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2015.13: When is a Model Not a Model?

Mark's Blog: Defending People - Thu, 01/08/2015 - 20:47

Being of questionable character, she then quietly changed her model law, without conceding her initial model law was fundamentally flawed, or acknowledging that her detractors had a point, to add her “public interest” exception. This, she contended, cured all First Amendment problems, aside from all the others she continued to vehemently deny

Following up on SHG’s comment, here is Mary Anne Franks’s model revenge-porn-criminalization statute from October 2013:

Whoever intentionally discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.

(a) Definitions: For the purposes of this section,

1) “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.

2) “intimate parts” means the naked genitals, pubic area, buttocks, or female adult nipple of the person.

3) “sexual contact” means sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.

(b) Exceptions:

1) This section shall not apply to lawful and common practices of law enforcement, reporting of unlawful activity, or legal proceedings.

2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.

Franks acted pretty sure in November 2013 that that statute was defensible. Then she quietly changed it. Here is her model revenge-porn-criminalization statute from July 2014:

An actor may not knowingly disclose an image of another, identifiable person, whose intimate parts are exposed or who is engaged in a sexual act, when the actor knows or should have known that the depicted person has not consented to such disclosure.

A. Definitions. For the purposes of this section,

(1) “Disclose” includes transferring, publishing, distributing, or reproducing;

(2) “Image” includes a photograph, film, videotape, recording, digital, or other reproduction;

(3) “Intimate parts” means the naked genitals, pubic area, or female adult nipple of the person;

(4) “Sexual act” includes but is not limited to masturbation, genital, anal, or oral sex.

B. Exceptions. This section does not apply to

(1) Images involving voluntary exposure in public or commercial settings; or

(2) Disclosures made in the public interest, including but not limited to the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.

I’ll bet Franks is really sure about this one. Trust her.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (74.125.176.144) .)

2015.12: “In the Public Interest”

Mark's Blog: Defending People - Wed, 01/07/2015 - 21:36

Revenge-porn-criminalization mouthpiece Mary Anne Franks writes in her Guide for Legislators:

The law SHOULD contain … narrow exceptions for disclosures made in the public interest. Otherwise, individuals could be prosecuted … for recording and reporting unlawful activity, such as flashing.

Franks’s model statute “does not apply to”:

Disclosures made in the public interest, including but not limited to the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.

A commenter here asked, “why isn’t it in the public interest for people to continue to engage in sharing harmless pictures of innocent kids?”

This raises questions, among them:

  1. When someone publishes something that is otherwise forbidden, who decides whether something is in the public interest?;
  2. What does it cost the speaker to get that decision;
  3. What is in the public interest, and what isn’t?; and
  4. What is the effect of the “public interest” exception on the chilling effect of the statute?

1.

Suppose that Jane publishes something that offends John, and John calls the police. If the publication isn’t in the public interest, it is felonious. Who decides whether something is “in the public interest,” so that Jane is free, or is not, so that Jane is a convicted felon?

The cops could decide off the bat that Jane’s publication  was “in the public interest,” and tell John to get a life. Or they could call…

The prosecutor, who could decline charges because Jane’s publication was “in the public interest,” or she could punt to…

The grand jury,1 which could no-bill Jane because her publication was “in the public interest,” or could true-bill her.

The judge doesn’t have the power to hear the case, decide that the publication was “in the public interest,” and dismiss the case over the prosecutor’s objection. Not, at least, until the State has rested its case at trial, when she can order a directed verdict. If she doesn’t, the case goes to…

The jury, which could acquit Jane if it had a reasonable doubt about whether the publication was “in the public interest.” If the jury doesn’t do so, Jane gets convicted. She may go to jail or prison, may be put on probation, or may make bail on appeal and go on to…

The court of appeals, which could rule that Jane’s publication was “in the public interest” as a matter of law. The Court of Criminal Appeals or the U.S. Supreme Court could do the same thing.

2.

If the cops or the prosecutor decide that his speech was “in the public interest,” Jane might get off without being arrested, making bail, or getting a lawyer.

If the cops and the prosecutor both see her speech as not “in the public interest,” Jane will be cuffed and stuffed, have a public record made of her arrest, have to spend money getting out of jail, have to get a lawyer, have to take time off from her daily routine to go to court, and have to worry about the possibility of a conviction.

If, after she is charged, the charge is dismissed or she is acquitted she can petition for expunction, but this will cost her additional money and lawyer fees.

If she is convicted and appeals, the process keeps getting more expensive for her.

3.

So what is Jane shooting for here? What does “in the public interest” mean? “The reporting of unlawful conduct” and “the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment,” sure. But not only that—the list in the model statute is explicitly non-exclusive: “including but not limited” to those things.

The commenter quoted above asked, “why isn’t it in the public interest for people to continue to engage in sharing harmless pictures of innocent kids?”. This is the wrong question. The right question is not whether the category of disclosure in which Jane is involved is generally in the public interest, but whether the particular disclosure by Jane is “in the public interest.”

Is it “in the public interest” for Jane to send a picture of her naked child to her mother? While I think it’s in the public interest for people to be able to send each other pictures of their naked children, I also think that free speech generally is in the public interest, which makes me the weirdo in this discussion. But while free speech generally is in the public interest, that particular disclosure is a purely private matter.

So the commenter and I disagree on whether Jane’s disclosure of the baby picture is in the public interest. And it’s a reasonable disagreement. We have juries to determine issues on which there can be reasonable disagreement.

“In the public interest” is a sop to the Weiner fetishists—those whose sole objection to revenge-porn criminalization is that statutes penalizing revenge porn would have forbidden the publication of Congressman Anthony Weiner’s penis pictures. “See,” the zealots can giddily say, “that would have fallen under the public-interest exception! So it wouldn’t be forbidden by this statute!”

Don’t fall for it. Cops might not have thought that the disclosure of Weiner’s pictures of his own jamschwaber was in the public interest. The prosecutor might not have thought that it was in the public interest. The jury might not have thought that it was in the public interest. Because “in the public interest” is not defined, the judge, the court of appeals, the Court of Criminal Appeals, and the Supreme Court might all have deferred to the jury.

Most people see as “in the public interest” those things that advance their agenda, and to see as “not in the public interest” those things with which they don’t agree. If the woman who leaked Weiner’s sexts had been prosecuted under the model statute in a jurisdiction very friendly to Weiner, everyone who in theory should have stopped the prosecution might have agreed that the disclosure was not in the public interest.

Imagine if flag burning, pornography, or criticism of public officials were a crime unless it was “in the public interest”: whether the state could get a conviction would depend on whether the community sided with or against the speech.

4.

How does Jane know before speaking whether she will be subjected to prosecution? As a practical matter, we can’t count on elected officials or jurors to declare that unpopular speech is “in the public interest,” so absent a definition, what “speech in the public interest” means is “politically correct speech.” If Jane’s speech is politically popular, she is okay; if it is not, she is in danger.

How does the speaker know before speaking whether he will be subjected to prosecution?

Suppose that John is violent and dangerous. It’s “in the public interest” to reveal that, no? Suppose that there is some disagreement about whether John is violent and dangerous. Still in the public interest to disclose that Jane thinks he is? How about if, instead of violent and dangerous, Jane thinks that John is promiscuous and unfaithful? If other women know that, they’ll be better off. So is disclosure “in the public interest”? What if Jane illustrates her posts about John’s undiscriminating infidelity with pictures of John? What if the pictures happen to be nudes? Where do we cross the line from “in the public interest” to not “in the public interest”? I challenge you to name that point.

There is no principle on which we can decide what is “in the public interest.” It’s a feel-good phrase intended to make us think that the really important speech will still be protected. The problem is that the really important speech isn’t universally recognized as “in the public interest.” The really important speech is seen by the majority as not “in the public interest.” The really important speech is politically incorrect.

“In the public interest” is not some magic phrase that renders a content-based speech restriction constitutional and safe. Most people would choose not to speak rather than risk prosecution, even if they think they have a defense that will probably apply. A content-based statute that forbids speech unless it is politically correct is as chilling as a content-based statute that forbids all speech.

The model statute’s sop for the Weiner fetishists is no answer to the constitutional argument, and no cure for the problem caused by all overbroad content-based statutes: the problem of chilled speech.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (173.255.254.15) .)
  1. We’re talking about Texas criminal procedure here because that’s what I know best. 

Je Suis Charlie.

Mark's Blog: Defending People - Wed, 01/07/2015 - 19:04

I interrupt my regularly scheduled blog post for this.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (99.52.182.69) .)

2015.11 Also, in Mary Anne Franks’s Perfect World

Mark's Blog: Defending People - Tue, 01/06/2015 - 15:03

This could land you in prison in #AZ via @berkitron https://t.co/BICDqe4XUa

— ACLU National (@ACLU) September 23, 2014

That’s a tweet from the American Civil Liberties Union. The link within it is to a blog post written by Lee Rowland (@berkitron), Staff Attorney, ACLU Speech, Privacy & Technology Project.

Sharing that image would be “disclos[ing] an image of another, identifiable person, whose intimate parts are exposed … when the actor knows or should have known that the depicted person has not consented to such disclosure.”

Disclosing an image of another identifiable person whose intimate parts are exposed when you should have known that the person has not consented to the disclosure would violate the model revenge-porn statute proposed by Mary Anne Franks.

So in Franks’s perfect world, as in Arizona, sharing that image would be a crime unless it were done “in the public interest.”

But while Rowland decries the Arizona statute, she approves of  the model statute.

Go figure.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (74.125.40.21) .)

2015.10: A Fox in the Civil-Liberty Henhouse

Mark's Blog: Defending People - Tue, 01/06/2015 - 14:18

When I argued Ex Parte Lo at the Court of Criminal Appeals, I used section 33.021(c), the “actual solicitation” portion of Texas’s Online Solicitation of a Minor statute as an example of a constitutional limitation on speech. I hadn’t given section 33.021(c) a lot of close attention, but it talked about “soliciting” a “minor” for sex, and soliciting a minor for sex is generally recognized as unprotected speech.

Looking at it more closely, it’s obvious that the “solicitation” described by section 33.021(c) is not necessarily solicitation (because a defendant cannot raise his lack of intent to meet as a defense) and the “minor” described by section  33.021(c) is not necessarily a minor (because it can be an adult who represents himself to be a minor, but whom the defendant knows not to be a minor). Non-solicitation of a minor is constitutionally protected speech, as is solicitation of a non-minor.

But now that the section 33.021(c) cases are rolling in and I’m challenging the constitutionality of that statute, my ill-thought-out argument in Lo, holding up section 33.021(c) as an example of a speech restriction done right, is coming back to bite me in the butt: in its opinion in Lo the Court of Criminal Appeals adopted, in dicta, that particular argument.

Now I’m much more careful about agreeing that a content-based restriction on speech is valid. So this caught my eye:

Arizona’s law clearly violates the First Amendment, because it criminalizes protected speech,” said Lee Rowland, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. She added, “States can address malicious invasions of privacy without treading on free speech, with laws that are carefully tailored to address real harms.”

(ACLU.org)

I wonder how Rowland derived this principle of First Amendment law. Neither “malicious speech,” “invasions of privacy,” “malicious invasions of privacy,” nor “really harmful speech” is a category of speech that the Supreme Court has identified as unprotected. I suspect that the principle is not well-considered, but only what Rowland would like the law to be. For Rowland’s enthusiasm for criminalization of more speech is undisguised:

I refer to HB2515 as Arizona’s “naked photo law” because referring to it as an “anti revenge porn” law does a disservice to the advocates and victims who are putting pressure on state legislatures to criminalize revenge porn. Professor Danielle Citron at the University of Maryland Francis King Carey School of Law and Professor Mary Anne Franks at the University of Miami School of Law have been at the forefront of the conversation about criminalizing revenge porn, and have drafted model revenge porn legislation.

The Arizona law bears little resemblance to their proposals.

Note that the link is not to model revenge porn legislation, but rather to Citron and Franks’s law review argument in which they produce a farrago of feeble First Amendment arguments for criminalization of revenge porn—arguments such as “not matters of public concern” and “obscenity,” either of which, followed to its logical conclusion, would allow the criminalization of all erotica.

Here is Citron and Franks’s model revenge porn legislation, to which Rowland approvingly refers, and which she claims “bears little resemblance” to the Arizona law:

An actor may not knowingly disclose an image of another, identifiable person, whose intimate parts [naked genitals, pubic area, or female adult nipple] are exposed or who is engaged in a sexual act, when the actor knows or should have known that the depicted person has not consented to such disclosure.

…B. Exceptions. This section does not apply to

(1) Images involving voluntary exposure in public or commercial settings; or

(2) Disclosures made in the public interest, including but not limited to the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.

And here is the Arizona revenge-porn statute that Rowland, as counsel for the plaintiff, is suing to oppose:

IS UNLAWFUL TO INTENTIONALLY DISCLOSE, DISPLAY, DISTRIBUTE, PUBLISH, ADVERTISE OR OFFER A PHOTOGRAPH, VIDEOTAPE, FILM OR DIGITAL RECORDING OF ANOTHER PERSON IN A STATE OF NUDITY OR ENGAGED IN SPECIFIC SEXUAL ACTIVITIES IF THE PERSON KNOWS OR SHOULD HAVE KNOWN THAT THE DEPICTED PERSON HAS NOT CONSENTED TO THE DISCLOSURE

B. THIS SECTION DOES NOT APPLY TO ANY OF THE FOLLOWING:
1. LAWFUL AND COMMON PRACTICES OF LAW ENFORCEMENT, REPORTING UNLAWFUL ACTIVITY, OR WHEN PERMITTED OR REQUIRED BY LAW OR RULE IN LEGAL PROCEEDINGS.
2. LAWFUL AND COMMON PRACTICES OF MEDICAL TREATMENT.
3. IMAGES INVOLVING VOLUNTARY EXPOSURE IN A PUBLIC OR COMMERCIAL SETTING

Rowland says that they “bear little resemblance,” but the only distinction between the Arizona statute that Rowland is suing to enjoin, and the model statute that she approves is that the model statute would allow a defense for disclosures in the public interest, other than those listed in the Arizona statute’s (B)(1–3).1

A general public-interest exception doesn’t cure a content-based restriction’s unconstitutionality: the statute is no less chilling on speech merely because the speaker can hold out hope that, once he has been arrested and charged and is facing prison time, he might convince a jury that his speech was in the public interest.

The ACLU

is our nation’s guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country.

These rights include:

  • Your First Amendment rights – freedom of speech, association and assembly; freedom of the press, and freedom of religion.
  • Your right to equal protection under the law – protection against unlawful discrimination.
  • Your right to due process – fair treatment by the government whenever the loss of your liberty or property is at stake.
  • Your right to privacy – freedom from unwarranted government intrusion into your personal and private affairs.

Criminalization is the opposite of liberty. That a staff lawyer with ACLU’s Speech, Privacy, and Technology Project—one of the lawyers suing on behalf of the ACLU to invalidate a revenge-porn statute—refers approvingly to the criminalization of revenge porn, and links approvingly to Citron and Franks’s article, is troubling. The organization’s representative speaking on these issues should be a lawyer who values liberty even when it’s uncomfortable and politically incorrect to do so. By all indications, Lee Rowland isn’t that lawyer.

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  1. Franks’s criticism of the Arizona statute is not only that it does not “include a public purpose exception,” but also that it applies an “overbroad definition[] of nudity.”  The Arizona statute defines “state of nudity” as:

    (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.

    Arguably this is less nude than the “intimate parts…exposed” of the model statute, so that the definition of nudity is “overbroad,” but the better argument is that transparently-clothed intimate parts are “exposed.” In any case, there is nothing constitutionally magical about nudity, nor about the nipple rather than the breast below the top of the areola. 

2015.9: Texas HB101 and Arizona HB2515

Mark's Blog: Defending People - Tue, 01/06/2015 - 11:40

IS UNLAWFUL TO INTENTIONALLY DISCLOSE, DISPLAY, DISTRIBUTE, PUBLISH, ADVERTISE OR OFFER A PHOTOGRAPH, VIDEOTAPE, FILM OR DIGITAL RECORDING OF ANOTHER PERSON IN A STATE OF NUDITY OR ENGAGED IN SPECIFIC SEXUAL ACTIVITIES IF THE PERSON KNOWS OR SHOULD HAVE KNOWN THAT THE DEPICTED PERSON HAS NOT CONSENTED TO THE DISCLOSURE

Ariz. Rev. Stat. § 13-142 (effective 2014).

(b) A person commits an offense if the person:
(1) intentionally displays, distributes, publishes, advertises, offers, or otherwise discloses visual material depicting another person engaged in sexual conduct; and
(2) knows or should have known that the depicted person has not consented to the disclosure.

Texas HB101.

Almost the same thing, right? There is a distinction: while the Arizona statute criminalizes the publication of an image of another person “in a state of nudity,” the Texas statute requires “sexual conduct,” which includes “lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.” But lewdness is in the eye of the beholder, and does not differentiate the statutes in a constitutionally significant way.

The Arizona statute is the subject of an ACLU lawsuit,1 Here’s the complaint the ACLU filed. With the agreement of the Arizona Attorney General, the U.S. District Judge in that case blocked enforcement of the law. That doesn’t bode well for House Bill 101.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (162.243.220.153) .)
  1. If the ACLU bothers to oppose it it must be really bad. 

2015.8: Let’s Play Servant and Master

Mark's Blog: Defending People - Mon, 01/05/2015 - 19:08

Scott Greenfield wants the backstory? Here’s the backstory.

I asked the Collin County Sheriff’s Office for Sergeant (now Investigator) Christopher M. Meehan’s personnel file. Robert J. Davis, representing the Sheriff’s Office, requested an opinion from the Attorney General allowing the Sheriff’s Office to withhold the bulk of the cop’s personnel file for various reasons, ranging from the specious (“There is certainly no information contained in the personnel file of Investigator Meehan which is a a legitimate concern to the public…”) to the offensively stupid (the language quoted in 2015.6).

I haven’t yet written about the New York Police Department’s petulant response to criticism (as a Libertarian, I don’t want to discourage them in making only the arrests that they “have to”: you go, guys!), but that, Justin Keiter‘s petulant response to my naming him as the lawyer engaging in what an appellate dissent called “egregious misconduct,” and Davis’s response to my public-information request on behalf of the Collin County Sheriff’s Office are all of a piece: public servants behaving as though they are masters.

The master gets to criticize the servants. The master gets to know which servants are engaged in misconduct. The master gets to poke around in the servants’ business.

The servant who forgets this needs to be let go.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (173.255.254.15) .)

2015.7: Justin Keiter

Mark's Blog: Defending People - Mon, 01/05/2015 - 17:19

[A]ll trial lawyers who make improper arguments…have no business lamenting the public’s low perception of lawyers. They need only look in the mirror.

I wasn’t even very hard on him: I just republished part of a dissenting opinion criticizing a closing argument that Justin Keiter had made, and connected Keiter’s name with it.

Keiter took the criticism hard. I was riding on the elevator today when Justin got on with a little smile on his face. He looked around, saw me, stopped smiling, faced front and got off the elevator at the next stop. (Other people on the elevator noticed. They commented.) A year later he can’t even bear to look at me.
Judges criticize prosecutors, but almost always without using their names. I won’t guess at Justice Jennings’s motivation for not naming Justin Keiter in the opinion. Apparently there’s no reason the public should know who the lawyer responsible for “egregious misconduct” (Jennings’s words) was.
Jennings wrote:

Indeed, the majority’s opinion in this case will actually encourage such improper behavior and ensure that it continues.

He is probably right—the majority’s opinion will encourage improper behavior. But the dissent that doesn’t name the perpetrator won’t do much to stop it.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (74.125.19.147) .)

2015.6: Dallas Lawyer Robert J. Davis

Mark's Blog: Defending People - Sun, 01/04/2015 - 21:02

There are dangerous pedophiles in the world, and some of them are civil lawyers. But that is no reason to assume that Dallas lawyer Robert J. Davis is either a pedophile or dangerous.

Because assuming that a civil lawyer like Robert J. Davis is a dangerous pedophile would be like assuming that a criminal lawyer is in cahoots with dangerous drug dealers.

And I wouldn’t do that. Most civil lawyers are not dangerous pedophiles, so if I had to take a position on the question I would be comfortable saying this: Robert J. Davis is neither dangerous nor a pedophile.

In that way I’m unlike Robert J. Davis, who wrote in a letter to the Attorney General:

It is self-evident that the release of Investigator Meehan’s personnel file to an attorney who represents alleged drug dealers could pose a threat to Investigator Meehan and his family’s personal safety and well being.

It’s probably several orders of magnitude more likely that a randomly chosen civil lawyer will diddle children than that a randomly chosen criminal-defense lawyer will reveal an officer’s information to people who would pose a danger to that officer.

But still, trust Robert J. Davis with your kids if you want to. I’m sure it’ll be okay.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (173.201.196.32) .)

2015.5: The Press and Professors

Mark's Blog: Defending People - Sun, 01/04/2015 - 00:03

When the media need an opinion on some legal issue, often they will go to the nearest law school. The reasoning—which is sound in theory—is that if a professor lists, say, “immigration law” as one of her subjects, then she will be an expert in the subject.Most law professors, who live lives of quiet desperation writing academic articles that few will ever read, are happy to opine on any subject. Unfortunately, while they sometimes have deep knowledge of narrow areas of law, in other areas—even areas that they teach—they are swimming in the shallow end of the pool.A case in point:

The Texas Court of Criminal Appeals tossed out part of the “improper photography and visual recording” statute. Some reports make it sound like the Court has given the green light to “pervs” taking video or pictures up a woman’s dress. University of Houston law professor Peter Linzer says that’s not so. “Notice this didn’t involve what they call “upskirting” or anything like that. This was a guy taking pictures underwater, of some young girls in bathing suits and there’s nothing wrong with that” says Linzer.

This ruling was based on one specific case out of San Antonio where it was suspected a man took the pictures for sexual gratification. “The Court of Criminal Appeals struck that down because that’s getting in your mind. That’s saying that if you pick up the Bible and want to read about David and Bathsheba and you ”get off” on adultery, that’s a crime. Well we can’t make that a crime. We can’t do that because then how do we decide what’s going on inside people’s heads” Linzer explains.

Peter Linzer demonstrates unfamiliarity with the facts, with the procedure, and with the substantive law.

The fact is that Mr. Thompson was accused of taking pictures above water. It probably doesn’t change the point,1 but where Linzer got “underwater” is a mystery. Maybe it just sounded better to him.

The procedure was an as-written challenge to a penal statute. When an as-written First Amendment challenge is successful (as in this case) the law is void not only in the cases of speech that we think there’s nothing wrong with,2 but also in the case of speech that we think there is something wrong with.

If, as in Thompson, the law forbidding pool pictures and upskirt pictures is thrown out because of an as-written challenge in a case that happens to have involved pool pictures, upskirt pictures are no longer illegal either.

The substantive law that the Court of Criminal Appeals applied in the case was strict scrutiny of a content-based restriction on speech. The substantive law that the Court of Criminals should have applied in the case was a categorical approach: does the statute forbid a substantial amount of speech that doesn’t fall into an unprotected category?

Under either approach a statute forbidding upskirt photos would fail because upskirt photos do not fall into any category of unprotected speech. For such a statute to survive Constitutional scrutiny the courts would have to recognize a new category of unprotected speech into which upskirt photos fall.

That the Supreme Court would do that is not inconceivable, but whether the Supreme Court will someday recognize another category of unprotected speech has nothing to do with the subject of the article: the effect of the Court of Criminal Appeals’ opinion in Ex Parte Thompson, invalidating the “photography in public” portion of the Improper Photography statute.3

Someone at the Harris County DA’s Office weighed in as well:

The Harris County D-A’s office is interpreting that as well saying, “It remains illegal if the victim did not know she or he was being photographed. Anything in public appears to be legal. …”

You know what’s awesome? When you can give an opinion to the press on a subject and say directly contradictory things in consecutive sentences.

Peter Linzer and the DA’s Office could have avoided making people stupider by declining to comment to the press on a case with which they weren’t familiar in an area to which they hadn’t given much thought. By choosing not to do so they did the public a disservice.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (104.237.128.11) .)
  1. Does it? Is an underwater picture more like an upskirt picture than an above-the-water picture is? 

  2. Linzer, who thinks there is “nothing wrong with” photos of young girls in swimsuits, taken for sexual gratification, is definitely not invited to my kids’ next pool party. The behavior is creepy, as is the behavior of taking upskirt photos, but there is not a First Amendment Exception for creepiness. 

  3. The “transmission of public photographs,” “photography in a dressing room,” and “transmission of dressing-room photographs” portions of the statute are still law, for the moment. 

2015.4: Another Proposed Revenge-Porn Statute

Mark's Blog: Defending People - Fri, 01/02/2015 - 17:35

A prosecutor asked me recently whether I might be willing to work with legislators to write a revenge-porn statute that would pass First Amendment muster. I replied that I would, but that I didn’t think  it could be done.

The United State’s Supreme Court’s modern approach to First Amendment challenges to content-based penal restrictions of speech, as applied in U.S. v. Stevens and U.S. v. Alvarez, is a categorical one:

  • If a penal statute restricts a substantial amount of protected speech based on its content, it is invalid.
  • All speech is constitutionally protected unless it falls in one of a very few narrowly defined categories of historically unprotected speech.
  • Among those categories1 are:
    1. Advocacy intended, and likely, to incite imminent lawless action;
    2. [Distribution of] obscenity;
    3. Defamation;
    4. Speech integral to [non-speech] criminal conduct;
    5. So-called “fighting words”;
    6. Child pornography;
    7. Fraud;
    8. True threats; and
    9. Speech presenting some grave and imminent threat the government has the power to prevent.2

For a revenge-porn statute to be constitutional, it would have to either:

  • Not be content-based;
  • Restrict speech only in one of the nine recognized categories of unprotected speech; or
  • Restrict speech only in a newly recognized category of unprotected speech.

A restriction on speech is content-based if the content of the speech matters. By definition, a revenge-porn statute will be content-based: posting sexual images of a person will be restricted, but posting grumpy-cat pictures will not be.

Revenge porn does not fall into one of the nine recognized categories of unprotected speech.

Advocates of revenge porn criminalization have latched gleefully onto Eugene Volokh’s suggestion that “Historically and traditionally, such depictions would likely have been seen as unprotected obscenity” without considering the endgame of the parenthetical that follows: “(likely alongside many consensual depictions of nudity).”

The zealots—Mary Anne Franks and Danielle Citron chief among them—would throw out the baby (consensual depictions of nudity) with the bathwater (nonconsensual depictions of nudity). If the image is obscene when Jane takes it of Joe, it is obscene whether Joe has consented or not.

Franks and Citron have also proposed that revenge porn, being of purely private concern, is less protected than other speech. Adoption of this rule would allow the state to outlaw all erotica, as well as family photos and personal correspondence. Such is the way of zealots.

Publication of revenge porn is an invasion of privacy. The amateur understanding of the First Amendment is that violations of privacy are not protected speech. But “speech that violates privacy” is not one of the categories of speech that can be criminalized. Nor is “embarrassing speech” or “harmful speech.”

Here’s the text of one of Texas’s proposed new revenge-porn bills (HB 101):

Sec. 21.16. UNLAWFUL DISCLOSURE OF CERTAIN VISUAL MATERIAL.
(a) In this section:
(1) “Sexual conduct” has the meaning assigned by Section 43.25.
(2) “Visual material” has the meaning assigned by Section 43.26.
(b) A person commits an offense if the person:
(1) intentionally displays, distributes, publishes, advertises, offers, or otherwise discloses visual material depicting another person engaged in sexual conduct; and
(2) knows or should have known that the depicted person has not consented to the disclosure.
(c) It is a defense to prosecution under this section that:
(1) the disclosure is made in the course of:
(A) lawful and common practices of law enforcement or medical treatment;
(B) reporting unlawful activity; or
(C) a legal proceeding, if the disclosure was permitted or required by law;
(2) the disclosure consists of visual material depicting only a voluntary exposure of sexual conduct in a public or commercial setting; or
(3) the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, or a provider of an information service, as defined by 47 U.S.C. Section 153, and the disclosure consisted of visual material provided by another person.
(d) An offense under this section is a state jail felony.

The restricted speech is:

  • Disclosure of visual material (other than by cops, doctors, snitches, lawyers in court, or online services);
  • Depicting another person engaged in sexual conduct (unless exposed voluntarily in public or commercial setting);
  • Knowing (or should-knowing) that the person has not consented to disclosure.

That does not fall into any recognized category of unprotected speech.

For this or any other revenge-porn statute to pass constitutional muster, is the recognition of another category of historically unprotected speech.

The thing about these categories of unprotected speech is that everything in them is unprotected. There is not some obscenity that may be distributed, and some obscenity that may not be; nor is there some protected and some unprotected defamation. If speech falls into a category of unprotected speech, then it is unprotected and the government can punish it. So before approving a new category of unprotected speech, we had better see if there is a baby in the bathwater.

So how would we define the category of unprotected speech?

We could recognize a really narrow category of unprotected speech, essentially sui generis—disclosure of visual material depicting another person engaged in sexual conduct knowing that the person has not consented, if none of the exceptions apply.

The Supreme Court has not shown an inclination to micromanage categories of unprotected speech in that way. The narrowest recognized category—child pornography—is arguably a subcategory of speech integral to criminal conduct.

But if it did, even such a microcategory would allow the criminalization of (and this statute would in fact criminalize) the publication of Congressman Weiner’s dick pics. Any broadening of the category (for example, “disclosure of visual material depicting another person engaged in sexual conduct” or “disclosure of visual material depicting another person, knowing that the person has not consented,” or “violations of privacy”) would create vast holes in the First Amendment—we must be able to violate people’s privacy sometimes without fear of imprisonment.

Even if we don’t see it, the wise thing to do, before tossing out a part of our freedom of speech that we would never want to use anyway, is to ask whether there might be a baby hiding in the bathwater that we’re just not seeing. People who are more concerned about the government intruding into our lives than about vindictive ex-girlfriends doing so should oppose this and any other effort to attach a criminal penalty to something that is currently constitutionally protected.

But they won’t. Do-gooders will support the criminalization of bad conduct without consideration of its effect on good conduct. We’ll wind up with another revenge-porn penal statute that can’t be justified under current constitutional law.

Fortunately, getting the U.S. Supreme Court to recognize a new category of unprotected speech is not an easy proposition. Unfortunately, people will be arrested and prosecuted, timid do-gooder trial and appellate courts will uphold the bad statute, and the government will destroy more lives before the issue hits the U.S. Supreme Court, or even the Texas Court of Criminal Appeals.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (173.255.254.15) .)
  1. The list is not exclusive because it is possible that other categories will be recognized in the future. 

  2. “…although a restriction under the last category is most difficult to sustain.” 

2015.2: Grammar Peeve

Mark's Blog: Defending People - Thu, 01/01/2015 - 17:01

A defendant should never “plea guilty” because “plea” is not a verb. The infinitive is “to plead.” The past tense is “pleaded” or “pled.” Which you use is a matter of personal preference, either yours or your readers’, but the Oxford English Dictionary and Garner’s Modern American Usage both prefer “pleaded.”

A case should not under any circumstances “be plead,” but it might be pled (or pleaded) if necessary.

(I wrote about this seven years ago. I’m probably the only one who remembers, other than Justice Jim Sharp, who in 2012 left a comment threatening to use “plead” as the past tense in a footnote. I seem to have (aided by the authority of OED and GMAU) prevailed on Justice Sharp, who used “pled” in opinions before his comment, and “pleaded” after.)

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (194.0.59.52) .)

2015.3: A Few Thoughts on Trial Advocacy

Mark's Blog: Defending People - Thu, 01/01/2015 - 15:17

People don’t like being manipulated or controlled by other people. They will bridle and resist if they think you are trying to convince them to do something. The harder they think you are trying, the harder they will push back.

But trial advocacy is the practice of convincing people to do things.

So ideally, trial advocacy should be transparent. At the end of the case the jurors, having ruled for your client, should think that they came to their decision without regard to anything that you did. They should believe, when they free your client, that they were compelled by the facts and the law to do so, and that your only role was to bring them those facts and explain to them that law.

If asked in jury selection the jury,1 given the accusation, suggest the possible defenses they can think of; ideally one of these defenses will be your defense. If a panel of laypeople doesn’t think of your defense as a possibility, that defense a stretch.

If you can show the jury how the prosecutor is manipulating them, you’re doing two things: you’re creating resentment in the jurors toward the prosecutor, and you’re creating trust in the jurors toward you. Think about the tricks the prosecutors in your jurisdiction use to get jurors to say the things they want to hear, and in your voir dire (it’s good to go last) pull back the curtain on them.

If you object in voir dire to the prosecutor’s misstatement of the law and the judge sustains the objection, the prosecutor might as well start filling out a dismissal.

You can earn even more trust by showing the jurors (in voir dire) a way in which you are manipulating them. Sometimes I’ll start communicating with the panel non-verbally, and get them to respond non-verbally. Then I’ll make sure to explain to them what I was doing, and why. (If advocacy were a confidence game, this would be the short con.)

Asking jurors post-verdict why they decided what they did is a good way to be lied to. Almost always, the answer is “the evidence just wasn’t there” on a not-guilty verdict and “there was just too much evidence” on a guilty verdict. But they’re not just lying to you; they’re lying to themselves as well.

Here’s the theory on which I try cases: jurors make their decisions early (during opening statements if not during voir dire) and then, throughout trial and beyond, apply all of their cognitive biases to support and rationalize those decisions. For their minds to be changed between opening statement and deliberation, what happens during the testimony has to be so extreme that it shakes the foundation of their beliefs. Less-extreme developments that might challenge their beliefs won’t get through their selection bias.

Most evidence is important to the advocate not because it’s going to change jurors’ minds, but because it is going to give jurors who are already on the advocate’s team evidence when they go into jury selection. Whichever way the split goes when deliberations begin is most likely the way the verdict is going to end up—if the jury is 7–5 for conviction, they’ll likely convict; if they’re 8–4 for acquittal they’ll more likely acquit. That’s not a function of the evidence, but rather of the personalities of the jurors.

Closing argument is the time to show your jurors what ammunition they have, to suggest how they might use it, and to sabotage the prosecutor’s jurors’ ammunition. If you are ahead going in to deliberations, you want your jurors to have plenty of ammunition to get the other jurors to change their minds without losing face. And if you are behind when deliberations begin you want your jurors to have plenty of ammunition to resist the pressure from other jurors to change their minds.

A trial lawyer shouldn’t always be trying cases, any more than a professional fighter should always be fighting. Doing it right requires training and practice and conditioning. Defending a criminal case takes a lot out of a lawyer. Working yourself to exhaustion or worse benefits nobody.

Put on your own oxygen mask first.

Take a vacation.

Get some rest.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (173.255.254.15) .)
  1. I tend to use “jury” and “jury panel” interchangeably in the context of jury selection. The jury is a subgroup of the panel, and will treat the ideas of the panel as its own ideas. The jury will also remember your treatment of the panel, and will respond as though it was your treatment of  the jury. Beware. You can’t mistreat a member of the panel and expect the jury to forgive you because that panel member didn’t make it on the jury. 

2015.1

Mark's Blog: Defending People - Thu, 01/01/2015 - 15:09

I do not write I’m sorry I haven’t written more lately; here’s why; I promise to do better blog posts.

The first part strikes me as narcissistic—as though it matters to the world that any particular blogger hasn’t written more lately; the third part is usually a lie—people who write these posts almost always return to silence shortly afterwards. And I don’t figure readers generally care much about the why of silence. But Scott Greenfield has called me out:

As for those of you who have paid only rare attention to your blawgs, let your posts dwindle, left the heavy lifting to others, this might be a good time to explain why. You know who you are. I know who you are too. Is the genre dead?  Is it not worth the effort?  Are things so wonderful that there is nothing left to write?

So here’s why:

In 2014 I tried three jury trials and won all three. Two of them saved clients from certain deportation and the other saved the client from a felony conviction, a lifetime of sex-offender registration, and a possible prison term. Three jury trials is not a lot for a criminal-defense lawyer in Houston to try, but it’s fifty percent over my yearly average.

I also got part of a statute held unconstitutional. No, check that. Two statutes. Two-hundred-plus people were on probation or in prison because of their convictions for violating Texas’s “dirty-talk-to-a-minor” statute. After I killed that statute on First Amendment grounds in the Court of Criminal Appeals a few of them found their way to me, and I got them out of prison or off probation and off the sex-offender registration list, and started the process of clearing their names.

One of those whose name I am clearing was the first client for whom I had argued (unsuccessfully at the time) the unconstitutionality of the statute. I got to tell the trial judge, “I told you so.”

I took on several civil First Amendment cases on behalf of web publishers and a newspaper, and won.

Throughout this professional triumph, it was the voices of the many clients I haven’t been able to save whispering in my ear, “memento mori.” I have three cases set for jury trial in the first three months of this year, and I’m not going to let the distinct possibility that I will break my short streak by losing one of them stop me from fighting like hell.

I have First Amendment challenges pending against Texas’s Online Impersonation statute, the remainder of its Online Solicitation statute, the remainder of its Improper Photography statute, and its Fraudulent Use of Identifying Information statute. These should all be winners according to U.S. v. Stevens and U.S. v. Alvarez, but I’m not letting the possibility that Texas courts will fail to follow Stevens and Alvarez stop me from prosecuting these appeals, especially since I do it better than the other lawyers I have seen challenging Texas statutes on First Amendment grounds. I may not win, but I have the best chance. And, unlike many in this profession, I am not my record.

I’m debating whether to jump into the fray and try to get the Texas Legislature not to pass any of the unconstitutional speech-restricting statutes that have been proposed, or to lie behind the log.

I taught jury selection, ethics, legal writing, and constitutional law to groups of law students and lawyers across Texas and farther afield, and scheduled more of the same for this year.

Personally, I got my family through 2014 with no surgery, serious illness or death. I couldn’t say the same about the three years before. I reconnected with old friends whom I hadn’t heard from in up to three decades. I took my family on a three-week European vacation, showing the kids a part of the world they hadn’t seen before. I spent some quality time with them, watched my oldest play some lacrosse, started building an AR-15 with my youngest, and spent some time at the shooting range.

I took Jen to Eric Clapton, Eric Taylor, and Greg Trooper concerts. Held the fort while she got through her through the first semester of the University of Houston’s post-baccalaureate accounting program.

I made dinner for my family almost every night. I got my oldest to school almost every day.

I declared victory in my war with TSA, and resumed air travel: to DC (for a reunion of my cohort from the American Embassy School in New Delhi in the mid 80s, Columbus (where I hung out with Scott Greenfield, Brian Tannebaum, Mirriam Seddiq, Jeff Gamso, and Appellate Squawk), Miami (where I celebrated with Brian and his family the release of Brian’s book), and Colorado (where my brother and some high-school buddies took a couple of hikes, broke bread, and drank some good whiskey). Not to mention Beaumont, Lake Charles, Fort Worth, Austin, Odessa, and Round Top. (Next Friday I’m flying to Abilene! Woohoo!)

I also resumed my psychodrama and improv training. I found the synergy between the two, applied it to my advocacy, and taught others to do the same. I went back (after a few-year hiatus) to the National Psychodrama Training Center’s Round Top training, and I attended staff training for TCDLA’s psychodrama-based Fourth Annual Advanced Skills course (but was, unhappily, prevented by circumstances from attending).

I found a new improv home, Station Theater, took two groups of young lawyers there for introductory classes, performed twice before paying audiences, and joined a troupe that will do four shows in the next two months.

I don’t imagine that I’ll be long-remembered. I consider my protégés, and their protégés, my professional legacy. Three of my protégées started taking regular improv classes.

I wrote a few brilliant briefs. Came to terms with the existential loneliness inside my head. Perfected my prime rib and my dark chocolate cake. Drove cool cars. Rode motorcycles. Made new friends. Cried a little. Laughed a lot.

In short, I’m sorry I haven’t written more lately. I’ve been busy living and lawyering. I promise to do better.

Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (174.129.219.71) .)

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