The State’s Revenge Porn Arguments 5: “Essentially Intolerable Invasions of Privacy.”

Failing to make the case that revenge porn falls into one of the categories of unprotected speech listed by the Supreme Court in its recent cases (notably Stevens and Alvarez), the State does some jailhouse lawyering.

“Jailhouse lawyering” is bad legal analysis, usually involving taking some snippet of language out of context and loading it with great significance.

There are some competent lawyers in prison law libraries, but there are also a lot of people who want to get a certain result and can read, but don’t understand how the law actually works.

Same with Texas DAs’ Offices.

Here’s the snippet the DAs latch onto and load with great significance:

The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.

That’s from Cohen v. California, the Supreme Court’s 1971 “fuck the draft” case.

You will, if you don’t have any particular outcome in mind, notice—you don’t even have to read the whole case—that the Court is talking about shutting off discourse “solely to protect others from hearing it.”

Section 21.16(b) of the Texas Penal Code is about protecting people from being the subjects of certain speech, not protecting them from hearing it.

The distinction might strike you as important—if the Supreme Court had meant that discourse could be shut off to protect its subject, it might have left off the “solely to protect others from hearing it.”

The Supreme Court would agree with you that the distinction is important: in Organization for a Better Austin v. Keefe, the same term as Cohen, the Court noted, “Among other important distinctions, respondent is not attempting to stop the flow of information into his own household, but to the public.”

Keefe was a prior-restraint case; prior restraints are the nearest equivalent, in civil court, of content-based penal statutes. The Court in Keefe dissolved the injunction because the respondent, Mr. Keefe, was trying to stop the flow of information to the public.

Cohen cannot be made to stand for the proposition that speech invading its subjects’ substantial privacy interests in an essentially intolerable manner is unprotected speech.

In fairness to the State’s jailhouse lawyers, lawyers in Texas courts of appeals make the same amateurish mistake. In online-impersonation, fraudulent-use-of-identifying-information, and improper-photography cases Texas appellate courts have cited the Cohen language in support of restrictions on speech that violates its subjects privacy.

Cohen did not uphold a restriction on speech. It is axiomatic that, unless the opinion upholds a restriction on speech, language that appears to support some restriction on speech is dicta.

And, since I like to make sure a bad legal argument is dead-dead-dead: Even if Cohen‘s “essentially intolerable” language were not dicta, and even if Cohen were talking about the privacy of the subject of the speech, Cohen would not stand for what the State wants it to stand for—a recognized category of historically unprotected speech.

If Cohen had recognized a historically unprotected category of speech based on the invasion of its subject’s privacy, there would have been another Supreme Court case in the 46 years since Cohen approving a content-based restriction of speech because it invaded its subject’s privacy.

There has not been. The Supreme Court has never upheld a civil or criminal penalty for truthful speech because it violated its subject’s privacy. Instead, the Supreme Court has “repeated[ly] refus[ed] to answer categorically whether truthful publication may ever be punished consistent with the First Amendment” because “the future may bring scenarios which prudence counsels our not resolving anticipatorily.”

The Supreme Court would have to do that thing that it has repeatedly refused to do—answer that question categorically—to adopt the State’s proposed category of unprotected speech.

The reason for its concern about answering the question categorically is revealing: The Court could say, “yes, truthful publication may sometimes be punished consistent with the First Amendment,” without limiting the Court’s options in future scenarios; only if the Court were to answer the question in the negative—”no, truthful publication may not sometimes be punished”—would the answer resolve future scenarios.1

While the “essentially intolerable invasions of privacy” language is convenient, and while Texas appellate courts have uncritically mentioned it in situations divorced from the context of “protect[ing] others from hearing it,” it has no application to section 21.16(b), and will not survive scrutiny as a justification for that statute.


  1. “Anticipatorily.” 

1 Comment

  1. “Jailhouse lawyering”

    What is bad is that most of the Jailhouse lawyering (DA’s) is done by those with blinders on. They can only see what they want to see. They do not read what the case talks about, only a piece of a sentence that they think will free (work for) them. Then the Jailhouse Lawyers (DA’s) tend to take advantage of others that are not capable of fighting their case. This is how most Jailhouse Lawyers make a living. Yes, make a living.

    I like to tend to think like Scalia, it is ok for you to think that this piece of law says what you want it to say but first, prove it to me. Show me the the law that backs it up, what cases does it refer to, how do they refer back? How do our sister States stand on this ruling? As Tom Cruise says.”Show me the money”… Then if your lucky, maybe after 3-5 years of hard work, hand writing each motion on cheap paper with a ruler and a cheap pen we might get to address an appeals court. But most likely not.

    I salute the hard working Lawyers that stick to their guns and continue the fight to ensure that the Rights of the average American are conserved as well as the legitimate Jailhouse Lawyer that is truly working to right a perceived wrong, being his case or anothers.

    REP-Abogado Carcel

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