2016.020: The Intimate Privacy Protection Act of 2016

Via scribd:

(a) IN GENERAL.—Whoever knowingly uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to distribute a visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or of the naked genitals or post-pubescent female nipple of a person, with reckless disregard for the person’s lack of consent to the distribution, shall be fined under this title or imprisoned not more than 5 years, or both.

(b) EXCEPTIONS.—

(1) LAW ENFORCEMENT AND OTHER LEGAL PROCEEDINGS.—This section—

(A) does not prohibit any lawful law enforcement, correctional, or intelligence activity;

(B) shall not apply in the case of an individual reporting unlawful activity; and

(C) shall not apply to a subpoena or court order for use in a legal proceeding.

(2) VOLUNTARY PUBLIC OR COMMERCIAL EXPOSURE.—This section does not apply to a visual depiction of a voluntary exposure of an individual’s own naked genitals or post-pubescent female nipple or an individual’s voluntary engagement in sexually explicit conduct if such exposure takes place in public or in a lawful commercial setting.

(3) CERTAIN CATEGORIES OF VISUAL DEPICTIONS EXCEPTED.—This section shall not apply in the case of a visual depiction, the disclosure of which is in the bona fide public interest.

(4) TELECOMMUNICATIONS AND INTERNET SERVICE PROVIDERS.—This section shall not apply to any provider of an interactive computer service as defined in section 230(f)(2) of the Communications Act of 1934 (47 U.S.C. 230 (f)(2)) with regard to content provided by another information content provider, as defined in section 230(f)(3) of the Communications Act of 1934 (47 U.S.C. 230(f)(3)) unless such provider of an interactive computer service intentionally promotes or solicits content that it knows to be in violation of this section.

(c) DEFINITIONS.—In this section:

(1) Except as otherwise provided, any term used in this section has the meaning given that term in section 1801.

(2) The term ‘visual depiction’ means any photograph, film, or video, whether produced by electronic, mechanical, or other means.

(3) The term ‘sexually explicit conduct’ has the meaning given that term in section 2256(2)(A).

Let’s fisk it.

Whoever knowingly uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce…

This is the interstate-commerce hook that purports to give federal courts jurisdiction.

…to distribute a visual depiction…

The distribution of visual depictions is speech. Remember that a content-based restriction on speech is presumptively void unless the speech falls into a category of unprotected speech.

…of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or…

This makes the restriction content-based. The fact-finder has to look at the image to determine whether it violates the statute. A visual depiction of an identifiable person playing croquet does not trigger the statute, but a depiction of an identifiable person having sex does.

… of the naked genitals or post-pubescent female nipple of a person, …

I know that legislators aren’t very good at grammar, but I don’t see how this can be read other than to mean that two sorts of images are prohibited:

  1. A visual depiction of a person who is identifiable from the image itself or information displayed in connection with the image and who is engaging in sexually explicit conduct, or
  2. A visual depiction of the naked genitals or post-pubescent female nipple of a person.

So a depiction of an unidentifiable person engaging in sexually explicit content does not trigger the statute unless the depiction includes his naked pink parts, in which case it doesn’t matter that he is unidentifiable. This statute, like others, will capture the innocent behavior of sharing naked baby pictures.

…with reckless disregard for the person’s lack of consent to the distribution…

This is the culpable mental state, or mens rea, requirement. It’s not very strong. While it’s greater than Mary Anne Franks’s proposed “knew or should have known” (negligence) standard, it doesn’t satisfy Danielle Citron’s demand that “it is crucial to craft narrow statutes that only punish individuals who knowingly and maliciously invade another’s privacy and trust.”

…shall be fined under this title or imprisoned not more than 5 years, or both.

Five years in prison for reckless conduct. Five years for sharing naked-baby pictures on Facebook. Five years for conduct that may or may not have caused some real-world harm.

(b) EXCEPTIONS.—

(1) LAW ENFORCEMENT AND OTHER LEGAL PROCEEDINGS.—This section—

(A) does not prohibit any lawful law enforcement, correctional, or intelligence activity;

(B) shall not apply in the case of an individual reporting unlawful activity; and

(C) shall not apply to a subpoena or court order for use in a legal proceeding.

The usual authoritarian exceptions: what is forbidden and presumed harmful when engaged in by the people is expressly permitted to the state.

(2) VOLUNTARY PUBLIC OR COMMERCIAL EXPOSURE.—This section does not apply to a visual depiction of a voluntary exposure of an individual’s own naked genitals or post-pubescent female nipple or an individual’s voluntary engagement in sexually explicit conduct if such exposure takes place in public or in a lawful commercial setting.

The commercial-porn-and-exhibitionism exception.

(3) CERTAIN CATEGORIES OF VISUAL DEPICTIONS EXCEPTED.—This section shall not apply in the case of a visual depiction, the disclosure of which is in the bona fide public interest.

The you-can-trust-government provision. I discuss it here; as Professor Neil Richards writes, “the power to declare facts or topics to be off limits to public discussion is in a very real sense the power to censor.”

(4) TELECOMMUNICATIONS AND INTERNET SERVICE PROVIDERS.—This section shall not apply to any provider of an interactive computer service as defined in section 230(f)(2) of the Communications Act of 1934 (47 U.S.C. 230 (f)(2)) with regard to content provided by another information content provider, as defined in section 230(f)(3) of the Communications Act of 1934 (47 U.S.C. 230(f)(3)) unless such provider of an interactive computer service intentionally promotes or solicits content that it knows to be in violation of this section.

I’ll leave this to the Section 230 experts.

(c) DEFINITIONS.—In this section:

(1) Except as otherwise provided, any term used in this section has the meaning given that term in section 1801.

(2) The term ‘visual depiction’ means any photograph, film, or video, whether produced by electronic, mechanical, or other means.

(3) The term ‘sexually explicit conduct’ has the meaning given that term in section 2256(2)(A).

Here, for future reference, is that definition:

(A) Except as provided in subparagraph (B), “sexually explicit conduct” means actual or simulated—
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person;

There was a spate of state revenge-porn statutes passed in the last couple of years. There have not been many of prosecutions under these statutes. This suggests that the problem is not as great as the criminalizers led the state legislatures to believe.

The Intimate Privacy Protection Act of 2016 is a content-based restriction on speech, unconstitutional under current Supreme Court caselaw. In order for the Supreme Court to uphold it, it would have to recognize a category of historically unprotected speech that includes nonconsensual pornography. Check out my discussion of defining such a category here, beginning at “So how would we…”.

IPPA’s advocates have written a presumptively unconstitutional statute. They have not suggested a path to constitutionality. They address a problem that has not been overwhelming state criminal-justice systems.

Perhaps there are better uses for Congress’s time.

 

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2016.019: Scurry Scurry, Scurrae

A couple of days ago in felony court a guy who was supposed to go into custody decided that he didn’t want to go. The bailiff and the process server (both Harris County Sheriff’s Deputies) wrestled him to the ground. While they were having some difficulty subduing him, someone (the court coordinator, I think — I was focused on the wrestling match) came up to the two prosecutors who were standing near me, whispered, “the deputies have guns, and he might get a gun, so you should go in the back,” and led them out of the courtroom, leaving me, the third prosecutor, and everyone in the audience to — in that imagined scenario — get shot by the out-of-control defendant.

I could have left too, but in my view the risk that the guy would a) get a gun; b) discharge it; and c) hit me was smaller than the risk that I would twist my ankle leaving the courtroom. If I’d thought otherwise, I would have politely but persuasively suggested that the audience (and the third prosecutor) leave.1 Why? Because while I have a keen sense of self-preservation, that sense doesn’t exclude the preservation of other people.

I don’t get up at trial and loudly claim to represent the people of Harris County in trial, and then skitter quietly into my hole, leaving those same people to fend for themselves, when I imagine a threat to my own skin.

But hey, Harris County prosecutors. You do you.


  1. I probably wouldn’t have left, on the theory that if he got a gun the chance that the guy not hit me was much larger than the chance that he would, and in that margin I might be helpful. 

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2016.018 Why It’s Time to Repeal the First Amendment

I teach the Constitution for a living. I revere the document when it is used to further social justice and make our country a more inclusive one. I admire the Founders for establishing a representative democracy that has survived for over two centuries.

But sometimes we just have to acknowledge that the Founders and the Constitution are wrong. This is one of those times. We need to say loud and clear: The First Amendment must be repealed.

As much as we have a culture of reverence for the founding generation, it’s important to understand that they got it wrong — and got it wrong often. Unfortunately, in many instances, they enshrined those faults in the Constitution. For instance, most people don’t know it now, but under the original document, Mitt Romney would be serving as President Obama’s vice president right now because he was the runner-up in the last presidential election. That part of the Constitution was fixed by the Twelfth Amendment, which set up the system we currently have of the president and vice president running for office together.

Much more profoundly, the Framers and the Constitution were wildly wrong on race. They enshrined slavery into the Constitution in multiple ways, including taking the extreme step of prohibiting the Constitution from being amended to stop the slave trade in the country’s first 20 years. They also blatantly wrote racism into the Constitution by counting slaves as only 3/5 of a person for purposes of Congressional representation. It took a bloody civil war to fix these constitutional flaws (and then another 150 years, and counting, to try to fix the societal consequences of them).

There are others flaws that have been fixed (such as about voting and Presidential succession), and still other flaws that have not yet been fixed (such as about equal rights for women and land-based representation in the Senate), but the point is the same — there is absolutely nothing permanently sacrosanct about the Founders and the Constitution. They were deeply flawed people, it was and is a flawed document, and when we think about how to make our country a more perfect union, we must operate with those principles in mind.

In the face of yet another mass publication of nonconsensual pornography, now is the time to acknowledge a profound but obvious truth – the First Amendment is wrong for this country and needs to be jettisoned. We can do that through a Constitutional amendment. It’s been done before (when the Twenty-First Amendment repealed prohibition in the Eighteenth), and it must be done now.

The First Amendment needs to be repealed because it is outdated, a threat to liberty and a privacy suicide pact. When the First Amendment was adopted in 1791, there were no communications devices remotely like the laptop computer and many of the advances of modern communication were long from being invented or popularized.

Sure, the Founders knew that the world evolved and that technology changed, but the communications devices of today that are easily accessible are vastly different than anything that existed in 1791. When the First Amendment was written, the Founders didn’t have to weigh the risks of one man offending thousands all by himself. Now we do, and the risk-benefit analysis of 1791 is flatly irrelevant to the risk-benefit analysis of today.
Speech-rights advocates like to make this all about liberty, insisting that their freedom to speak is of utmost importance and that restricting their freedom would be a violation of basic rights.

But liberty is not a one way street. It also includes the liberty to enjoy a night out with friends, loving who you want to love, dancing how you want to dance, in a club that has historically provided a refuge from the hate and fear that surrounds you. It also includes the liberty to go to and send your kids to kindergarten and first grade so that they can begin to be infused with a love of learning. It includes the liberty to go to a movie, to your religious house of worship, to college, to work, to an abortion clinic, go to a hair salon, to a community center, to the supermarket, to go anywhere and feel that you are free to do to so without having to weigh the risk of being hurt by someone wielding a communication device that can easily offend or embarrass you and countless others.

The liberty of some to speak cannot take precedence over the liberty of everyone to live their lives free from the risk of having their dignity harmed. It has for too long, and we must now say no more.

Finally, if we take the free-speech lobby at their word, the First Amendment is a suicide pact to our privacy. As they say over and over, the only way to fight hate speech is with more speech. In other words, please those who engage in hate speech by encouraging even the vast majority of Americans who do not speak up to speak.

Just think of what would have happened to Hulk Hogan if there had been many others writing. On a crowded, dark, loud Internet, after Gawker posted, imagine if others took out their computers and started writing back. Yes, maybe they would have chastised Gawker, but how would anyone else have known what exactly was going on? How would it not have devolved into mass confusion and fear followed by a large-scale argument without anyone knowing who was the good guy with a computer, who was the bad guy with a computer, and who was just caught in the middle? The offense toll could have been much higher if more people were armed.

The free-speech lobby’s mantra that more people need to speak freely will lead to an obvious result — more people will be offended. We’d be walking down a road in which hate speech is a common occurrence, all because the First Amendment allows it to be.

At this point, bickering about the niceties of textual interpretation, whether the history of the amendment supports this view or that, and how legislators can solve this problem within the confines of the constitution is useless drivel that will lead to more of the same. We need a mass movement of those who are fed up with the long-dead Founders’ view of the world ruling current day politics. A mass movement of those who will stand up and say that our founding document was wrong and needs to be changed. A mass movement of those who will thumb their nose at FIRE, an organization that is nothing more than the political wing of the country’s wrongthinkers, and say enough is enough.

The First Amendment must be repealed, and it is the essence of American democracy to say so.

(As well as the First, obviously the Second.)

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2016.017: I’m The Asshole the Robs Deserve

“Rob” commented:

An investment banker closing a factory that has been a small town’s economic lifeblood and shipping those jobs off to Indonesia is creating value for the shareholders, and thus doing what is ethical and appropriate within the context of how he chooses to make his living. It’s choosing to make his living this way which makes him an asshole.

A CIA operative who waterboards a terror suspect is doing what is correct and expected within the context of how he chooses to make his living. It’s choosing to make his living this way that makes him an asshole.

Someone who chooses to make his living destroying rape victims on the stand is an asshole, or at least has a mean streak a mile wide.

Some of you might expect me to argue with this. Surprise!: Rob is right in the end.1

“Say please, say thank you, take your turn, don’t cuss in church, respect authority”: A society has agreed behavioral norms, which help people to live together comfortably in that society. A society’s norms are, roughly, the things you needed to know that you learned in kindergarten. Most people break these norms in private or occasionally without consequence, but people who  violate society’s norms consistently and defiantly are “assholes” to those who follow the norms.2

When I talk about a society’s norms I’m not talking about the law, which is a formal system overlaid on the norms.

For example, American society’s norms for treatment of victims include deference. The law does not include this. Instead, under the law, the “victim” is just a witness whose story gets tested like any other. American society’s norms for treatment of people accused of wrongdoing include shunning. The law does not. Instead, under the law, the accused is innocent until proven guilty.

But overlaying a formal system on the norms does not eliminate the norms. There are cases in which the law mimics the norms, as in crimes mala prohibita. And even when the law differs from the norms, the norms are still there, and decent people are expected to follow them most of the time. So for example you might, in your ordinary life, reflexively believe a woman who claims that she was raped, but still be able to serve on a jury if the law required you to presume the accused innocent.

You see what I’m getting at here: The criminal-defense lawyer shatters these (and other) norms. She flouts the will of society, routinely and proudly. When society tells her that she should follow the norms — that she should believe the victim, not slut-shame, not victim-blame — she has the gall to tell society that it, and not she, is wrong. So the criminal-defense lawyer is — if not definitionally, then damn near — an asshole. What’s more, when society (in the form of, say, Rob) tells the criminal-defense lawyer she’s an asshole for defending people accused of rape, she laughs in Rob’s doughy face and tells him to go fuck himself. So not only is she defiant about violating the norms, but she’s defiant about defiantly violating the norms, which is the greatest sin of all — “don’t be an asshole” is a norm of paramount importance to comfortable people like Rob3 because is the fear of being an asshole that society uses to keep people from breaking the norms.
Rob would never be a criminal-defense lawyer or a CIA officer or an investment banker. Good for Rob -0b -b. B- ba- Baa. None of us should live any farther from society’s norms than we want to. Baaa.
This won’t be the first time I’ve copped to being an asshole. I comfort the afflicted, and am an asshole to the comfortable, and I’m okay with that. Because it it’s Rob or his son or nephew who is falsely accused of rape, he’s going to want a criminal-defense lawyer who is more than willing to “destroy” the lying complainant on the witness stand.I am not the asshole the Robs of the world need right now, but when the day comes, I’ll still be here.


  1. I’ll leave the niggling details to the nitpickers. 

  2. If that isn’t definitional, it’s damn near. 

  3. So much so that calling someone an “asshole” is seen as a harsh insult! 

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2016.016: Jill Filipovic Makes Readers Stupider

When someone writing for a popular website says:

Before I was a journalist full-time, I was a lawyer. I didn’t do criminal defense work, but I am the daughter of a public defender, and the friend, former classmate, and former colleague of dozens of defense lawyers. I’m not a religious person, but if there is anything I believe is the Lord’s work, it is criminal defense, especially as a public defender for the indigent. It is under-paid, vilified, time-sucking, emotionally depleting work. It is also the backbone of our justice system. It is the last line of defense — the only line of defense — for millions of people, many of them young men, many of them poor, many of them of color, in a criminal justice system that houses more people in prisons than any society in the history of the world. Here in the United States, we put people in jail for a very long time and we ostracize them when they come out, breeding cycles of crime, poverty, and marginalization. Large corporations profit from this mass incarceration; politicians are elected because of it. We have built a moral disaster, and criminal defenders are some of the only bulwarks against that.

… you just know there’s a big “but” coming along.

And sure enough:

There’s an opportunity and an obligation for the legal profession here too. While the American Bar Association offers lots of information on representing or recommending legal counsel to victims of sexual violence, there’s far less guidance on the ethics of defending those accused. There’s no question that it is of course ethical to defend accused rapists, but the how matters. Does a zealous defense require going down every possible avenue, including those that feed into misogyny and victim-blaming — and which create future case law that entrenches misogyny and victim-blaming as par for the course in defending sexual violence cases? How does one draw the line, even, between victim-blaming and painting the circumstances in a light most favorable to your client — especially if your only defense is consent? Do lawyers have an obligation only to the individual client before them, or is there some greater duty we owe society to not cement its greatest ills into place — which would require not playing on racial animus or sexism or other forms of bias that lawyers can, and routinely do, manipulate to further their case?

These are not easy questions, and, even among feminist lawyers, there are not simple, clear answers. What is obvious is that we are long overdue for a profession-wide grappling.

Criminal defense is the Lord’s work … but maybe not if it feeds into misogyny and victim-blaming. It is (“of course”) ethical to defend accused rapists, as long as you don’t defend them too zealously.

Jill Filipovic says these “are not easy questions.” That may be true among the ethically clueless, but they actually are easy questions among the only lawyers whose opinion matters: not “the profession,” but the criminal-defense lawyers who face from day to day the question, “how hard should I come at this witness?”

Filipovic casts herself as one of those facing these questions: “is there some greater duty we owe society…?” Filipovic is not one of us. Most lawyers are not criminal-defense lawyers. They might like to think of themselves as being in the club with Atticus Finch, but they aren’t. They belong to very different clubs, they make different impacts on the world, and most importantly they have different measures of success. Criminal-defense lawyers don’t generally give a damn what these other lawyers think about what we do.

Why? Because unless you are on our jury, our contract — the Sixth Amendment — trumps your feelings about the job we are doing, the questions you are asking, or the arguments we are making. We figure — and Filipovic’s article (she’s the daughter of a public defender, no less) confirms — that if you are not one of us you have no clue about the ethics of the job.

So: You want to shame us into going easy on accusers? The Sixth Amendment trumps your shame. You want to call it “victim blaming” when we don’t go easy on accusers? The Sixth Amendment trumps your catchphrases. You want the ABA to offer guidance on defending those accused of rape in a politically correct way? Screw the ABA. The Sixth Amendment trumps that too.

There is plenty of opportunity for social activism when we are off duty, but the criminal-defense lawyer’s sole duty to society in the representation of a client is to defend the client as zealously as the law permits. This is neither a close call or a new idea:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.

—Henry Peter Brougham, 1st Baron Brougham and Vaux. (H/T Nicholas Sarwark.)

(I’ve also written about this here.)

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2016.015: A Prosecutor is Falsely Accused

I’m not buying it.

I don’t believe that Harris County ADA Justin Keiter “used his DEA thugs to write a JUDGELESS WARRANT to attempt to terrorize Dr. Blanchette by Trashing Her Office, in an attempt to get even for Dr. Blanchette helping put Justin’s father away for another 20 years.”

The sins of the father are not the sins of the son. Unless I am very much mistaken (and I seldom find myself so mistaken about people’s motivation) Keiter is motivated to zealotry by the desire to distance himself from his father’s crimes. The allegation that he “has been Covering up Crimes of his Father for Years” strikes me as unlikely in the extreme. Blanchette’s erratic capitalization — one hallmark of a nutjob — does nothing to make her accusations more credible.

So: False? Probably.

Defamatory? Possibly. Keiter, being a public figure,1 must show that Blanchette wrote with actual malice — not that she wanted to hurt him, but that she knew that her accusations were false or acted in reckless disregard of their falsity. This may be untrue — Blanchette may well believe that Keiter did the things she has accused him of.

Damages? The accusations are incredible enough that I doubt that Keiter can prove much in the way of actual damages. He still has his job, and I doubt that anyone in the DA’s Office believes the accusations any more than I do. Actual damages? Nominal.

Exemplary damages? I happened upon this petition because I read every defamation petition filed with the Harris County District Clerk, and have done so for over a year. Keiter’s lawyers have done something that I don’t believe I’ve ever seen done in a lawsuit in this county: they pled in the petition that they sent a cease-and-desist letter as required by Section 73.055 of the Texas Civil Practice and Remedies Code before a plaintiff can maintain a defamation suit. (They pled that it was under “§73.005,” but that typo is probably harmless.) Most lawyers suing people for defamation don’t make the required request for retraction, which is fatal to a request for exemplary damages and may be fatal to the suit itself. By jumping through the procedural hoops Keiter’s lawyers have at least maintained the possibility of exemplary damages.

The next step for Blanchette, once she gets served with the petition and hires a lawyer, will be to file an answer, and then an anti-SLAPP motion under Chapter 27 of the Civil Practice and Remedies Code. She will have to show that her statements were “made in connection with a matter of public concern” — easy enough — and Keiter will then have to “establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question” — including actual malice. If he doesn’t, his case gets dismissed and he gets to pay Blanchette’s legal fees. If he does, the case goes forward.

That Blanchette knew her allegations to be false (or was reckless about whether they were) is a tough make-or-break proposition, but fortunately for Keiter the court can allow “specified and limited discovery relevant to the motion,” including Blanchette’s deposition.

Won’t that be fun!

Keiter v Blanchette Petition


  1. The accusations relate to his conduct as a public official. 

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2016.014: Gawker, Thiel, and the Future of Free Speech

What I write is what I mean. I will not gertrude. If you read into my words support or opposition for something other than I explicitly support or oppose, you are a fool.

The revelation that Hulk Hogan’s lawsuit against Gawker was bankrolled by Silicon Valley billionaire Peter Thiel, who had a hardon for the media company because it outed him as gay, has prompted some interesting discussions.

If you love free speech, a billionaire’s successful bankrolling of a company-killing lawsuit over the nonconsensual publication1 of a sex tape is not cause for celebration. While one, especially one on the right, might reasonably find joy in the destruction of a leftwing media company publishing pornography without its subjects’ consent, broader principles dictate wariness of covert financing of lawsuits punishing speech.

This is not about the social consequences of speech, but rather about the legal consequences. Thiel did not organize a boycott or fund Gawker’s competitor. He used the coercive power of the state to destroy his enemy. The First Amendment applies not only to state action in the form of prosecutions and regulation, but also to state action in the form of civil lawsuits.

If you love free speech, state action punishing the nonconsensual publication of pornography should concern you.

But it’s just a civil suit.

The Supreme Court has not distinguished between the free speech applicable in a civil suit and the free speech applicable in a criminal prosecution (except to mention in dicta that the free-speech rules might be laxer in the latter where procedural safeguards are stricter). The procedural stature of civil cases reaching the Supreme Court is very different than the procedural stature of criminal cases: the former have made it past a jury, and the latter are (or should be) as-written challenges independent of the facts. But if it’s constitutionally okay for a jury to punish a defendant for saying something, there is nothing to stop the government from making it illegal to say the same thing.

But Gawker is the press.

The free-speech rules are not different for the press than for ordinary folks. The press thinks so—it has historically expressed little interest in the plebes’ freedom of speech, as long as the government isn’t going after the organized media. And the ordinary folks think so—they generally believe that the media has special privileges and special responsibilities—but in fact the Washington Post has no more right to say a thing than you or I have. If it’s constitutionally okay for a jury to punish a media defendant for saying something, there is nothing to stop the government from making it illegal for you to say the same thing.

But I would not say such things.

The Supreme Court has recognized certain categories of historically unprotected speech and allowed liability (civil and criminal, against the media and individuals) whose speech falls into those categories. No yet-recognized category of historically unprotected speech includes Gawker’s speech in this case — the nonconsensual publication of a sex tape. All speech within an unprotected category is unprotected. The First Amendment is not a scalpel, and the Supreme Court has not shown a willingness to micromanage freedom of speech. The narrowest category of unprotected speech yet recognized is “child pornography,” and that is arguably a subset of “speech incident to criminal activity” because the distribution and possession of child pornography are so entwined with child sex abuse.

So while you would not say such things, there is no guarantee (and it is quite unlikely) that a newly recognized category of unprotected speech would include only things that you think should not be said. Unless you make the category very narrow (something that the Supreme Court has not shown a willingness to do) I can describe a case in which, at least arguably, the speech should be protected. That’s the thing about the unprotected categories being categories — no defamation should be protected, no child pornography should be protected, no solicitation of a crime should be protected.

For example, suppose that you propose the obvious category: “images of a person engaged in sexual conduct, published without that person’s consent.” I would describe a case involving a high-ranking government official and her Russian spy boyfriend. But wait, you say, while the fact of that video’s existence is important, showing it is not. Somebody, I would reply, has to see it, and for someone to see it someone must publish it. So even if it isn’t widely published, someone has engaged in unprotected speech (incurring possible liability) by sending it to CNN.

Yeah, but that’d be newsworthy, and the Hulk Hogan tape was not.

“Newsworthiness” is not a criterion endorsed by the Supreme Court. It applies only in privacy tort cases, and the Supreme Court has never signed off on liability for speech violating privacy. Further, “newsworthiness” is in the eye of the beholder. Hulk Hogan found a jury in Pinellas County, Florida that thought the video of his having sex with his best friend’s wife was not newsworthy; a jury elsewhere might have disagreed.  A jury in Norfolk, Virginia in 1971 might have found the Pentagon Papers not to be newsworthy. The power to decide whether speech is newsworthy is the power to censor.

There are people on the left who want government censorship. They want to criminalize revenge porn, and satire, and criticism. They are playing a long game, whose end includes a state veto over all speech, and despite their being blue and Gawker being blue they cheer Gawker’s destruction because it is a step toward Blue Team’s victory in the long game.

Most of those who cheer Peter Thiel for shutting down Gawker, on the other hand, are playing a short game, thinking no further ahead than Gawker’s destruction, which feels good to them because they are red and Gawker is blue and they feel that Red Team is winning and that feeling is all that matters.

The short game here is for dolts and losers with no imagination. Red Team doesn’t need to decry Thiel’s destruction of Gawker — it feels too good to them for that — but Red Team ought to think twice before joining the authoritarian left Blue Team in cheering it.


  1. There seems to be some debate whether one or more of the participants knew that the tape was being made. 

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2016.013: An Apology

It’s no secret that the groom and I will never be friends. Since he was a baby prosecutor I’ve had grave ethical concerns about him. I’ve named him a couple of times in this blog.

But the groom being fair game doesn’t make the bride fair game.

Someone sent me a link to a story about the groom’s wedding proposal, in which he had faked his own arrest. I shared it in a three-word tweet:

Fascists in Love TweetAt no time did it occur to me that in this, the work of about five seconds, I was painting the bride with the “fascist” label as well as the groom. Of course that’s what the plural does. But the underlying story does not demonstrate the bride’s own authoritarianism: Love is a funny thing, and libertarians fall in love with authoritarians all the time.

Recently I heard that the bride had seen the tweet and been hurt by it.

To the bride: I apologize unreservedly. I had no intention of hurting you. I have deleted the tweet, and will be more mindful in the future of the damage my words can cause to innocent bystanders.

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2016.012: Voir Dire Seminar in Dallas

Along with Heather Barbieri of Plano and Kerri Anderson Donica of Corsicana, I’m course-directing the Texas Criminal Defense Lawyers Associations’ voir dire seminar in Dallas September 8–9, 2016. Here’s a draft description of the seminar for TCDLA’s marketing:

This two-day intensive seminar — a combination of lectures, discussions, and demonstrations of voir dire strategies and tools — is a must for the criminal-defense lawyer who tries cases.

Jury trials are won and lost in voir dire. Voir dire is not just your only chance to eliminate unfavorable jurors legally, but also your best chance to persuade the jury that your story of the case is the truth.

In Voir Dire Outside the (Jury) Box you will learn theories of voir dire. You will learn inventive and useful techniques for connecting with jurors. You will learn to apply those theories and techniques in specific types of cases. You will be entertained. Your mind will be blown, and you will leave on Friday with something new that will help you win a jury trial on Monday.

Voir Dire Outside the (Jury) Box is a unique opportunity to learn jury selection from the leaders of the Texas criminal-defense bar; it will benefit the newcomer and the veteran alike. The seminar includes a discount on tickets to the Dallas Comedy House’s Thursday evening improv show. And, as always, scholarships are available.

As well as the usual popular topics — error preservation, defenses, jury suppression voir dire, DWI voir dire, child sex assault voir dire, and so forth — we plan to introduce some new ways of looking at the whole voir dire process. The promise of blown minds is mine, and I am not one to overpromise.

Join us in Dallas. Calendar it now.

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2016.011: Followup on Three Good Deeds

Apropos of this post, I learned some interesting things at the courthouse.

Rumor is that the judge put Sam up to commenting on my blog — believable, since Sam isn’t the type to comment on blogs. Unfortunately the judge doesn’t seem to have told Sam the truth about her private sanction so he’s left denying something that I can prove to be true.

I also learned that the judge retaliated against one of her court staff for telling the truth to the Commission for Judicial Conduct about the incident for which she was sanctioned — which incident, I was reminded, was the judge’s retaliation for my client not kowtowing to her rudeness in the first place.

So: Judge is rude to lawyer. Lawyer stands up for herself. Judge retaliates against lawyer. Mark stands up for lawyer. Judge retaliates against Mark. Court staff stands up for truth. Judge retaliates against court staff. Classy!

Maybe the judge has a friend who can talk to her about the First Rule of Holes.

Sam?

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