2016.007: Why Online Impersonation Matters

This week a district court (felony) judge in Waco held Section 33.07 of the Texas Penal Code unconstitutional:

Sec. 33.07. ONLINE IMPERSONATION. (a) A person commits an offense if the person, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to:

(1) create a web page on a commercial social networking site or other Internet website; or

(2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.

(b) A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:

(1) without obtaining the other person’s consent;

(2) with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and

(3) with the intent to harm or defraud any person.

(c) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) is a Class A misdemeanor, except that the offense is a felony of the third degree if the actor commits the offense with the intent to solicit a response by emergency personnel.

(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.

(e) It is a defense to prosecution under this section that the actor is any of the following entities or that the actor’s conduct consisted solely of action taken as an employee of any of the following entities:

(1) a commercial social networking site;

(2) an Internet service provider;

(3) an interactive computer service, as defined by 47 U.S.C. Section 230;

(4) a telecommunications provider, as defined by Section 51.002, Utilities Code; or

(5) a video service provider or cable service provider, as defined by Section 66.002, Utilities Code.

(f) In this section:

(1) “Commercial social networking site” means any business, organization, or other similar entity operating a website that permits persons to become registered users for the purpose of establishing personal relationships with other users through direct or real-time communication with other users or the creation of web pages or profiles available to the public or to other users. The term does not include an electronic mail program or a message board program.

(2) “Identifying information” has the meaning assigned by Section 32.51.

At the moment the judge was signing the order (PDF—read it; p2¶1 is #Texas), I was arguing the unconstitutionality of Section 33.07 before the Fourteenth Court of Appeals in Houston. In that case, too, the trial court had held the statute unconstitutional, so the state was appealing and I represented the appellee.

“Why,” you might ask, “should I care whether it’s a felony to use someone’s name without his consent online to harm him?”

Excellent question.

The State’s argument is that the statute forbids impersonation. But “using the name” of another is not impersonating him. When I speak or write your name, I use your name. And “harm” is unlimited in scope—any disadvantage. So if I write your name online without your consent with the intent of harming you by embarrassing you, or offending you, or hurting your feelings, or depriving you of votes in the next election, I have committed a felony.

Blog post questioning Katheryn Harris’s journalistic ethics? Felony.

Campaign website criticizing an opponent? Felony.

Newspaper article revealing a public figure’s dishonesty? Felony.

Virtually everything on the internet is  covered by

(1) create a web page on a commercial social networking site or other Internet website; or

(2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.

Virtually all critical speech is “with the intent to harm.”

So Section 33.07 forbids virtually all online criticism. Texas claims venue and jurisdiction over people all over the world. And that is why you should care.

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2016.006: Ethics in Legal Journalism, or Katheryn Tucker

About 15 seconds of my 20-minute argument in the Georgia Supreme Court on Monday (watch it) involved everyday incidents of teenagers being sexually aroused by adults, or adults being sexually aroused by children. I talked about my own experiences as a sexually aroused teen, which was true and amusing, and also about something that is true and important: the unwanted sexual attention paid to teen girls by grown men.

My point, which I made explicitly, was that this is not the sort of thing that government could or should try to criminalize—something orthogonal, as JDog would say, to my argument, which was that the forbidden speech falls into no historical category of unprotected speech, so that forbidding it is not permitted by the First Amendment and Supreme Court authority.

Fifteen seconds, and incidental, and the Daily Report’s Katheryn Hayes Tucker chose to make that the focus of her coverage of the story. She found three outraged lawyers who were more than happy to be outraged in the paper without watching the entire argument, and described the outrageous snippet of argument to them.

I’m no Melissa Click, but I’m going to take a stand here and say that publishing comments on the reporter’s summary of the facts as though they are comments on the facts is flat-out unethical. It is lying to the reader: “here’s what this person said about the facts,” rather than “here’s what this person said about what I said about the facts.”

But needs must in modern journalism. Because publicity and outrage, and page views above all.

I checked out Tucker’s Twitter account, and found retweets of tweets from antiporn outfit National Conference on Sexual Exploitation (NCOSE), known as Morality in Media until the right-wing money got tight, including this one:

I noticed this because Katheryn Tucker also retweeted the same “dangers of porn” tweet from Lisa Thompson at NCOSE.

Retweeting is not necessarily endorsing; it’s not even necessarily true that retweeting the same tweet from two accounts at the same organization signals agreement (though it’s more likely). But then after I commented on her article on Twitter, Katheryn Tucker sanitized her Twitter timeline of @Porn_Harms tweets. That is highly suspect, so I called her on it:

Katheryn Tucker did not care to comment, but she then retweeted this @Porn_Harms tweet:

That retweet, without comment, after I called her on scrubbing @Porn_Harms from her timeline, reveals Katheryn Tucker’s sympathy with NCOSE / Morality in Media, with the false proposition that there is “a campus culture of sexual assault,” and with the notion that pornography fosters this nonexistent culture.

NCOSE / Morality in Media filed an amicus brief on behalf of the State in support of the statute. How did Katheryn Tucker’s like-mindedness with the amicus contribute to her focus on the one tiny tangential portion of the argument that would outrage the feminist mob?

Later the Daily Report published Scott Greenfield’s and my responses to the article under the headline, “Houston and New York City Lawyers Criticize Daily Report Article on Sex Exploitation/Free Speech Case.”1

That headline itself is biased spin. “Sex exploitation case” is NCOSE’s take on the case, not an objective description. It presumes that, when a child is sexually aroused by an adult or an adult is sexually aroused by a child, the child is “exploited”—a presumption that trivializes actual exploitation.

The Daily Report’s coverage of this story raises serious issues about how the Daily Report allows Katheryn Tucker’s personal bias—bias that is antagonistic to free speech itself, upon which newspapers theoretically thrive2—to affect her reportage. So I’m just going to leave this here.

I will return to it when need be.

[Edited: I had changed Tucker’s last name to Harris throughout. Fixed it.]


  1. I have got to stop reading comments. 

  2. If the State can forbid explicit communications to a minor with intent to arouse, the State can forbid criticism of the State with intent to arouse

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2016.005: Conservatism in Court

My argument in the Supreme Court of Georgia had me reflecting on three categories of conservatism: the social, the political, and the judicial.

In Georgia, we were dealing with a law that forbade an adult communicating certain content (including descriptions of nudity) to a child online with the intent to arouse or satisfy the sexual desire of the adult or the child.

While socially conservative libertarians can lay claim to the “political conservative” tag with just as much good faith as socially conservative authoritarian, I view political conservatism as lying closer to the authoritarian end of that axis. It may be that “politically conservative” has been used by so many disparate philosophies that it is devoid of meaning, but the political conservative would, in my view, view the suppression of perversion as a valid governmental goal.

The social conservative might hear about the law and first think, “that’s outrageous; nobody needs to be doing that,” then think, “where are the parents in this?” That the speech is repugnant might mean to the social conservative that the government should publish it, but not necessarily: she might see this law as both a damning indictment of modern society’s weakening of the family unit. She might also think that by criminalizing repugnant speech the government reduces parents’ motivation to parent. My argument in Texas was a socially conservative argument: it is parents’ job to protect their own children.

The judicial conservative would try to set aside his own political and social preferences and follow precedent. Precedent in this case is U.S. v. Stevens, with its stark rejection of a harm-vs.-good balancing test and its categorial ((Yes, I went there.)) imperative. The Stevens question is whether the forbidden speech falls into a recognized category of historically unprotected speech. Stevens leaves open the possibility that courts might recognize a hitherto unrecognized category of historically unprotected speech, but not the possibility that the state might simply decree such a category based on a cost-benefit analysis.

My argument in Georgia was a judicially conservative argument. The speech forbidden by 16-12-100.2(e) falls into no recognized category of historically unprotected speech. The State admitted at oral argument that it falls into no hitherto unrecognized category either.1 So the only judicially conservative action to be taken is to strike 16-12-100.2(e).

By taking the judicially conservative course, the Georgia Supreme Court will also be taking a socially conservative course, preserving parents’ right and responsibility to see to the education and training of their own children.

What it will not be doing is taking the politically conservative course, if “political conservatives” are right-wing authoritarians, but those guys are assholes anyway.


  1. In fact, in 1791 the age of consent was 12, so what we now consider children could not only be sexually aroused but also be married 

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2016.004: Why Criminal First Amendment Cases Matter

Chris was charged in Texas with Online Solicitation of a Minor under Section 33.021(b) of the Texas Penal Code. He hadn’t tried to solicit anyone, but he had allegedly communicated sexually explicit words to a minor with the intent to sexually arouse or gratify himself or the minor.

Jack was charged in Georgia with Obscene Internet Contact with a Child under Georgia Code 16-12-100.2(e). He hadn’t had obscene contact with anyone, but had allegedly communicated sexually explicit words to a child with the intent to sexually arouse or satisfy himself or the child.

I stood up in the highest courts of Texas and Georgia to argue that 33.021(b) and 16-12-1002(e) violated the First Amendment by forbidding a real and substantial amount of protected speech. Texas agreed with me; we will find out by July whether Georgia does.

You might ask yourself, “how is that protected speech?”

The boiled-down judicially conservative answer is that speech is protected unless it falls into a recognized category of historically unprotected speech, and the speech forbidden by the Texas and Georgia statutes falls into no such category. (The particular question didn’t arise in Texas; in Georgia the State even admitted that no such category existed. In light of the State’s admission, upholding the statute will require judicial activism on the part of the Georgia Supreme Court.)

“Okay,” you might say, “but the alleged speech is still gross. So—Constitutional originalism aside—why should adult speech to children that is intended to sexually arouse or gratify be protected? Why does it matter to me?”

Anti-porn outfit Morality in Media knows why it matters to you. This organization (which after half a century changed its name to National Center on Sexual Exploitation to cash in on leftwing social-justice money) filed an amicus brief in the Georgia case: it knows that allowing states to forbid speech based on its lawful intent would kick in the door on the First Amendment and allow the State to forbid any speech.

If you forbid saying “X” with lawful intent Y, nobody is going to say “X” for fear that people will think he has intent Y, and indict him.

So if the State can forbid sexually explicit communications to children with the intent to arouse or gratify, it can forbid other communications to children with the intent to arouse or gratify. For example:

It is a felony to criticize a prosecutor with intent to arouse or satisfy the sexual desire of a child.

You laugh. Sure, criticism of a prosecutor with intent to arouse or satisfy the sexual desire of a child is not widespread, but it happens, and when a child is aroused by an adult, the child is harmed. The State can and must act to prevent this harm. So says National Center on Sexual Exploitation.

When a person has criticized a prosecutor, who decides whether he has spoken with the intent to arouse or satisfy the sexual desire of a child? The prosecutor decides1 who is arrested and charged, who has to bail and hire a lawyer, who faces a jury and possible imprisonment for criticizing him. You can beat the rap, but you can’t beat the ride.

Which is fine, because we trust prosecutors. And children must be protected.

Except that we don’t trust prosecutors. So anyone facing the choice of criticizing the prosecutor under this regime would be well-advised to keep his mouth shut.

National Center on Sexual Exploitation‘s mission is not to eliminate criticism of prosecutors but to eliminate pornography. So if you like pornography, or you don’t like pornography but you like something that National Center on Sexual Exploitation‘s right-wing harpies think is pornography, or if your tastes in entertainment coincide exactly with said harpies’ tastes but you still think the government shouldn’t punish people whose tastes differ from yours, that’s why it matters to you.


  1. We all know how much independence grand juries show. 

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2016.003 Memento Mori

I’m writing this from 30,000 feet in the air, flying home to Houston from Atlanta where yesterday I argued a First Amendment case before the Georgia Supreme Court. Most lawyers never get to argue before their own State’s highest court, much less another state’s. Georgia was very hospitable to me. Brunswick criminal-defense lawyer Jason Clark1 and Savannah criminal-defense lawyer Cris Schneider, my local counsel on the case, put me up in a nice hotel, fed me good food, and—most importantly—made sure I didn’t have to worry about getting where I had to be when I had to.

In addition to Jason and Cris, I made other new friends in Georgia: Keith Lee, Andrew Fleischman, Jon Rapping, Scott Key, Esther Panitch, Alan Begner, and my opposing counsel Jay Sekulow (who I hope will be on the right side of the First Amendment the next time I work with him). I got to see my old Trial Lawyers College friend Nick Lotito. My old buddies Scott Greenfield and Brian Tannebaum flew in from New York and Miami to hang out and help me prepare for argument (I don’t need a moot court; I just need three or four smart lawyers to try to crush any pride I might have had in my argument over coffee).

The court didn’t have a lot of questions, and I don’t work great with cold panels. Give me a hostile panel over a cold one any day. A couple of times I stumbled because I hadn’t prepared to lecture the court for twenty minutes; finally I just shut up and enjoyed the silence for a moment. The one justice who had questions was David Nahmias, a former law clerk to Justice Scalia, former U.S. Attorney for the Northern District of Georgia, and by all accounts a brilliant guy—my kind of audience. He had the right questions both for me and for the State; I believe that Nahmias understood the argument better than the State, and at least as well as I understand it, which means that I didn’t obfuscate it too much in my brief.

Of course I have no idea what the court will do, but I know that I did a hell of a job (watch it here). Going home in triumph feels good.

Yet I remember the many times I have flown home from out-of-town cases feeling whipped, with my tail between my legs. And I remember that I could feel whipped rather than triumphant tomorrow, and that my next argument in the court of appeals (Thursday in the 14th) could be a total disaster. Also I remember that I am not my cases, so that I am the same guy when I am triumphant as when I am not.

Every victorious returning general needs that slave whispering in his ear: remember that you must die.


  1. For the Texas criminal-defense lawyers: Jason’s a Georgia version of Tony Vitz. 

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2016.002: Seeking 150 Criminal-Defense Innovators

In a series of posts almost five years ago I wrote about the idea of a criminal-defense skunkworks:

Since then the project has not gotten far off the ground. I had some discussions with some people, but we all have very busy lives and other jobs took higher priority.

Late last year I ditched gmail for fastmail for better privacy. Fastmail does not have as whizzy a sorting system as gmail, so my lawyer-listserv emails wound up in folders that I didn’t routinely check. When I stopped reading them regularly I realized how wasteful most criminal-defense-lawyer listservs are.

I started the Harris County Criminal Lawyers Association listserv with Troy McKinney and we managed it from ’97 or ’98; I was proud of it for a long time; it did a lot of good. But it has outgrown its usefulness to me. It’s been years since I could ask a substantive question there and get a useful answer. There are too many members; too many of them are not serious about criminal defense. There is too much noise, and not enough signal.

Six hundred members are too many for a many-to-many email listserv. It’s too easy for one or two people who think everyone else needs to smell it to fill six hundred people’s email boxes with their shit. Once the nonsense starts, without group disapprobation it snowballs: I started independent listservs for TLC ranch and regional alumni, and even though they were much smaller they quickly devolved to a couple of people crossposting whatever stupid stuff came to their minds.

For a long time listserv members—including some of those who are not serious about criminal defense—have been calling for listserv censorship, for formal rules. Troy and I were always adamantly opposed to the imposition of rules. The listserv was as much a social space as a workplace, and as a free-speech lawyer I bridled at someone telling me what I could or could not say on my creation.

I still don’t think formal rules are a solution to the problem of too much noise and not enough signal on the listserv. The Texas Criminal Defense Lawyers Association has a listserv with formal rules, and the rules are enforced by the rule enforcers (the TCDLA politburo) against unfavored members only. For rules on a listserv to work, the members would have to agree to the rule of a benevolent dictator, a philosopher-king.

So what is the solution? Obviously, the solution is to gut the listserv and reduce the number of people participating. But I can’t very well do that to the HCCLA listserv (technically, I could, but it would use up my year’s quota of hurt feelings in a day). So I’m starting afresh, building what I think of as a high-functioning criminal-defense lawyers’ group.

Why “high-functioning”? Because the sort of lawyers I most like to correspond with are those who function at a higher level: who look for deeper understanding of why they do things and how to do them better. I’m not talking about the lawyers who go to the Trial Lawyers College (to pick on one particular dogma) and thenceforth try cases the TLC way; I’m talking about  lawyers who adopt what works for them, reject what doesn’t, and look for other ways to improve their trial lawyering. Lawyers like Joey Low, or Norm Silverman.

I envision a group of such lawyers as (to circle back) effectively a criminal-defense skunkworks. Because if you put a bunch of innovative ((I put out a call for innovative lawyers, and one of my friends gave me a couple of names, and described their innovation in trial—trying different approaches with a witness, for example, until the witness gave the correct answer. While innovation on that scale is laudable, I had in mind innovation at a different level: more like John Ackerman’s innovation in bringing psychodrama to trial lawyering.)) lawyers in a room together, together they are going to find better ways of doing things.

How big a group? I like the notion of a group smaller than Dunbar’s Number, which is the theoretical limit on our ability to maintain stable social relationships: about 150.

At first I thought admission to the group should be subject to a black-ball vote: everyone already in the group gets a veto to new members joining. After further consideration, though, I have decided that the group should be a benevolent dictatorship. With the advice of current members, I will decide who joins. And while the list will have no rules, if I make a mistake in admitting someone and they become disruptive to the group’s purpose, which is to advance the art and science of criminal-defense lawyering, I will (again with the advice of the membership) remedy my mistake by removing them.1

So:

  • To advance the art and science of criminal-defense lawyering.
  • 150 or fewer members.
  • Criminal-defense innovators.
  • I choose the membership.

The question that remains is: what forum? Because this is something new, we are not stuck with email as our communication method. While we know that lawyers are able to use a listserv, we might find something that works better for our skunkworks. Because we are looking for innovators, we can use a more innovative communication system. And because we want higher barriers to entry than criminal-defense listservs have, we can use a communication method with a learning curve.

I like Twitter. Twitter is a many-to-many communication form, but it’s really easy to unfollow, mute, or block the person whose shit you don’t feel a compelling need to smell. Tweets are not delivered to my mailbox; I can dip into Twitter whenever I want. On Twitter I correspond with people who are into different things than I am, or more deeply into things that I am casually into. One of my Twitter friends (@morlockp), who is a computer programmer / farmer in New Hampshire, recently mentioned Slack. I asked him what Slack is, and he described it as ~like Twitter, but private.~2

I looked into it a bit further, and it looks perfect. We can have a channel for general discussion, a “random” channel for non-work stuff, and any number of channels for discussion of particular topics.

So:

 

  • Slack Team.
  • To advance the art and science of criminal-defense lawyering.
  • 150 or fewer members.
  • Criminal-defense innovators.
  • I choose the membership.

If you’re interested, please email me at mb@ivi3.com. Tell me why you’re interested, and if you have some field of study that you are especially interested in exploring, tell me that too.

 


  1. That the group will be a benevolent dictatorship may deter some from joining; that’s fine. 

  2. The ~ is my convention for a paraphrase. I couldn’t find his tweet to quote it directly. 

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2016.001: My Free-Speech Wish List

In the last three years, I convinced Texas courts to hold five statutes unconstitutional under the First Amendment.1 I filed briefs in the Georgia Supreme Court, will argue the unconstitutionality of a Georgia statute next month,2 and will be assisting Jason Clark in the appeal of another George First Amendment challenge.3 This year, I’d like to hear from:

Here’s what those lawyers get for calling me: we’ll discuss the best attack on the law, both substantively and procedurally. I’ll share what I know about the substance, and I’ll get up to speed on their states’ procedure, so that together we can choose the best avenue of attack (in Texas, it’s a pretrial application for writ of habeas corpus; in Georgia, a demurrer). We’ll draw up the papers together. I’ll prep you to argue the case in the trial court. If there is an appeal from the trial court’s ruling, you’ll get me admitted pro hac vice, we will write the brief together, and I will argue the case in the appellate courts. This will cost you and your client nothing but travel expenses and pro hac vice admission fees. In other words, your client gets tens of thousands of dollars worth of First Amendment appellate expertise for free. I’m doing the thing for the sheer joy of the doing.4

Will we win? I’m betting on it. Many of the Texas cases to which I’ve added my name have been dismissed by the State—so many that it has become frustrating to me that the State can evade the First Amendment fight with a determined litigator and continue prosecuting those schmoes who have lawyers less resolute.

Passing those statutes, their proponents are going to find, was child’s play compared to defending them in court. All of those statutes are presumptively unconstitutional.5 The defender of one of these statutes will have the burden of showing a court either a) that all of the speech restricted by the statute falls into some category of unprotected speech; or b) that the protected speech restricted by the statute is not real and substantial, in relation to the statute’s legitimate reach.

Now that even law profs dare join actual lawyers in proclaiming that the emperor has no clothes, that these revenge-porn statutes are unconstitutional, it won’t be long before courts catch on and disassemble revenge-porn statutes. Even legislatures will figure out, eventually, that it makes no sense to pass a statute that the courts are going to kill a year or two later.

The era of the revenge-porn statute, in other words, is coming to a close, and with it the idea of constitution-be-damned “cyber civil rights.” Join me on the front lines of that fight.


  1. Also one statute under Texas’s separation of powers clause. 

  2. February 22 in Atlanta. There will be steaks, wine, and hilarity. Mark your calendars. 

  3. Protip: the State can’t forbid people insulting bus drivers. 

  4. Don’t tell my wife. 

  5. Content-based restrictions on speech (which includes expressive conduct) are presumptively unconstitutional. If you wonder whether a statute is presumptively unconstitutional, ask yourself: do you have to look at the content of a communication to decide whether the law has been violated? If so, the statute is presumptively unconstitutional. 

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2015.105: Bah, Humbach

Josh Blackman sent me the link on Christmas Eve:

Humbach on the Constitutionality of Revenge Porn Statutes

http://lsolum.typepad.com/legaltheory/2015/12/humbach-on-the-constitutionality-of-revenge-porn-statutes.html

John A. Humbach (Pace University School of Law) has posted The Constitution and Revenge Porn (Pace Law Review, Vol. 35, No. 1, 2015) on SSRN. Here is the abstract: Most of the recently enacted revenge-porn laws are unconstitutional as content-based regulations of speech unless (as is unlikely) they can either (i) pass strict scrutiny or (ii) fit within one of the recognized categorical exceptions to First Amendment protection. By paying close attention to the constitutional precedents, however, a legislature should be able to write a law that addresses the primary harms of revenge porn without resorting to the content discrimination which subjects the law to strict scrutiny. One approach, suggested here, is to frame the law so that it establishes an otherwise valid crime whose burden on speech can be regarded as only “incidental” (within the meaning of O’Brien and other precedents). By avoiding the content-discrimination trap, such a law should be able to thus survive constitutional scrutiny for the same reasons that, for example, the Title VII harassment prohibitions are constitutional. There are, however, no guarantees. Any such a law would still represent, in the final analysis, an attempt by government to suppress speech it does not favor, and the basic meaning of the First Amendment is to prohibit exactly that sort of thing. Note: This article is a revised and finalized version of a working paper previously available and entitled “How to Write a Constitutional ‘Revenge Porn’ Law.”

I had seen a rough draft of the paper a year ago and hadn’t thought enough of it to write about it here. Humbach’s critique of existing revenge-porn statutes is substantively nothing new—I’ve been saying the same thing for years.

What is new is that a law professor finally grew the backbone to say that the malevolent Mary Anne Franks and Danielle Citron have sold state legislatures a bill of goods. It’s nice that the professor now says “the two prohibitions constitute unconstitutional content discrimination, viewpoint discrimination and speaker discrimination, not to mention prior restraint,”1 risking disapprobation and accusations of misogyny. But where was Humbach when Franks and Citron were selling their steaming pile of unconstitutional horseshit? He wasn’t in Austin with me testifying against Section 21.16 of the Texas Penal Code (“Unlawful Disclosure of Intimate Visual Material”), that’s for damn sure.

So what about the promised “constitutional revenge porn law”? Here’s what Humbach proposes:

It is a criminal offense for any person, in the absence of a purpose to convey or disseminate truthful information or ideas, to do any act intended to cause or otherwise attempt to cause extreme emotional distress to another person.

The first thing that you’ll notice is that this statute does not forbid revenge porn, which is the dissemination of truthful information (actual images) with the intent to cause emotional distress to another person. So Humbach’s constitutional revenge porn law is not even a revenge porn law.

Not only that, but Humbach’s constitutional revenge porn law is not constitutional. The dissemination of untruthful information is forbidden, but the dissemination of truthful information is permitted. By including the “absence of a purpose to convey or disseminate truthful information or ideas” phrase, Humbach has written a content-based restriction on speech, which is presumptively invalid.

That was not Humbach’s intent, of course—he meant to exclude “communicative content” from the statute’s ambit, and so save it from a facial challenge. But “communicative content” includes the dissemination of untruthful information and ideas as well as truthful ones.2

In the end, it’s not clear why Humbach proposes this statute, other than as a sop to those who think that revenge porn must be penalized.3 Even without recognizing the explicit content-based nature of the statute he admits that “such a law would still represent…an initiative by government to suppress speech that it does not favor, and the basic meaning of the First Amendment is to prohibit exactly that sort of thing.”


  1. “Prior restraint” is meaningful in criminal court only in that all speech-restricting penal statutes are equivalent to prior restraint in civil court. Civil tort cases do not have much to say about how criminal courts approach First Amendment attacks on penal statutes; prior restraint cases do. 

  2. Could a Pace University Law Professor possibly be this dim? 

  3. Humbach also calls Franks’s and Citron’s law review article “important.” Such shoddy work only becomes important when it is called out as shoddy. 

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2015.104: What Common Sense Is

The great thing about having blogged for more than eight years (eleven, if you count my first shortlived attempt) is that I have a record of my own increasing understanding of my subject.

I wrote in 2010 about fighting back against common sense—preempting and responding to the State’s argument that a jury should find a defendant guilty because of “common sense”:

“Common sense” has nothing to do with it. The words do not appear in a Texas criminal jury charge. The existence of jury trials is not common sense. The presumption of innocence is not common sense. Requiring proof beyond a reasonable doubt is not common sense.

What I didn’t have in 2010 was an explanation of what common sense is, until I saw this:

Screenshot of part of Scott Adams List of Cognitive Biases.
Screenshot of part of Scott Adams List of Cognitive Biases.

I knew about cognitive biases, of course, and about how they short-circuit rationality without our knowing it, but I had never made the connection before: “common sense” is just a polite term for our complex of cognitive biases.

In our everyday existences common sense gives us shortcuts so that we don’t spend a lot of time thinking our way through the same or similar problems time and again.1 Common sense is not appropriate in the jury room, though, because the problems faced by jurors are not similar to problems they have solved before.

Jury room problems may appear to be similar to real-world problems—common sense justifying itself—but the rules that apply in the jury room are different than those anywhere else. “Use your common sense” is a call to set aside those rules and decide the case based on cognitive biases.

In light of that and my developing unified theory of the criminal jury trial, I’ve changed my view of common sense.2 Instead of fighting it, own it.There are words that slip past our critical faculties and cause us to do things for reasons we cannot explain. For example, “because”: when you tell someone to do something because reason, he is more likely to do it than when you just tell him to do it. This is true regardless of the reason. Library patrons in line at a photocopier were much more likely to let someone cut in line to make a few copies if they were asked,

“Excuse me, I have 5  pages. May I use the Xerox machine, because I have to make copies?”

than if they were asked,

“Excuse me, I have 5  pages. May I use the Xerox machine?”3

Like “because” or “loophole,”4 the phrase “common sense” seems to cause suggestions to slip by people’s critical faculties. Given this fascinating fact, we trial lawyers can rage against the neurological machine, or we can use it to our clients’ advantage.Or we can do both.


  1. Those of you familiar with Richard Bandler and John Grinder’s “meta-model”  might think about whether any given cognitive bias represents generalization, distortion, or deletion. 

  2. The unfortunate thing about having blogged for more than eight years is that everyone else has a record of how little I understood eight years ago. 

  3. The same tendency did not obtain if the number of pages was 20 rather than five. 

  4. When a politician describes something as a “loophole,” you’re about to lose some freedom and he’s about to gain power. 

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2015.103: Seth Kretzer and James Volberding, Unethical Lawyers

It might be pardonable to refuse to defend some men, but to defend them negligently is nothing short of criminal.

Cicero did not take into account the case of Tyler lawyer James Volberding and Houston lawyer Seth Kretzer, whose treatment of their client Raphael Holiday was not merely negligent but malevolent. The idea that lawyers would turn on their own client, trying to speed his execution, was beyond consideration for Cicero.

As it was for me. When Gretchen Sween, the lawyer who was trying to help Holiday get new counsel appointed in the place of Volberding and Kretzer, told me that Kretzer and Volberding “opposed their own client’s motion for a stay of execution before the Fifth Circuit,” I was skeptical, to say the least. I thought that Sween’s description of what happened was probably not entirely objective.

Lawyers representing a death row inmate don’t suffer under the illusion that they can keep their client from dying. They don’t even suffer under the illusion that they can keep him from dying in cold blood at the hands of the state. Occasionally they can, but most often they are buying a few more precious days for their client, and making the state work a little harder to end his life. The client generally isn’t suffering from the illusion that litigation is going to keep him from dying either. Nothing is going to stop him from dying. Nothing is going to stop you or me from dying either, but most of us are doing things to try to set that moment off a little bit longer. We exercise and eat well, or failing that at least we eat, breathe, and don’t step in front of buses.

So the idea of lawyers, even lawyers who had given up and decided that it was time for their client to lose hope, opposing their client’s motion for a stay of execution was preposterous to me.

Until I read this (Scribd link). It is, in my opinion, a smoking gun, with its muzzle pointed directly at the heart of two lawyers’ reputations. Kretzer and Volberding pointed the gun and yanked the trigger. I’m going to describe the path of the bullet.

Download the PDF file .

In this unique document, first of all, Kretzer and Volberding are aligning themselves with “Respondent-Appellee,” who is William Stephens, the Director of the Texas prison system (TDCJ-ID). Stephens is a party because he is the state official detaining Raphael Holiday, who is nominally Kretzer and Volberding’s client.

So Holiday (through Gretchen Sween) filed a motion to stay his execution (Scribd link). Stephens opposed it. Sween replied to Stephens’s opposition. And Kretzer and Volberding respond to this. It’s pleading tennis, and Kretzer and Volberding have joined Stephens on his side of the net, opposite their client who is seeking a stay of execution.The tone is petulant—it’s about Kretzer and Volberding, rather than about their client, Holiday, or his interests. Clearly Kretzer and Volberding were butthurt by Sween trying to get their client competent representation for further representation. Instead of acting out when butthurt, they should have a) manned up and stood up for their client’s interests; or b) kept their stupid unethical mouths shut.Because, in case I have not made my opinion clear, Seth Kretzer and Wes Volberding are unethical lawyers. Their conduct in this case, and in the Robert Roberson case discussed by Mark Graber and Danielle Citron, has been ethically abhorrent. They have demonstrated a pattern of obstructing their clients’ attempts to avoid execution,
Volberding and Kretzer’s “please kill our client now” pleading violates all sorts of ethical rules: 1.02, 1.05, 1.06, and 1.15 come immediately to mind. Alert readers will have noticed the gertruding in the caption and first numbered paragraph: the reference to Rule 3.03. Why, if they were acting ethically, would Kretzer and Volberding feel the need to put the ethical rationalization for their action up front?And it is rationalization, not justification. Rule 3.031 says:

(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;

(3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision;

(4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(5) offer or use evidence that the lawyer knows to be false.

(b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.

(c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible.

Butthurt or not, there is nothing in this rule or elsewhere requiring or even allowing Kretzer and Volberding to respond, to their client’s detriment, to a pleading filed on their client’s behalf by another lawyer. Their reliance on Rule 3.03 is, like their ignorant and censorious reliance on Rule 4.02, simply wrong. “3.03” is a fabricated excuse to do something harmful to their client because their feelings are hurt. Seth Kretzer and James Volberding must be really hard workers, because they are too stupid to read simple rules, even with their reputations at stake.Some clients think they want unethical lawyers. They think it gives them an edge to have someone who will cheat for them. Those clients are wrong, and Kretzer and Volberding demonstrate why: because unethical lawyers are as likely—probably more likely—to behave unethically in ways that harm their clients as to help them.Ignorant clients may continue hiring Kretzer and Volberding. Uncaring judges may continue appointing them. Their colleagues, though, know what they really are.And so, now, do you.


  1. Not this Rule 303

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