Posted on April 05, 2019 in Uncategorized

American Lawyer Media's Angela Morris, interviewing me for this article, asked me why I am fighting Texas's revenge-porn statute.

Since I'm fighting these cases without getting paid nearly as much money as my time is worth (a roundabout way of saying pr* b*n* without using those words), it's a fair question for a lay audience (by which I mean "one not composed of First Amendment lawyers").

My answer, "Because somebody has to," didn't make it into the article. That's fair. It probably doesn't add much to the lay audience's understanding. After all, knowing nonconsensual publication of intimate visual material is a dick move, at the very least. Why does anyone have to make it any less legally risky?

So here's a better answer: Because someone is going to, and that someone had better be me.

If we all just pretended that dick-move speech could constitutionally be forbidden, if there were no appellate cases on the constitutionality of a speech-restricting statute like section 21.16 of the Texas Penal Code, the constitutionality of that statute could not going to be used to justify restricting non-dick-move speech.

But there is going to be precedent created on the constitutionality of section 21.16.

Some Texas lawyer is going to get hired on a revenge-porn case, and is going to get the bright idea that there is something constitutionally wrong with the statute. And chances are that he's not going to have the free-speech experience, knowledge, or passion that I have.

(If you think it's bragging to assert that I have above-average free-speech knowledge, you don't know how little free-speech law most lawyers know.)

That lawyer will challenge the statute, will get an adverse ruling in the trial court, and will appeal. Or she'll win in the trial court, and the State will appeal.

Then she'll lose in the court of appeals, and won't bother to file a petition for discretionary review, creating bad precedent in her appellate district. The Beaumont Court of Appeals (Texas's Least Competent Appellate Court®) last week in Lopez upheld the constitutionality of the revenge porn statute with a farrago of free-speech non sequiturs, even while the Court of Criminal Appeals has under consideration the same issue, and days after the Court of Criminal Appeals reversed their judgment in Doyal.

Or the lawyer challenging the revenge-porn statute will win in the court of appeals, and the State will file a petition for discretionary review. That's what happened in Jones. The Tyler Court of Appeals held the statute unconstitutional because it covers the publication of intimate visual material without knowledge that the publication is nonconsensual, which is not even a dick move. That's not precedent that we want, because the State will use the implication that dick-move speech may be forbidden to justify forbidding other speech by calling it dick-move speech.

For the lawyer handling her client's case, winning in the court of appeals would count as a win, except that the Court of Criminal Appeals will always grant discretionary review when a court of appeals holds a statute unconstitutional.

So the lawyer is now in the Court of Criminal Appeal. She is facing a better class of lawyer than the Smith County District Attorney's Office was able to provide, and what happens here is going to determine free-speech law statewide, and is going to affect free-speech law nationwide.

And what is going to happen here?

We'll use Jones as an example. Most lawyers would, in the Court of Criminal Appeals, defend the intermediate court of appeals' reasoning, because that's what worked in the court of appeals. But the Tyler Court in Jones came to the right result by the wrong path.

The path that appellate courts take in constitutional-law cases is more important than the result they arrive at. The whole point of free-speech defense, in my mind, is to make sure that the courts follow the path that minimizes state restrictions on speech. If we let them deviate from that path by an inch, there's no telling where they will wind up.

Let's look at the two major arguments that the State is making in Jones. First:

Because the State's nonconsensual-pornography law targets speech of purely private concern... the law is, at most, subject to intermediate scrutiny.

The ground that the State has chosen to fight on here is the level of scrutiny that courts must apply to the statute. In any case, if the Court of Criminal Appeals applies strict scrutiny, the State probably loses. If the court applies intermediate scrutiny, the State probably wins.

No court has ever said that laws that target speech of purely private concern are subject to intermediate scrutiny. In the Supreme Court's free-speech criminal cases, the Court shows no concern for whether the speech is of public or purely private interest.

And where does the State's proposed "purely private concern" rule land us? It allows the State more leeway to regulate anything that we say that is of "purely private concern." Most of the Supreme Court's cases upholding free speech would come out differently under the State's proposed rule, because the socially frowned-upon speech that makes its way to the Supreme Court (dogfighting videos? video games? false claims of valor? pornography? false statements?) is not of public concern.

You can see why prosecutors would love a "purely private concern" rule: it makes the ability to determine whether something is of private or public concern the tyrannical power to censor. This power is virtually unlimited: if the executive can convince the judicial branch that speech is not of public concern (because, for example, it is a blog post critical of them both) the speaker can be imprisoned. Every speaker speaks at risk that the state will declare his speech "not of public concern."

Continuing its fight to rewrite free-speech law to increase state power over speech, the State in Jones argues:

Subsection 21.16(b) is also content-neutral because it is aimed at the ‘secondary effects' of [the speech]...the law's target is not the content of the speech, but the negative consequences....

There are Supreme Court cases in which otherwise-content-based statutes were subjected only to intermediate scrutiny because they addressed the "secondary effects" of the speech. These are zoning cases involving bricks-and-mortar sexually oriented businesses, and the secondary effects are the blight that such businesses are seen as attracting to their neighborhoods (nobody wants their neighborhood to look like the internet). The Court has never applied this doctrine outside that context.

The State in Jones is suggesting that harm to the subject of the speech is an analogous secondary effect. This is jailhouse lawyering at its finest: pick a phrase out of context, and expand it to cover the facts of your case.

If "harm to the subject" were a secondary effect of speech, the State could outlaw all "speech causing negative consequences," and face only intermediate scrutiny. Criminal defamation? Secondary effect on the subject. Dogfighting videos? Secondary effect on the dogs. Stolen valor? Secondary effect on heroes. Violent video games? Secondary effect on society. Investigative reporting? Secondary effect on public officials.

At the same time, in cases involving the harassment statute, Texas Penal Code section 42.07, the State is arguing that it can forbid speech based on its effect on the recipient.

Negative effects on the subject = secondary effects; negative effects on the recipient = essentially intolerable invasions of privacy.

So here's where the rubber meets the road. The Court of Criminal Appeals, sometime soon, will decide whether, in Texas, it will open the door to almost-unlimited government power to silence its critics-power that exists nowhere else under the United States Constitution.

Someone is going to be the one fighting those cases, and unless someone else steps up, it'd better be me.

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