The State’s Argument in Ex Parte Thompson

Ronald Thompson was arrested last September for taking photographs of swimsuit-clad children at Sea World in San Antonio. He was charged with violating Texas’s improper photography statute:

A person commits an offense if the person:

(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room:

(A) without the other person’s consent; and

(B) with intent to arouse or gratify the sexual desire of any person….

He hired Don Flanary III, who made an as-written overbreadth challenge to the statute in an application for writ of habeas corpus. The San Antonio Court of Appeals found that the statute was content-neutral, but still found it unconstitutional under intermediate scrutiny.

Last week I went to the Court of Criminal Appeals to hear oral arguments on discretionary review. Don argued the case for Mr. Thompson, and he gave some of his time to Eugene Volokh to argue on behalf of amicus Reporters Committee for Freedom of the Press. (Protip: the interests of amicus are not always aligned with the interests of your client. Be wary of ceding argument time.)

The State argued that it has an interest in protecting people from being nonconsensual objects of sexual desire—a foolish notion. In aid of its argument, the State argued that the “consent” element saves the statute from overbreadth because “consent” is defined broadly enough in Section 1.07(a)(11) of the Penal Code to cover photos taken in public of people’s publicly exposed parts. Everyone who appears in public, the argument went, consents to pictures being taken of those parts of her body that are exposed to the public; the statute is aimed only at upskirt and other surreptitious photographs, and therefore is not overly broad.

(A judicial interpretation narrowing a statute can save it from First Amendment overbreadth. This is based on the legal fiction that people consider Court of Criminal Appeals opinions in deciding how to express themselves. To the contrary, people considering taking photos in public don’t review Court of Criminal Appeals opinions to decide how to frame their photos. If an overbroad statute has a chilling effect, a Court of Criminal Appeals opinion won’t diminish that effect.)

The State’s narrowing argument in Thompson’s case stinks. While the facts of the case are not legally relevant to the as-written challenge, if the State had interpreted Section 1.07(a)(11) as the prosecutor urged at the Court of Criminal Appeals, Mr. Thompson would never have been charged—the subjects of his photographs were in public. It’s disingenuous—arguably unethical—for the State to argue a theory of the law on appeal under which the State would never have charged the defendant in the first place. If the State had follow its proposed rule, the defendant would never have been charged, never had to go to the expense and trouble of hiring Don to defend him through three courts.

The Court of Criminal Appeals could adopt the State’s proposed narrowing of the law and find that the statute does not forbid taking photos of people’s exposed parts in public because people with parts exposed in public consent, as a matter of law, to those parts being photographed. (Part of Volokh’s argument was that this could save the statute from overbreadth, but might cause a vagueness problem.) If the Court of Criminal Appeals does this, Mr. Thompson wins. Bexar County loses, and could lose big—since, according to the State’s own logic, Mr. Thompson should never have been prosecuted, Bexar County might find itself writing him a large check after he files his Section 1983 suit.There are two ways to violate Texas’s Improper Photography statute—by making an image, (photograph or by videotape or other electronic means record) or by sharing an image (broadcast or transmit).
If the Court of Criminal Appeals strikes down the making portion of the statute, the sharing portion falls as well. If, however, the court upholds the making portion in Thompson as the State has urged, the sharing portion is still subject to First Amendment challenge—consent to be photographed is not the same as consent for those photographs to be shared.

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The Grumpy-Cat Rule

 

From the San Antonio Court of Appeals’ opinion in Ex Parte Thompson (PDF), which is before the Texas Court of Criminal Appeals on discretionary review (and will be argued tomorrow morning by Don Flanary III of San Antonio and Eugene Volokh of L.A.):

[W]e hold the plain language of the subsection 21.15(b)(1) does not “limit” or “restrict” the substantive content of photographs—in other words, it does not favor one type of photograph over another. See Turner, 512 U.S. at 642. Rather, the statute limits speech by imposing time, place, and manner restrictions that are unrelated to content. See Clark, 468 U.S. at 293. Accordingly, we hold subsection 21.15(b)(1) regulates speech in a content-neutral manner, requiring intermediate scrutiny. See id.

Here’s the gist of Texas Penal Code Section 21.15(b)(1):

A person commits an offense if the person photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room….

The San Antonio Court got the question of whether 21.15 is content-based or content-neutral wrong. (It matters because a content-based statute has to pass stricter scrutiny than a content-neutral one; the San Antonio Court found that 21.15 did not even pass the lesser scrutiny.)

If it is necessary to look at the content of the speech in question to decide if the speaker violated the law, then the regulation is content-based. Gresham v. Peterson, 225 F.3d 899, 905 (7th Cir. 2000).

With Section 21.15, it is necessary to look at the content of the speech (the photograph): if it contains “a visual image of another,” that is, a picture of a person, it can infringe the statute; if it does not contain a picture of a person, it cannot.

For the convenience of courts of appeals for whom this concept might be too complex, I offer the Grumpy Cat Rule: If the statute favors images of grumpy cats over other images, its regulation of speech is content-based.

 

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Harris County Criminal-Defense Residency

From Scott Ehlers at the Harris County Public Defender’s Office:

The Harris County Public Defender’s Office received a grant from the Department of Justice to establish the Future Appointed Counsel Training Program (FACT) for new lawyers committed to representing indigent defendants in Harris County.

The training includes a 14-day “boot camp” this summer , and 2 weekend follow-up trainings next year, all provided by Gideon’s Promise (online at: http://gideonspromise.org). The grant covers expenses for travel, lodging, meals, the 14-day “boot camp,” and the 2 follow-up trainings in Atlanta. There will also be a 2-day training on Harris County courts and Texas law, and a year of mentoring to be provided by top notch criminal defense lawyers, who will be paid for their time. There are 3 additional weekend trainings in Atlanta in 2016-2017. For those, training, lodging, and meals are paid for, but participants will be responsible for travel-related expenses.

Last year we selected the first class of FACT participants and mentors. This year we will be accepting the second class of 10 lawyers, licensed for 0-3 years. Students who graduate this May and take the bar this summer are eligible to apply.

A copy of the application is online here: http://harriscountypublicdefender.org/FACT-ReqforAppsForm-v2-2014.pdf. The deadline is March 31.

Please feel free to pass this along to any new lawyers or graduating law students who you believe will be good candidates.

Best,

Scott Ehlers
Legal and Policy Analyst
Harris County Public Defender’s Office

From Sarah “Bennett’s Brain” Wood, also at the PD’s Office:

Are you a fighter? Do you want to help the poor people who are chewed up and spit out every day in 1201 Franklin?
Apply now for the Future Appointed Counsel Training (FACT) Program – a unique, year-long education in criminal defense that aims to set 10 awesome new lawyers on the path to a career in indigent defense.
It will change your life.
Through a highly competitive application process, you can get:
GIDEON’S PROMISE (featured on HBO http://www.hbo.com/documentaries/gideons-army#/ ) - probably the most innovative criminal defense skills training in the country. Last year we sent 10 strangers to their two-week boot camp and they returned as friends for life – a team committed to changing our system.
You also get access to a group of awesome local mentors, a private listserv, regular meetings, and local trainings.
I know from experience that it is nearly impossible to break into the scene as a youngster. You have to want it bad. The FACT Program aims to take 10 lucky newbies and train the hell out of them to be savvy, confident defenders of the poor. And make them eligible for appointment.
This is your residency in defense. Your foot in the door. And our investment in the future.
 
 
Deadline is next Monday. Email me with questions.

I am one of the ten mentors this year. The program is everything that Scott and Sarah say, and more. The program, and the ten passionate young lawyers participating, give me some hope for the future of criminal defense in a world that is otherwise pretty bleak.

If you are taking the bar this summer, or if you are licensed 0–3 years, apply.

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The Ethics of Decolletage

My Three Commandments of Criminal-Defense Ethics:

I. Thou shalt not break the law.

II. Thou shalt put thine client’s interests above all else.

III. There will be times when (I) and (II) seem to clash; at those times thou shalt consult ethics counsel.

From Judge Richard Kopf, who has recommenced blogging at Hercules and the Umpire, in regard to lawyers wearing short skirts and low-cut blouses in court:

I have three rules that young women lawyers should follow when considering how to dress for court:

1. You can’t win. Men are both pigs and prudes. Get over it.

2. It is not about you. That goes double when you are appearing in front of a jury.

3. Think about the female law clerks. If they are likely to label you, like Jane Curtin, an ignorant slut behind your back, tone it down.

I’m with the judge, more or less (I think men are only prudes when prudishness either benefits them socially or helps them keep the female competition down), on the first two rules.

But I don’t think there are many women lawyers who don’t already know these things, and the third rule strikes me as patronizing, as though women who dress for effect don’t know exactly what they are doing.

I wear well-tailored suits because a suit that fits well makes a man look better—taller, fitter, a more suitable mate: in short, more attractive. And more attractive people are viewed as more credible.  I know what I’m doing; women—who have been socialized since birth to take care of their appearances since —do as well.

Women who dress to show some skin in court do so for the same reason. As an added bonus, they know that we men—whether opposing counsel, judge, or juror—have difficulty thinking in the presence of pulchritude. It’s effortless razzle-dazzle:

So what about those female law clerks who “seethe and sneer” and call the “really good” woman lawyer “unprofessional” behind her back because she “wears very short skirts and shows lots of her ample chest”? They may be motivated by envy, by the idealistic aspiration that women be treated the same as men in court, or by the secret desire that no woman succeed any more than the least successful. Girls are mean to each other for myriad reasons.

But the motivation doesn’t matter, because the law clerks don’t matter. They are not deciding the client’s case. All that matters is the jury and occasionally the judge. Of course any performer must know her audience—for a chambers conference with a female judge and her female law clerks, the costume might well be different—but if it benefits the client for the male judge and a mostly-male jury to get a flash of boob, then boob must be flashed.

That’s the natural consequence of the second rule, both mine and Judge Kopf’s. Patronizing or not, Kopf’s third rule is nonsense. Just as “it” is “not about you,” it is not about the female law clerks. It is about the client.

Nobody wants to see me in a short skirt—my best assets are above the neckline—but if I knew I could get an edge for my client by wearing a miniskirt and a low-cut blouse, I’d do it without hesitation. Any woman lawyer needs the same attitude, regardless of the backroom nitpicking of the female clerks.

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Dirty-Talk Statute Dead in Texas, and a Misquote

This morning the Court of Criminal Appeals denied the State’s Motion for Rehearing (PDF) in my case invalidating Section 33.021(b) of the Texas Penal Code.

The court pointedly ignored the Attorney General’s effort to intervene, and found that Section 402.010 of the Texas Government Code was also unconstitutional, in violation of the Separation of Powers provision of the Texas Constitution.

In related news, I’m pretty sure this purported quote in Mitch Mitchell’s Fort Worth Star-Telegram article about the case…

“It’s OK for adults to talk dirty to children,” said Mark Bennett, the Houston attorney who defended Lo.

…is a misquote, or at least out-of-context. I’ve never suggested that it’s okay for adults to talk dirty to children (unless in “talking dirty” you include all “sexually explicit” communication forbidden by 33.021(b)). Legal? Yes. My position from the beginning is that it’s not okay, but that it’s parents’—and not government’s—job to regulate what kids see and hear.

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True Believers Redux

Six and a half years ago Scott Greenfield wrote The Fallacy of True Believers, about the danger of true believers:

But Bill [Kunstler] was a scary guy.  Bill was a true believer in the cause, not that I was ever quite clear what the cause was because abject liberalism is an ever changing line.  Bill existed for the cause, not the client.  If the cause demanded that the client burn, so be it.  He took a long range view of the world, and the cause was far more important than any individual, with their petty problems.  So us stupid kids who found ourselves in his orbit learned quickly that our focus, the client, was mere canon fodder to Bill.  And he could be far more dangerous (because he was far smarter, quicker and stronger) than any prosecutor we had ever met.

More recently Charles Thomas’s Don’t rape started a discussion of lawyers putting their own feelings above the effective representation  of their clients. Some more contributors to the string: meMax Kennerly, me again, and Matthew Wright.

Wright describes a CRA (Civil Rights Attorney) and a CDA (Criminal Defense Attorney) and their differing views on what appellate issues should be pursued for the client:

The broader question is what consideration, if any, should be given to “the Cause” when deciding which issues to press on behalf of a client?

CRA, like most attorneys involved primarily in issue advocacy, believes that an advocate should give careful consideration to the broader legal landscape and other plaintiffs/ criminal defendants/ immigrants / [other marginalized group] before raising a “longshot” issue.…

CDA, on the other hand, ignores the rest of the world when evaluating issues for a legal challenge, be it an appeal, pretrial motion, or petition for judicial review.

He asks:

What about you? How much consideration do you give to “the cause” when deciding which cases to take or which issues to argue? Do those considerations only come into play when the issue under consideration is a probable loser?

For the CDA, the client—not “clients generally” nor “society” nor “the lawyer’s feelings—must be The Cause. If making an argument will help the client more than leaving it out, the lawyer makes the argument. Any interest other than the client’s best interest is a conflicting interest, and cannot be acted on without the client’s informed consent.

Maybe the client presented with the opportunity to give informed consent—

Mr. Schmoe, we could make this novel argument that the search in your case was bad, and we might win and keep you out of prison. It won’t cost you anything if we lose. But the facts in your case are pretty bad, so we will probably lose. It’d be better for society—but won’t help you—if someone else with  better facts makes the novel argument.

—will take one for the team: clients do all sorts of stupid things. But absent client consent to put some other interest ahead of the client’s, the CRA is way out of bounds doing so. She can consider “the cause” when deciding what cases to take, she can’t do so without the client’s permission when deciding how to achieve the client’s goals.

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In Which I Am Not Happy With Steve Greenleaf

A few days ago, I wrote a post, Great Cicero’s Ghost. It was part of a discussion of legal ethics, causes, and conflicts of interest, arising from this post by Charles Thomas (which in turn arose from this post by Scott Greenfield).

The discussion continued with Max Kennerly’s “thoughts” (“there’s no requirement for the utmost zeal in representation, so we know that there’s no absolute duty to make a particular argument just because it might confer some advantage on the client”), my response to Kennerly,  Matthew Wright’s view (to which I tried to respond, but failed because I’m stubborn about not signing in to wordpress.com to comment; I’ll blog about it later). This is all in the best disputatious tradition of the practical blawgosphere. Bruce Godfrey commented too, in an annoyingly selfrighteous passive-aggressive happyspherical “I’m going to tell you what people said but I’m not going to link to them” way.

You see what I did there? I mentioned some interesting posts, and I linked to them—whether I agree with them or not—so that you could go read them yourself. That is the way the blawgosphere works. Charles and Scott and Max and Matthew and even Bruce get a little bit of “link love”; my readers who are interested in reading their whole posts have to go their blogs, where Charles and Scott and Max and Matthew and even Bruce have a chance of capturing those readers’ attention with the other things that they have written. Writing is work, and I shouldn’t deprive Charles or Scott or Max or Matthew or even Bruce of eyeballs on their own blogs.

That’s not Steve Greenleaf’s style. A self-styled “freelance lawyer,” Greenleaf copies someone’s entire blog post and republishes it on his blog with a paragraph or so of his own commentary above it. He does link to the original, which makes him a little better than those who copy others’ blog posts and republish them without linking to the original.

This is not how the blawgosphere works. Reprinting someone else’s content in its entirety is the wrong thing to do. Someone other than Greenleaf put work into every post that he copies; he has no right to steal that work by publishing it on his own site, either with attribution or without.

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Lying Law Prof Mary Anne Franks Comes to Town

Thanks to the Houston Chronicle, Cyber Civil Rights Initiative activist Mary Anne Franks got to bring her special brand of authoritarianism to my neck of the woods:

Franks dismissed claims by some groups, like American Civil Liberties Union, that criminal penalties for posting the photos infringes on behavior protected by the First Amendment.

“This isn’t protected speech, at least under any theory I can think of,” she said.

Rogers called me after talking to Franks, and I was quoted directly following her:

Other lawyers disagree, including Houston attorney Mark Bennett, who said the proposed laws, including the ones written by Franks, are unconstitutional.

Had I known exactly what Franks had told Brian Rogers, I would have said, “any idiot with a law degree knows the theory under which this is protected speech. If Franks can’t think of a theory under which revenge porn is protected speech, she’s incompetent.” But I don’t think she’s incompetent going on. I think she’s lying to Rogers. She does have a history, after all, of being untruthful about these matters.

Franks knows why revenge porn is protected speech: because speech is protected unless it fits into a recognized category of unprotected speech. She has made arguments for squeezing revenge porn into one category or another; I have shown why those arguments are specious. She has not responded, though she has claimed to have done so. She has never had to defend her thesis.

In their article Franks and Danielle Citron write, “Nonetheless, First Amendment doctrine holds that not all forms of speech is subject to strict scrutiny.” They provide no cite, and I contend that this is inaccurate: that all content-based speech restrictions are subject to strict scrutiny, and that they satisfy such scrutiny only if the government can show that no substantial amount of speech they restrict is unprotected. I look forward to seeing their cite for their proposition in the completed article.

They also misquote Eugene Volokh:

In his view, non-consensual pornography lacks First Amendment value as a historical matter and should be understood as categorically unprotected as obscenity.

Here’s what Volokh actually said:

But even under this sort of historical approach, I think nonconsensual depictions of nudity could be prohibited. Historically and traditionally, such depictions would likely have been seen as unprotected obscenity (likely alongside many consensual depictions of nudity). And while the Court has narrowed the obscenity exception — in cases that have not had occasion to deal with nonconsensual depictions — in a way that generally excludes mere nudity (as opposed to sexual conduct or “lewd exhibition of the genitals”), the fact remains that historically such depictions would not have been seen as constitutionally protected.

That’s could, not should. Revenge porn could be treated as obscenity just as “consensual depictions of nudity” could be. I don’t think we want to open that particular door.

It may be that the Supreme Court will eventually recognize revenge porn as being in some category of unprotected speech. Citron thinks that an element of harm may be required for revenge porn statutes to withstand overbreadth challenges; Franks disagrees.

I’m with Citron1: the chances that a revenge-porn criminal statute will pass muster are better if the statute requires proof of harm—or, in my view even better, intent to cause harm. We would probably disagree on what “harm” is; I think there’s a modern tendency to treat hurt feelings and embarrassment as harm, and I would require an intent to cause more severe emotional distress than that.

I doubt that Franks is stupid. What endgame could she possibly envision, trying to pass statutes that even her coauthor thinks have First Amendment issues? Five years (at most) under her regime, before the massive rollbacks when the first such statute hits the Supreme Court? I don’t see anyone being helped by that but her.


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Arizona’s Revenge-Porn Bill, HB 2515

Arizona HB2515:

AN ACT

AMENDING TITLE 13, CHAPTER 14, ARIZONA REVISED STATUTES, BY ADDING SECTION 13?1425; RELATING TO sexual offenses.

Be it enacted by the Legislature of the State of Arizona:

Section 1.  Title 13, chapter 14, Arizona Revised Statutes, is amended by adding section 13-1425, to read:

13-1425.  Unlawful distribution of images; state of nudity; classification; definition

A.  It is unlawful to knowingly disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording or other reproduction of another person in a state of nudity or engaged in a sexual act without obtaining the written consent of the depicted person.

B.  This section does not apply to any of the following:

1.  Lawful and common practices of law enforcement, reporting criminal activity to law enforcement, or when permitted or required by law or rule in legal proceedings.

2.  Medical treatment.

3.  Images involving voluntary exposure in a public or commercial setting.

C.  A violation of this section is a class 5 felony, except that a violation of this section is a class 4 felony if the depicted person is recognizable.

D.  For the purposes of this section, “state of nudity” has the same meaning prescribed in section 11?811.

(H/T Adam Steinbaugh via Twitter.)

Incidentally:

“state of nudity” means any of the following:

(a) The appearance of a human anus, genitals or a female breast below a point immediately above the top of the areola.

(b) A state of dress that fails to opaquely cover a human anus, genitals or a female breast below a point immediately above the top of the areola.

So you take a picture of your wife in a nice dress with plenty of decolletage (revealing part of the breast lower than than the top of the areola), and you show it to someone without her written consent. If you’re in Arizona, that’s a felony.

Or you repost an image of Janis Jackson’s 2004 Superbowl wardrobe malfunction (revealing a portion of the breast below the areola) on your blog. Boom, felony.

Doesn’t pass the smell test. But let’s do the First Amendment analysis.

Does it restrict speech? Yes: displaying, distributing or publishing a visual depiction (“reproduction”?) is speech.

Is it a content-based restriction? Yes: it forbids distributing images of another person “in a state of nudity,” but not cat pictures.

Does the forbidden speech fall into one of the historically recognized categories of unprotected speech to which First Amendment protections do not apply?

  • Obscenity? Some of the depictions might coincidentally be obscene, but “might” is not good enough to invoke the exception.
  • Defamation? The images (reproductions?) are presumably true, and truth is a defense to defamation.
  • Fraud? Nope.
  • Incitement? Nope.
  • Speech integral to criminal conduct? Nope. Publishing the images might be part of the criminal conduct of extortion (for which revenge-porn purveyors are being prosecuted), but not necessarily and, again, “might” is not enough.

Since no heretofore-discovered category of historically unprotected speech covers the speech that  the Arizona legislature would forbid, here we have a proposed law, short and sweet, that, to pass constitutional muster, would require the discovery of a new category of unprotected speech.

As I’ve said before, it might happen, but I’m not betting on it.

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