2015.92: Matthew Chappell Responds

I sent Matthew Chappell a link to my last post.

He quickly responded:

And now you’ve committed a handful of torts, including libel by taking my words out of context and tortious interference with business.

Enjoy the lawsuit I’m in the process of filing against you, psycho, arrogant, inferiority complex-ridden moron.

Matthew Chappell

Attorney At Law

723 Main Street

Suite 700-07

Houston, Texas 77002



Website: mcattorney.net

What Chappell doesn’t realize (because obviously he’s not a guy who does his homework before inviting experienced lawyers to join him in what appears to be fraud against a major investment company) is that I am not some civilian who quails at the thought of being dragged into court. I have been sued before, and I will be sued again. Every time someone tries to attack me for my writing, I make free speech stronger by refusing to cave in. So I actually will enjoy the lawsuit he is in the process of filing against me.

I hope Chappell doesn’t have a good friend with enough wisdom to tell him to stop digging. Maybe this’ll be my chance to buy Marc Randazza the best steak in Houston.

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2015.91: Will Anyone Help Matthew Chappell Out? [Updated]

Sometimes when I’ve written about ethical issues and use specific examples, people whine at me that I should be nicer; that instead of publicizing other lawyers’ misdeeds I should contact them and counsel them.

The theoretical problem with being nicer is that I might make more of a difference by writing here than by counseling. If I send an email to a lawyer who has strayed, I might put him back on the ethical path, but nobody else benefits from the lesson. If I write here, though, everyone might have the benefit of the lesson. No professional courtesy is owed between lawyers where misconduct is concerned. In fact, lawyers have a special public duty to police themselves, which means that preventing misconduct trumps being nice.

The practical problem with being nicer is that it isn’t appreciated. Like Charlie Brown, I keep making those calls, and time after time I am rebuffed. “Nice” is really only appreciated in contrast with something else, so the people who I call don’t realize that by taking the time to call them and offer them the benefit of my experience and education I’m being nice.

But still I keep trying. I tried this morning with Matthew Chappell. He didn’t think I was being nice. He thought I was being arrogant.1 He told me to piss off.

So I suppose this is me pissing off.

This morning I got this email from Chappell:

I’m going down the list of Board Certified Texas Attorneys to find a solo attorney with 5 or more years of experience to make this offer to. I have 2 years experience, graduating from STCL in 2013.

I have family friends at Fidelity Investments who promise me AT LEAST one new client a week (Estate Planning) if I were able to get on their Preferred Attorney’s List; however, I have to wait a three more stupid years, as Fidelity now requires 5 years of experience to be placed on this list (which wasn’t always the case).

I need to find someone with 5 years who my friends can nominate; the business would be filtered through that someone, but wouldn’t be intrusive AT ALL(I will set up a separate email acct or Google phone number for these clients).

There is absolutely ZERO liability or accountability or responsibility on your part. In exchange, I’m willing to either offer you a share of the clientele or to subsidize your malpractice insurance to bring it up to 2 million/per incident (usually around $3600/yr), which, in addition to the 5 years, is another Fidelity req to be on the list. I already have this type of policy myself.

Let me know if you’d be interested, and I’ll put you in touch with my Fidelity contact who can explain further. Like I said, I’m going down the Board Specialization list of names one by one and sending pretty much the same email. First come, first served.

Thanks, and all best,
Matthew Chappell
Attorney At Law
723 Main Street
Suite 700-07
Houston, Texas 77002

Check out Chappell’s website, McAttorney.net2: it’s amusing, tacky, and probably deceptive, but that’s for another day. Today I am going to discuss Chappell’s proposal.

Fidelity, an investment company has a “preferred attorneys” list. Lawyers must have at least five years’ (including at least three “stupid years”) experience to get on the list. Fidelity did not always have this five-year requirement; this suggest that the requirement is material to them. We don’t know why Fidelity doesn’t want second-year lawyers like Matthew Chappell handling cases for its clients, but if I had to guess, I would say that Fidelity didn’t want kid lawyers practicing on its clients. In any case, it’s not for us to decide whether Fidelity’s rules are right or wrong. They are Fidelity’s rules. Referrals are important, and the referrer gets to decide who he wants to refer clients to. Nobody is entitled to Fidelity’s referrals in violation of its rules, even if they have a cooler on the inside.

So, lawyers. Let’s imagine what happens if you sign on as Matthew Chappell’s nominee, the strawman to whom Fidelity will refer cases, which will then be funneled to Chappell with no involvement from you.

It looks a lot like you’re participating in a fraud against Fidelity. Maybe Chappell’s “Fidelity contact” can explain this in some way that makes it non-fraudulent. Maybe it is fraudulent and Fidelity never finds out. Maybe Fidelity doesn’t care. But suppose that “your” clients start complaining to Fidelity about “your” service. How long do you think it’s going to take them to figure out what your arrangement with Chappell was?

When Fidelity realizes what’s going on, do you think they are going to be kindly inclined toward you for helping him defeat their rules, or do you think they’re going to go running to the State Bar and your local DA? You’ve helped Chappell deprive Fidelity of something of value to both it and him (its referrals) on false pretenses. Do you get indicted? Do you get disbarred? Maybe not.

That’s a pretty damn expensive “maybe.” What do you get in return?

I’m willing to either offer you a share of the clientele or to subsidize your malpractice insurance to bring it up to 2 million/per incident (usually around $3600/yr), which, in addition to the 5 years, is another Fidelity req to be on the list.

“A share of the clientele” is vague, but sounds negotiable. If you were a board-certified estate planning lawyer and the share of the clientele were 100%, the deal might be both safe (because you would actually be doing the work that Fidelity was referring to you) and worthwhile. The potential liability for letting a lawyer with less than two years’ experience,3 take a single case in your name without your direct supervision is spectacular. He’s paying you to use your name to evade Fidelity’s rules? I’ve seen federal fraud indictments alleging more-benign activity.

The offered alternative of upping your malpractice insurance is worthless: if you don’t have a two-million-dollar policy now, it’s because you don’t need one now. You will certainly need one if a lawyer with a year and a half of experience (who claims two) starts taking cases in your name without supervision.

But if you take that option, it had better be an “occurrence” policy, which has the insurance company on the hook if the malpractice occurs while the policy is in force, no matter when the claim is made,4 because otherwise when Chappell gets tired of paying for the policy you are facing liability for whatever he might have screwed up before that. Also, you’d better explain to the insurance company why Chappell is covered under your policy.

What else? Now Chappell has a phone number and email address associated with your name. Fidelity only refers you estate-planning clients, but those clients refer other business to Chappell, whom they think works for you. Guess who gets grieved when Chappell decides to take a criminal case (because it looks easy) and screws it up. Guess who gets sued when Chappell takes that billion-dollar PI case (because he knows everything) and blows the statute of limitations.

Here’s a protip: when someone says “There is absolutely ZERO liability or accountability or responsibility on your part” there’s a reason he’s being that emphatic, and the reason is not that the statement is clearly true. Here, it happens to be false. If you allow Chappell to use your name you are potentially liable, accountable, and responsible (all of which mean the same thing) in civil court, in criminal court, and before the State Bar for whatever Chappell does in your name. As a lawyer, your name—the public face of your reputation—is your most valuable asset. It should be treasured, and not rented out to a young pup who wants a quick buck.

I am going to attribute Chappell’s “absolutely ZERO liability” statement to stupidity, but only because he gets the benefit of Hanlon’s Razor.

Intentionally or not, Chappell’s email reads like a Nigerian fraud scheme. Nigerian fraud schemes read like Nigerian fraud schemes because Nigerian fraudsters need an easy way to distinguish the potential victims (those naive enough to fall for the scam) from non-victims.

If you think it’s a good idea, I have $15 million in gold that I need to repatriate, beloved.

[Update: Mr. Chappell claims that I took his email out of context. What I published is his solicitation email; since he wants me to contextualize it, here’s the email chain between him and me after his solicitation email but before my blog post. I don’t see how it changes the story, but here you go:

MB to Chappell 11/12/15 0842

Not no, but hell no.

 Is there any chance I can, old dog to young pup, persuade you to stop now and not pursue this fraudulent course of action?

 Please let me know before noon.



Chappell to MB 11/12/15 0930

No fraud. The client will KNOW that I only have 2 yrs experience. And I’m 42, so hardly a young pup;) Perhaps my email wasn’t clear.

Matthew Chappell

Attorney At Law

723 Main Street

Suite 700-07

Houston, Texas 77002



Website: mcattorney.net

MB to Chappell 11/12/15 0937

I think your email was perfectly clear. And legally, you’re still on the teat. :-)

You need to step back and look at this objectively. What you are doing is looking for a straw “preferred attorney” to trick Fidelity into referring you clients.

What did you do before law school? Maybe that’ll help me explain.

This is dangerous for you, and dangerous for the lawyer who helps you with it. In the event that you find someone foolish enough to join your scheme, in the best-case scenario you get away with it and nothing goes wrong. In the worst-case scenario, though, you and he get disbarred.

Don’t bet your meal ticket on Fidelity being cool with the arrangement.

Chappell to MB 11/12/15 0949:

Still don’t understand. If the client KNOWS it is me, not the “preferred attorney” doing the work, where’s the fraud? The atty is merely referring the client to me, and with no endorsements or false claims whatsoever. The client will KNOW everything; thus no fraud. I was a teacher before and a small biz owner before that.

I truly appreciate your concern, but I still see no fraud if no one’s being defrauded. ??

Chappell to MB 11/12/15 0951:

Thank you for your input. I will contact the Bar and find out first-hand which “teat” I’m on.

MB to Chappell 11/12/15 1106:

The teat reference was to your contention that you aren’t a young pup.

I can explain it to you, but I can’t understand it for you. Lay out the scheme for the State Bar just as you’ve laid it out for me, and nobody halfway competent will sign off on it.

Chappell to MB 11/12/15 1111:

Thanks for your arrogance. Best wishes.

MB to Chappell 11/12/15 1126:

Ha. Teachers have been calling me “arrogant” since I was 13. Like the rest, you commit the classic blunder of mistaking confidence in competence for arrogance.

I’ve been doing this stuff for 20 years. I’ve been grieved unsuccessfully, I’ve successfully defended grievances, and I’ve taught ethics.

I took my valuable time to reach out to you and try to share the benefit of that with you, but your greed has blinded you to what should be obvious.

I guess you should have done some homework before emailing me, because I’ve also written extensively on ethics at my blog, DefendingPeople.com, where you are about to be Exhibit A.

There is nothing I want or need from you. You needn’t respond.

Best of luck,


Chappell to MB 11/12/15 1130:

Nope. Just arrogant. Now piss off. 

After I sent him a copy of this post, Chappell responded; I have already written about that.

I’ll keep you posted, beloved.

  1. Chappell was a teacher before he was a lawyer, and—as I may have mentioned before—teachers and others have been calling me “arrogant” since my brief stint in eighth grade. It never has bothered me. Arrogance is an exaggerated sense of one’s abilities, and I am fairly sure that my sense of my abilities is accurate-to-understated: I know some things, I understand some things, I’ve got a pretty good brain, but mostly I’m just lucky. Of course, if my sense of my abilities were exaggerated, I probably wouldn’t know it, but it is congruent with the social proof. 

  2. At least that’s the way I read it. 

  3. According to the SBOT,  “I have 2 years experience” is a lie. 

  4. I’ll bet that a two-million-dollar “occurrence” policy for a second-year lawyer doing estate planning, if you can find one, is more than $3,600 per year. 

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2015.90: Poor Unfortunate Souls

The other day I met a University of Texas Law School first-year student. He told me about a legal research project that included a budget—the students were to keep track of their time, value it at 250 (imaginary) dollars an hour, and stick to an imaginary $4,000 budget.

When he thinks of quitting, he says, he thinks about that $250 per hour.

I’m not entirely sure UT Law is doing a good job of explaining the economics of the practice of law to its 1Ls. The expectation that a young lawyer will get $250 an hour is false.

The median income for lawyers licensed two years or less in private practice in Texas is about $69,000. Call it $34.50 per hour, assuming an unrealistically light 2,000-hour year. In-house counsel makes more money at every age. New lawyers in-house make a median $78k a year, and the 2,000-hour year is a little more credible for them. The top earners are lawyers with 61 to 65 years of experience working as in-house counsel; they make a median $278k a year, though I hope they aren’t working 2,000-hour years in their 80s.

Nationwide, the median starting salary for 2014 law grads was $63,000, but 13.3% of 2014 law grads were not employed ten months after graduation.1

So what is this $250-an-hour number? It’s a squint-and-tilt-your-head-just-right figure. The high salary for first-year associates, paid by some big (more than 700 lawyers) firms, is $160k; Call that $80 an hour.2

When a client pays a big firm for an associate’s time, not all of the money goes to the associate. About a third goes to the partners, about a third goes to overhead, and about a third goes to the associate.3 So those few firms that are paying their associates $160k might be billing their clients $250 an hour for those associates’ time.

Paying that rack rate is a sucker’s bet for the client.4 It’s a great deal for the firm, which gets its clients to pay it to train the associate. And it’s sweetheart deal for the first-year associate, who has no skills that couldn’t be offshored for a small fraction of that billing rate. She’s not getting $250 an hour, but $160k a year is a lot more than she’s worth to the client.

In any case, few first-year lawyers get jobs that pay even $160k a year.

So why does UT Law present this problem in terms of a $4,000 budget and $250 per hour, rather than, say, a $400 budget and $25 per hour, which would be more realistic for most law students, or a neutral forty-blue-chip budget, and five red chips per hour?

Could it be that the school wants its students, when they feel like quitting and depriving the law school of all that sweet, sweet student-loan money, to think about that $250 an hour?

Could UT Law be … tricking its students?

  1. This report makes the assertion, unsupported and contradicted by the same organizations’ numbers—and frankly risible—that “Salaries of $160,000 accounted for 31% of reported law firm salaries, the same as in 2013″ so take this with a grain of salt. Things are probably much grimmer than NALP wants you to believe.” 

  2. We’ll call it that, but know that it’s a lie. Those associates aren’t working 2,000-hour years. 

  3. This guy says 20%. 

  4. Except for social proof, which might give the client the feeling that it’s getting more, since it’s paying more. 

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2015.89: “Oops,” he explained.

(I’m pretty sure my title is a JDogism.)

In my recent Texas First Amendment Update I omitted one of the statutes I’m challenging: Texas Penal Code Section 21.12(a)(3), the Improper Relationship Between Educator and Student statute.

You’ll realize by now that the titles of Texas penal statutes often inaccurately describe the forbidden conduct. For example, the Online Solicitation of a Minor statute forbade non-soliciting communications to adults; the Fraudulent Use of Identifying Information statute and the Online Impersonation statute both forbid the nonconsensual “use” of someone’s name with intent to harm (so basically criticism). The Improper Relationship statute forbids employees of a public school, from the principal to the janitor, doing certain things with students in the same school district, regardless of the students’ age.1

Among those things that are forbidden: “engag[ing] in conduct described by Section 33.021.”

But the Court of Criminal Appeals in Ex Parte Lo held unconstitutional Section 33.021(b). So in a case in Odessa, Texas I used a pretrial application for writ of habeas corpus to attack Section 21.12(a)(3). The trial court denied relief2 and we appealed to the 11th Court of Appeals in Eastland, Texas.

Why I failed to mention this in my recent update, I couldn’t say.

Last week the Eastland court, not known for being a warm and fuzzy place for criminal defendants, agreed with me that Section 21.12(a)(3), in combination with Section 33.021(b), is unconstitutional. They didn’t go along with me on Section 21.12(a)(3) in combination with Section 33.021(c), which I haven’t yet killed, but the State will probably file a petition for discretionary review with the Court of Criminal Appeals, the Court of Criminal Appeals will probably grant it (since the court of appeals held a statute unconstitutional), and we will probably file our own petition.

So. Statutes I’ve killed or seriously wounded:

  • Tex. Penal Code Section 33.021(b)
  • Tex. Govt. Code Section 402.010
  • Tex. Penal Code Section 21.12(a)(3) (struck by the Eleventh Court of Appeals, so not binding precedent statewide).
  • Tex. Penal Code Section 21.15(b)(2) (struck by the trial court, so no precedential value, but the State is appealing).
  • Tex. Penal Code Section 33.021(c) (struck by the trial court, so no precedential value, but the State is appealing).
  • Tex. Penal Code Section 32.51 (struck  by the trial court, so no precedential value, and the State did not appeal).

Remember the old days, when a Texas court holding a statute unconstitutional was big news? Way back in 2014?

  1. This is a gloss on the statute, which you can read here

  2. I’ve had three trial judges in 20 years grant relief on constitutional challenges. 

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2015.88: Cocks AND Glocks

It is clearly free speech.

Waving a dildo around to convey a message is symbolic speech, which is speech. Waving a dildo around to protest guns on campus is not obscenity, and it falls into no other historically recognized category of unprotected speech.

This, to First Amendment lawyers, goes without saying.

And what are the chances that the University of Texas would arrest, ticket, or discipline a student for carrying a dildo around as part of a protest “to draw attention to the fact that carrying a dildo to class could be ‘prohibited expression’ under university rules“? Nil, especially given that the university will have almost ten months to consult with counsel and choose the right course. I have heard (take it with a grain of salt) that the university has told students they will not be cited for carrying dildos in protest.

John Banzhaf writes:

To express their hostility towards the new law, a few female students are organizing a demonstration in which protesters will dramatize their opposition by carrying large dildos. They raise the question: Would UT really expel a student for displaying a dildo while nevertheless permitting guns capable of discharging more than a dozen high-powered rounds?

No, of course not. The protesters raise a stupid question. Show me that UT has expelled a student, or threatened to expel a student, for displaying a dildo and I might be convinced that it isn’t a stupid question.

Banzhaf writes:

A Texas statute, and the UT regulation apparently based upon it, prohibits the display of “obscene devices.”

Not so. The UT regulation prohibits obscene writings, visual images, and performances. It does not specifically prohibit “obscene devices.” A dildo is an “obscene device,” but an “obscene device” is not necessarily “obscene.” It’s amazing, as Troy McKinney says, what you learn when you read the statute, which the UT regulation cites.

But hey, if your objective is—as Banzhaf’s objective, near as I can tell, is—to be outraged and to try to get other ignorant people to share your outrage, why would you bother yourself with things like “reading statutes”?

The protesters fear arrests or university discipline.

No they don’t. The protesters crave arrests or university discipline. The worst thing that could happen to them is that the administration would cheerfully join them in their day of dildo waving. If they don’t pretend to fear arrests or university discipline, their stupid question appears stupid, even in the context.

And indeed, a legal website reported that UT-Austin’s vice chancellor says he faces a “dilemma,” and wouldn’t speculate on how he will handle the protest. “We do try to tolerate a good deal of free speech on campus,” he said.

“A legal website,” eh? No link? What is Banzhaf trying to hide?

Here‘s my best guess for the “legal website,” and if I guess right you can see what he’s trying to hide: it wasn’t UT Vice Chancellor Daniel Sharphorn who said he faced a “dilemma”; it was Sue Reisinger, the author of the article. Sharphorn did say that he can’t speculate on how he will handle the protest (a hail of bullets, or snack food for protesters?), and “We do try to tolerate a good deal of free speech on campus,” which is a tin-eared statement of which I don’t think we can make a whole lot, especially since it was made within a couple of days of the protest being announced.

Moreover, free speech is something to be revered, not just “tolerated,” especially at a university.

Sing it, brother!

Texans should be very concerned that professors at the UT Law School seem to be standing idly by.

Um, no.

UT’s law professors, if they have even thought about it, know that the protesters raise a stupid question. They know that obscene devices are not necessarily obscene, and that since October 16 when Sharphorn said that the university tries to accommodate a good deal of free speech (instead of accommodating all free speech) he has had an opportunity to give it some thought, and to decide: plomo o pizza.

If those who teach Constitutional law don’t see a clear threat to free speech and academic freedom and speak out about it, it’s no wonder that the chancellor is so confused, and that free speech is just “tolerated” at UT-Austin.

Except that there is no clear threat to free speech and academic freedom because nobody is in any danger, however much they desire it, of dildo-based arrest or discipline.

Displaying dildos shouldn’t create a “dilemma” for anyone familiar with First Amendment law.

Nor does it. “Dilemma” appears to be Ms. Reisinger’s word.

The Supreme Court has held that protesters have a constitutional right to make their point by displaying many upsetting things, including swastikas, burning American flags, and even flaming crosses of the type used by the KKK. Other courts have upheld the right of women to bare their breasts as part of a protest.


More importantly, a federal appeals court has struck down the Texas law upon which the vice chancellor seems to rely, making it once again legal to display dildos, even if not part of a First Amendment protected protest, unless they are “obscene”: i.e., appeal to a “shameful or morbid” interest in sex and are “patently offensive.” This is something that UT should have known.


First, the vice chancellor doesn’t appear to have said anything about relying on any statute, or even about disciplining students. This is a strawman argument.

Second, the university regulation governing obscene communications explicitly incorporates the Constitutional definition of obscenity rather than the statutory definition of “obscene device.” So UT knew what UT “should have known.” If Banzhaf had behaved like an actual lawyer rather than a cheerleader for a failing cause he would have read the rule and seen this. If the university were inclined—there is no indication that it is—to discipline rubber-cock-wielding students, they could only do so if the wielding of the cock was obscene.

Some protesters may also carry Nerf guns, pointing out another “dilemma” UT faces: The university’s Residence Hall Handbook prohibits Nerf guns. So the learned vice chancellor may be in the odd position of having to expel a student for having a Nerf gun, which shoots harmless pieces of foam, while defending the rights of other students to carry Glocks, Colts, Rugers, etc., capable of a mass murder.

That would be odd an odd position, but it wouldn’t a free-speech issue. The university’s regulations do not say anything about Nerf guns (except that “Campus violence” includes “Displaying a weapon or an object which appears to be a weapon in a threatening manner”). So students are free to carry Nerf guns on campus. The Residence Hall Manual forbids “Weapons or facsimiles of weapons” in residence halls; a Nerf gun is not a facsimile of a weapon (an Airsoft gun, however…). If this oddity really existed, there would be two ways to fix it: allow Nerf guns on campus, or get the legislature to change its mind about allowing concealed-handgun license holders to carry on campus. Guess which is feasible.

Banzhaf is trying to manufacture outrage. His success depends on ignorant people believing:

  • That the display of dildos is against university rules;
  • That the university administration, with ten months of time to brief and reflect, will be clueless about free speech; and
  • That the protesters are therefore in danger of arrest or discipline.

In aid of this trickery Banzhaf repeatedly misattributes “dilemma” to an official of the school rather than the reporter who used it. He fails to read (or deliberately ignores) the university rule that would apply, as well as the statute that defines “obscene.” If Banzhaf told the truth—”University regulations forbid obscenity, but dildos are not necessarily obscene; the University has given no indication that it will punish students for demonstrating; demonstrators want to believe that they face danger because otherwise they’re just a bunch of silly people waving rubber dicks.

Only if the protesters are in real danger of (rather than just having a devout wish for) arrest or discipline do UT’s law profs—or serious people generally—need to speak about it. It goes without saying. Banzhaf’s First Amendment outragemongering is discreditable, unworthy of a lawyer or even a halfway-competent law professor.

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2015.87: Texas’s Disorderly Conduct Statute Unconstitutional

My client was charged by information with

intentionally and knowingly display[ing] a deadly weapon, namely, A FIREARM, in a public place and in a manner calculated to alarm

This is an accusation of disorderly conduct under Section 42.01(a)(8) of the Texas Penal Code:

Sec. 42.01. DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:

. . . . .

(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;

Content-based restrictions on speech are presumptively invalid under the First Amendment. Is Section 42.01(a)(8) a content-based restriction on speech?

Speech includes expressive conduct.

A statute is a content-based restriction on speech if it regulates speech based on its message, its subject matter, or its intent.

Section 42.01(a)(8) forbids not only the exhibition of firearms to threaten or for no communicative purpose, but also the symbolic speech of exhibiting firearms to make points, including political points, such as the open-carry demonstrations characterized by the media as “alarming.”

A communication “calculated” to have an effect has been described by the Texas Supreme Court (in an opinion not binding in criminal cases) as one that an ordinary reasonable speaker would foresee is likely to cause that effect. Not all speech that is calculated to alarm is intended to alarm, but all speech that is intended to alarm is calculated to alarm.

If the Texas Supreme Court’s definition of “calculated” applies, then sometimes displaying a firearm in a manner calculated to alarm will not be symbolic conduct (because it is not intended to alarm, even though an ordinary reasonable speaker would foresee that it is likely to cause that effect), and is unprotected. But only sometimes.

Because Section 42.01(a)(8) forbids some speech that is intended to alarm based on that intent, it is a content-based restriction on speech and is presumptively invalid. The State has the burden of overcoming this presumption.

The State might meet its burden by showing that the speech restricted by Section 42.01(a)(8) falls entirely into a category of unprotected speech; or it might meet its burden by showing that the statute meets strict scrutiny—that it is necessary and narrowly written to satisfy a compelling governmental interest.

Remember that speech may not be forbidden just because it causes emotional harm. We are allowed to offend each other, to embarrass each other, and even to alarm each other. So speech “calculated to alarm” does not fall entirely into any category of unprotected speech.

What we are not allowed to do is to threaten each other. The nearest applicable category of unprotected speech is “true threats.”

Sometimes displaying a firearm in a manner calculated to alarm will be a “true threat.” But only sometimes. For example: open?carry protesters display firearms in a manner calculated to alarm Moms Demand Action, but they do not intend to threaten injury. Displaying a firearm with the intent to put a person in imminent fear of bodily injury is aggravated assault under Section 22.02 of the Texas Penal Code as well as disorderly conduct under Section 42.01(a)(8). If open-carry protesters intended to threaten imminent injury, they would be committing assault.

The statute is a content-based restriction on speech, so it is presumptively unconstitutional. The speech that is restricted does not fall entirely into a category of unprotected speech. The remaining question is whether the statute satisfies strict scrutiny—whether it is necessary and narrowly drawn to satisfy a compelling state purpose.

The legitimate state interest in Section 42.01(a)(8) is an interest in keeping people from being threatened. This interest is satisfied by other sections of the Texas Penal Code. Forbidding people from “alarming” each other with firearms. The fact that all of the speech that Section 42.01(a)(8) restricts is either forbidden by Section 22.02 (true threats) or constitutionally protected (everything else) militates against the statute being either necessary or narrowly written.

So since the statute is a content-based restriction on unprotected speech, and it is not narrowly written to satisfy a compelling governmental interest, Section 42.01(a)(8) is unconstitutional.

At least, that’s what I’d argue if the State hadn’t dismissed my client’s case.

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2015.86: Texas First Amendment Update

In Ex Parte Fournier, the Court of Criminal Appeals rejected an actual-innocence claim from a guy who had gone to prison for violating Section 33.021(b). I hadn’t had a lot of hope for the actual-innocence claim—I figured the state would find a way to wire around the damage done to it by Ex Parte Lo so that it wouldn’t have to pay millions in civil claims. Judge Yeary dissented, joined by Judge Keller; they would hesitate to give Ex Parte Lo retroactive effect on the theory that there may have been some constitutional applications of the unconstitutional statute—some of the speech punished under Section 33.021(b) was not constitutionally protected.

And indeed some of the speech punished under Section 33.021(b) was not constitutionally protected; that speech was forbidden under other statutes as well. The state chose to prosecute that speech under the easy-to-prove-and-unconstitutional Section 33.021(b) rather than under a more-difficult-to-prove-but-constitutional statute. The State, rather than the accused, should bear the consequences of this decision.

I expect that Yeary’s argument will resurface when we kill other void penal statutes. Until it is definitively rejected by the court, it highlights the importance of lawyers making First Amendment challenges pretrial, getting trial-court rulings in every case.

Speaking of other void penal statutes, here are some of the challenges we have going:

  • Texas Penal Code Section 33.021—the balance of the online-solicitation statute (pre-9/15), which forbids fantasy solicitation and solicitation of people whom the defendant knows not to be children. I had high hopes for the First Court of Appeals in Wheeler; those hopes were dashed when the court essentially reissued its Maloney opinion with Lo dicta added in. I’ve filed a petition for discretionary review with the Court of Criminal Appeals. If the court refuses discretionary review, I have several other 33.021 cases in the appellate pipeline, in the 3rd, 7th, 9th, 10th, and 11th Courts of Appeals. Neither Maloney nor Wheeler is binding precedent in those courts, so they may be more receptive than the First was to applying the correct presumption, of unconstitutionality, to this content-based restriction on speech.
  • Texas Penal Code Section 33.07—the online-impersonation statute, which forbids using someone’s name online without consent but with intent to harm them. The 208th District Court court in Ex Parte Stubbs agreed with us that the statute is unconstitutional, the State’s appeal is pending in the 14th Court of Appeals. Toby Shook and I have a case pending in Dallas County as well. The State had dismissed two other Online Impersonation prosecutions in the face of constitutional challenges; they committed to defending the statute on appeal in Stubbs before Judge McSpadden granted relief.
  • Texas Penal Code Section 32.51—the fraudulent-use-of-identifying-information statute, which forbids using someone’s name (or anything else about them) without consent but with intent to harm them. This is going to be a big one. I have cases pending in trial courts in Galveston, Harris, Fort Bend, Lubbock, Denton, McLennan, Montgomery, and Wharton Counties. I had briefed the issue, but the State dismissed the indictment the day their brief was due.
  • Texas Penal Code Section 42.01(a)(8)—disorderly conduct by exhibiting a firearm in a manner calculated to alarm. The State dismissed this case as well.
  • Texas Penal Code Section 21.15—improper photography. The Court of Criminal Appeals held half of this statute unconstitutional last year; we’re going after the other half, which forbids taking or broadcasting bathroom or dressing-room images with the intent to invade the privacy of the complainant or arouse or gratify the sexual desire of any person. My appeal is pending in the Fourteenth Court of Appeals; the State’s brief is due November 18th.

When the State starts prosecuting people under Section 21.16 of the Texas Penal Code—Unlawful Disclosure or Promotion of Intimate Visual Material, Texas’s new revenge-porn statute, effective September 1, 2015—I’m sure Texas lawyers will keep me in that loop as well.

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2015.85: Reputation Management Expert Patrick Zarrelli Weighs In

Thus spake Patrick Zarrelli:

We called you honestly and professionally about our client. We work in cyber bullying, a real field, that’s important. You instantly began to swear at me, after admitting that you and Greenfield are friends who support each others blogs for SEO purposes. In this case to SEO under my clients name for advertising. Then when I told you why I called, and you realized you had exposed yourself and Greenfield in possible unethical advertising practices you freaked. Based on this article I cant tell your still angry and its clouding your judgment.

There is nothing honest or ethical about this article or your advertising techniques. Now you say im on cocaine because I dare call you on the phone politely? That’s really dishonest my friend. Im sorry your so angry, but what you are doing here is dark, unethical, and not benefiting of a lawyer or the bar you licensed under.

All it is, is text book, cyber bullying. Posted for no other purpose except to hurt others, and encourage your friends, and fellow unethical marketers, to join in on the personal attack of an honest person.

Bullshit, Zarrelli.

You are not a “professional.” You are a born loser trying to muddle by, a socially retarded 36-year-old man-child with a string of failures who is still trying to figure out why the world has stopped handing things to him on a silver platter.

That’s okay. Most people are more or less like that. People who smoke a lot of weed don’t mature; this is not a world that hands things to people on silver platters; most entrepreneurs fail serially.

You called to try to extort me with threats of frivolous grievances. You asked me if I was Greenfield’s friend, and I told you I was. I’d never deny that. I hung up on you, and you called back to continue making your threats. You claimed that you knew more free-speech law than me, and I told you not to threaten, but to do it. The rest—SEOing your client’s name for advertising—is but a product of your fevered imagination.

Greenfield wrote a blog post about you this morning. One post. The only time he has mentioned your name.  He published two hours ago. When I google your name—just <Patrick Zarrelli>—Greenfield’s posts comes up in the #5 slot, after your carefully cultivated social-media pages. When I google <Patrick Zarrelli reputation management> it’s the first hit. Nobody had to do any SEO to make that happen; I hadn’t linked to it until just now. It’s just Scott’s blog, which Google absolutely loves.

Scott’s blog has Google Pagerank 6. You do not have anything that compares. His post about you will be at the top of Google search results by the end of the day, and it will stay there for as long as you want to keep playing.

Google loves Scott’s blog (and likes mine, but not in that way) because it isn’t marketing. Scott gets up early every morning and writes two or three blog posts about whatever the hell he wants to write about. People read him, and think, or laugh, or become outraged, and they comment and share. There is no call to action, no bragging about his legal talent or his latest win. Scott isn’t writing to get clients, he’s writing because writers gotta write.

Scott and I both wrote about your purported client Gary Ostrow because Ostrow did something that was in our respective wheelhouses: he put out a press release claiming to be taking high-profile cases. That press release is still there.

Why would that be interesting to us? Because not everybody thinks like you and Gary Ostrow do. Not everyone sees everything as marketing. Some of us think that educating and entertaining, being educated and entertained, are more important than attracting more money.

Anyway, there is no way in the world that pointing and laughing at Gary Ostrow’s foolishness (or yours) is going to bring Greenfield or me a single client.

So anyway, I guess that’s a digression. A little insight for you.

A man does not threaten to do things. If you’re going to do something, do it. If you’re not, don’t.

I don’t like being threatened. If you happen to threaten me, I will not respond with threats. I will brush it off, or I will strike.

I don’t like being grieved. I’ve been grieved before for the content of my blog. I’ve even been sued for the content of my blog. Nothing has ever taken. The inconvenience has ranged from piddly to moderate.

I don’t like having people tell me what I can and can’t say. I’d suffer major inconvenience rather than cave to a censor. There are blogging lawyers who would cower in the face of a grievance threat; I am not one of these lawyers. Defending free speech is what I do for a living; I’m not going to give up my own free speech for convenience’s sake.

So when you tried to extort me by threatening to file a grievance against me for the content of my blog, I have to admit that it pushed my buttons. I could have told you that it’d push Greenfield’s buttons as well.

As a result, your client’s reputation has suffered. You’ve made it about yourself, and your client’s reputation will suffer more because he is yoked to you.

It’s not my job to teach you anything, Patrick—that should have been your parents’ task—but I offer a pointer for the other aspiring reputation managers who might stumble across this post. Because criminal-defense lawyers are the OG reputation managers:

Know your audience. Before you make a run at a guy, figure out what is going to help your client most. You only get one chance to get it right, and if you get it wrong and try to threaten a guy who won’t be threatened, you’ve failed. When it comes to reputation management, success is fleeting, but failure is forever.

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2015.84: Dear Gary Ostrow (updated)

Dear Gary,

I had forgotten, to tell you the truth, that I’d written this little bagatelle about your ridiculous Gary Ostrow Lawyer Announces He Is Taking on All Celebrity Criminal Cases in Florida press release. It’d been a couple years, and it wasn’t a big deal at the time. It attracted a few comments then slipped my mind.

Then I got a phone call today from some guy calling himself Patrick Zarrelli. He claimed to be doing reputation management on your behalf. He said something about cocaine—I can’t be sure whether he was talking about himself or about you.

Anyway, this Patrick Zarrelli guy threatened to file a grievance against me if I didn’t take the post down.

I tried to explain to Zarrelli that I’m a First Amendment lawyer and that I’ve been unsuccessfully grieved and sued for the content of this blog. He didn’t seem to catch the gist; he kept threatening, acting like he thought he knew the law. There was some mumbo-jumbo about it not being “hot news,” so that I had to take it down. Apparently he has lawyers in his family, so he’s an expert. I know: crazy, right? (Do you think it was the cocaine talking?) [Update 10/30: Patrick assures me that he doesn’t do cocaine, so he must have been talking about the cocaine in connection with you. How do you feel about that, Gary?]

I don’t play well with extortionists, so I told Zarrelli to go ahead and file his grievance. I may have dropped an f-bomb or two—Gary, don’t you hate it when people threaten to do stupid things instead of just doing them? I know I do.

Anyway, Gary, I thought you’d like to know that some stupid asshole calling himself Patrick Zarrelli is going around trying to fuck up your reputation while claiming to be your agent. Despite the judgment errors in your past (which are legion—we all make mistakes), I doubt that you are dumb enough to hire this Zarrelli character to try to push me around.

Are you, Gary?

Anyway, you might want to get ahead of this one, since if Zarrelli makes the same call to Scott Greenfield, all hell is likely to break loose.



p.s. Can you cook?

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2015.83 Dean Boland’s Threats Untethered From Truth

I did not enter into any agreement called a “deferred prosecution agreement” nor even words to that effect.  This statement is false and defamatory and damaging to my professional reputation.

. . . . .

I never entered a deferred prosecution agreement with the government.  This statement is defamatory and causing me real, financial harm which is calculable.

Dean Boland, October 2015.

On the criminal side, the government alleged that Boland’s conduct violated federal criminal child pornography laws, leading to a deferred prosecution agreement with him.

. . . . .

In his deferred prosecution agreement, he suggested as much, stipulating that he “downloaded at least four … images, from the Internet, depicting four … real, identifiable minors in innocent poses,” and then “digitally manipulated such images … to appear that each of the … minors was engaged in sexually explicit conduct.” R.73-1 at 10. In his apology, he added, “I do recognize that such images violate federal law.” Id. at 12.

—Doe v. Boland, 630 F.3d 491 (6th Cir. 2011).

Dean Boland’s denial that he entered into the deferred prosecution agreement quoted by the Sixth Circuit was in the context of a demand that Scott Greenfield revise or remove this sympathetic post. Scott had, when Boland approached him before, expressed a willingness to remove the post if it would do him any good:

I responded to Boland by telling him that if he was able to persuade the others to take their posts down, I would remove mine. If not, then there was nothing to be gained.

That was a wholly unnecessary kindness on Scott’s part, which Dean Boland must have interpreted as weakness, because his next move was to lie to and threaten him. Like Scott, I had some sympathy for Boland when he got dinged for trying to concretize a legal point. But whatever consideration he might have had, he threw that away. And in doing so he might just have made things worse.

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