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. 

8 Comments

  1. Absolutely encouraging. You have a vision. Emporer has no clothes. Too funny, yet I suppose that it is the satire that offends so much! That phrase is in an actual exhibit of support I have seen at the 2nd appellant court in Florida in a cyberstalking charge.

    You put out a great call and wish you much success.

  2. I wish we could be confident that legislatures will, as you hope, “figure out, eventually, that it makes no sense to pass a statute that the courts are going to kill a year or two later.”

    This pits long-term reasonableness/wisdom/good stewardship versus short-term pandering to a constituency intoxicated by the latest media-driven “outrage.”

    I wish the public cared enough to oust lawmakers who pass blatantly unconstitutional statutes to appease their party’s slack-jawed base.

  3. “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.”

    Let’s posit that I’m a prosecutor who has read one of your motions and, after being convinced that you were correct, had your client’s case dismissed. Because I am.

    I understand that my decision to have the case dropped keeps you from getting an appellate decision that all such cases should be dropped. And because I’m a peon in my office,my decision doesn’t apply to other courts or other prosecutors, so “those schmoes who have lawyers less resolute” will keep getting prosecuted (so long as their cases don’t come to me, which they probably won’t).

    I know that even if you charge your client a flat fee and fully litigating the case would not cost your client a penny, prolonging the litigation disturbs your client’s life. And, of course, there’s the non-zero chance that an appellate court will believe we are both incorrect and will find the charge constitutional, thus creating what I believe to be unjust precedent and an unjust conviction.

    Considering my ethical obligations, what would you have me do?

    1. Dismiss the case, obviously. But don’t move to dismiss the appeal, if we’ve already appealed the denial of habeas. There is an argument that the appeal should proceed; let me work that out with the COA.

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