guilty. She also doesn’t believe in mitigation. If you’re 1% wrong, you’re a 100% wrong and there is nothing in between and no excuse for any wrongdoing. Once we had a defendant who was arrested for stealing food and she offered prison time because, “He’s a thief and I don’t like thieves. At least in prison, he won’t have to steal to eat.” She is very frank and you will always know where you stand. She holds the defense bar in utter contempt, and generally doesn’t work and play well with women.

Andrea Handley: She’s the nicest one of the bunch, but is also the most manipulative of them as well. She will try to lull you into a false sense of security and then sticks a shiv between the 3rd and 4th ribs. Document document document and then document your file some more. A paper trail is the best way to deal with her.

All good to know, more in the nature of a cautionary tale rather than actionable intel. It’s mostly things that could fairly be said of some members of the defense bar: poor social skills, contempt for the adversary, zealotry, manipulation.

When Uher talks over Jim Wallace or down to Susan Brown, I want to be there.

Mosley sounds like a prosecutor in the mold of Justin Keiter, trying to prove to the world her authoritarian credentials; I hope she doesn’t get butt-hurt like Justin does when I call him a boring little fascist. I see a place for prosecutors such as them; they have to be watched especially closely, though, both by the defense bar and by whoever in the DA’s Office cares about ethics, because zealotry often leads to ethical lapses.

Handley will fit in just fine; nice-and-manipulative prosecutors are a dime a dozen at the Harris County Criminal Justice Center; the advice for dealing with her should be the rule among defense lawyers rather than the exception.

Here (PDF copy of opinion), though, is some actionable intel: a Fifth Court of Appeals opinion from this week dealing with Uher:

Appellant supported his motion with affidavits from Navarette and appellant’s trial counsel, Andy Beach. In his affidavit, Navarette stated that in his pretrial interview with Assistant District Attorney Meredith Behgooy, he told her that the black SUV had pulled “behind” his van on Elm Street and that he had made the sudden stop at the intersection because Ramirez had gotten out of the van so fast. Navarette also stated he had volunteered to testify at trial and was sworn in as a witness, but that Behgooy told him he had an outstanding warrant for “criminal mischief” and that the “best thing would be for [him] not to show up at trial because there was a probability of getting arrested.”

According to Beach’s affidavit, at the same time Behgooy suggested that Navarette not show up for trial, she told Beach that appellant did not need to subpoena Navarette because he would be testifying at trial as a State’s witness. On the day of trial, however, Behgooy and her supervisor Danielle Uher, told Beach that Navarette was not present for trial and would not be testifying after all. The State then refused to request a writ of attachment to secure Navarette’s presence. The trial judge nevertheless issued a writ because Navarette had been previously sworn as a witness.

Beach said the State did not tell him that Navarette would be available to testify until after Orosco had testified. He further said he did not know what Navarette had witnessed until he was testifying on the stand. According to Beach, Navarette’s account substantially bolstered appellant’s claim of self-defense and, if he had known that Navarette could provide favorable evidence, it would have altered his presentation of the case, including his opening statements, the manner in which he questioned Orosco, and his advice to appellant on whether to testify.

So according to witnesses Behgooy told an exculpatory witness to make himself scarce and told defense counsel that the witness would be testifying as a state witness. Then Behgooy and Uher told defense counsel that the witness would not be testifying after all, and did not request a writ of attachment. Fortunately, the defense was entitled to rely on the State’s subpoena, and could get a writ of attachment. Unfortunately, the State’s hiding of the ball (concealing Navarette’s story and trying to disappear Navarette) adversely affected the defense.

At the motion for new trial hearing, the trial court heard the prosecutors’ testimony ex parte and sealed the transcript of their testimony. The Dallas Court of Appeals reversed for a proper hearing and ordered the transcript unsealed (rest assured that you’ll see it as soon as it’s out).

I don’t expect Anderson to inquire too closely into the reputations of the prosecutors she hires. I wouldn’t ask the prosecutorial bar about defense lawyers I was considering hiring, but I don’t have the duty to see that justice is done.

I had an unfortunate encounter last year with a misdemeanor Harris County prosecutor who thought it was okay to tell a subpoenaed witness who had exculpatory information not to turn up for trial; maybe witness-hiding prosecutors are just what Anderson is looking for.

Was Meredith Behgooy not available?

2015.41: Citron and Richards on Revenge Porn

There are two types of advocates of revenge-porn criminalization: there are those who actually propose and try to defend unconstitutional statutes, and those who dispense with First Amendment objections with a wave of a hand, but don’t offer any statutory language that might pass First Amendment Muster.

Mary Anne Franks is an example of the former. She will write (and rewrite) her model statute and defend it to the last breath with great passion but very little legal reasoning.

Lawprofs Danielle Citron and Neil Richards are the latter. They defend the idea of revenge-porn criminalization, but don’t suggest language that might be acceptable (Citron disagrees with Franks’s approach—she thinks that an acceptable statute will “only punish individuals who knowingly and maliciously invade another’s privacy and trust“; Franks disagrees, and her model statutes don’t include those requirements).

In “Regulating revenge porn isn’t censorship” Citron and Richards write:

Yet some critics argue that regulating nonconsensual pornography risks censoring protected speech, including pornography. Under the First Amendment, critics argue, we cannot take that risk.

But it is possible to be both pro-porn and anti–revenge porn, and laws can be designed accordingly. What matters under the First Amendment and what is often misunderstood is not whether we can regulate revenge porn but why and how.

For “some critics” they link to my post fisking Citron’s Forbes Forbes piece on the subject.

They also write—

The defenders of revenge porn ignore this fact and offer no response other than a curious insistence (bordering on affection) for the continued availability of amateur and celebrity revenge porn, as if they have some personal stake in its continued free flow.

—which puts Richards squarely in the sleazy dishonest camp, with Citron and Franks, of those who, knowing better, accuse people opposed to criminalization of favoring the activity that would be criminalized.

That notwithstanding, I’ve read some of Richards’s writing on privacy and the First Amendment, so I was curious how a revenge-porn criminal statute could pass First Amendment muster.

I asked Richards via The Twitter Machine:

He replied:

What he may not have known is that I had already read him. I quoted him back at himself:

What he’s saying in those quotes is that giving courts a standard such as “not newsworthy” or “of purely private concern” gives them the power to censor expression that they dislike, and is at odds with modern commitments to the freedom of speech. Which is a very different thing than a well-crafted law will criminalize “1 sexually explicit photo 2 known to be shared in trust 3 not newsworthy.”

He crawfished:

I would be interested in reading a breach-of-confidence revenge-porn statute, but I’ve yet to see one, and Richards is apparently a dry hole. He’s hand-wavey on the defense of his platonic well-crafted law, too:

But regulating revenge porn doesn’t have to work that way. We can regulate revenge porn if it was secretly recorded, because there is no right to secretly capture sexually explicit images of ordinary people or celebrities. We can regulate it if it is distributed in violation of an express or implied trust and an expectation of privacy. And we can regulate it if it is intended to intimidate, threaten or harass and accomplishes that purpose.

With links and everything! Except that the first link is to a book by Citron; the second to a book by Richards; the third to an Atlantic article; the fourth (headache-inducingly) to an ACLU press release about the lawsuit challenging Arizona’s revenge-porn statute, which says nothing about intimidation, threats, or harassment; and, finally, some law: Rice v. Paladin Enterprises, Inc., in which the Fourth Circuit Court of Appeals reversed the District Court’s grant of summary judgment in favor of the defendant who had published a manual for murder.

Except that the Supreme Court has never said that there is no right to secretly capture sexually explicit images. Nor has it ever held that privacy trumps the First Amendment, nor that speech violating a trust is ipso facto unprotected.

Perhaps if the speech is intended to intimidate, threaten, or harass (rather than merely to embarrass or offend), it is unprotected. Non-content-based restrictions forbidding such speech have been upheld, but such restrictions need meet only intermediate scrutiny, lower scrutiny than the strict scrutiny that content-based restrictions face, so that’s no indication that a content-based restriction like a revenge-porn statute will be upheld.

Besides, try suggesting to the carceral feminists, fans of criminalizing revenge porn, that a criminal statute should include as an element the intent to intimidate, threaten, or harass.

Good luck with that.

2015.40: Thinking is Not What You Think

Do I have free will? If you believe that I do, on what evidence do you believe that? The only evidence that you might have is your perception that you have free will—anything outside of that can be easily faked. If you ask me to do something and I do it, you don’t know whether that’s out of free will or some compulsion. But it seems to you that you have free will, so you believe that you have free will, and because you believe that you have free will and assume that I am the same you believe also that I have free will.

It seems to me that I have free will too. So why do I believe that I don’t have free will? Because it doesn’t make sense to me that the human brain would be any less deterministic (which is not to say “predictable”) than the rest of the universe. I could conceivably be wrong, but I count my perception that we have free will as an illusion. That just makes more sense to me.

Accepting that free will is an illusion is liberating. It opens up the possibility that our minds plays other big tricks on us, that they don’t work the way they seem to in other ways either.

One of the experiments designed to try to answer the free-will question (a question that I think no experiment will ever really answer) was the Libet Experiment, the results of which Libet interpreted to mean that the impulse to voluntary action arises before a consciousness of the impulse—that by the time we “decide” to move a finger we have already initiated the action, and only think in retrospect that we have made a conscious decision.

In other words—and I don’t think the Libet Experiment is conclusive on this point, but it is provocative—conscious decision making is an illusion. Each of us perceives himself or herself as consciously making decisions, and can justify those decisions if pressed with rational reasons. But we know that our “rational” thinking is raddled with cognitive biases that render its rationality suspect at best. We don’t, of course, recognize these biases when they are affecting us—another illusion, and more support for the premise that conscious decision making is an illusion.

That conscious decision making is an illusion is the major premise of my model of juror decision making, and of my Grand Unified Theory of Trial.

2015.39: Texas House Member Chris Turner is an Ignorant Buffoon (updated)

Texas Penal Code Section 36.06:

OBSTRUCTION OR RETALIATION. (a) A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act:

(1) in retaliation for or on account of the service or status of another as a:

(A) public servant, witness, prospective witness, or informant; or

(B) person who has reported or who the actor knows intends to report the occurrence of a crime; or

.  .  .  .
(c) An offense under this section is a felony of the third degree unless the victim of the offense was harmed or threatened because of the victim’s service or status as a juror, in which event the offense is a felony of the second degree.

Texas Penal Code Section 1.07(25):

“Harm” means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.

Harm may includes reputational harm or embarrassment. So it’s a felony to embarrass a public servant (including an elected official) on account of his service or status as a public servant.

I don’t know that anyone has ever been prosecuted (explicitly) for embarrassing an elected official in Texas, but the statute allows it, so the statute is unconstitutional.

Does it really allow it? It doesn’t forbid it, and I don’t see how you read harm to exclude embarrassment and reputational harm. But just in case you do, Democratic Texas House Member Chris Turner of Tarrant County has a solution: House Bill 1061, which would add a fourth subsection to Section 36.06:

(4) “Harm” includes:
(A) financial harm, including harm to a person’s financial status or a person’s credit report or score;
(B) harm to a person’s reputation;
(C) harm caused by intentionally disseminating or using a person’s personal, private, or confidential information;
and
(D) harm caused by invading the privacy of a person.

Ignorant Buffoon Chris Turner

That is Chris Turner. Chris Turner is a mouthbreathing dimwit who wouldn’t know the First Amendment if his favorite hand puppet read it to him slowly in very small words.

Fortunately, Turner was Wendy Davis’s campaign manager, so his bill has zero chance of success. Unfortunately, his bill is superfluous anyway: the statute makes embarrassing him a felony. And, so that I am clear enough that even the slackjawed moron Mr. Turner gets it, that is exactly what I am doing.

I write this blog post with the intent to harm Chris Turner’s reputation on account of his status as a public servant.

[Update: I’m also violating Texas Penal Code Sections 33.07 (Online Impersonation) and 32.51 (Fraudulent Use of Identifying Information) either one of which could be a predicate unlawful act for a 36.06 prosecution.]

Come and get me.