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  • bennettandbennett

2016.001: My Free-Speech Wish List

In the last three years, I convinced Texas courts to hold five statutes unconstitutional under the First Amendment. ((Also one statute under Texas’s separation of powers clause.)) I filed briefs in the Georgia Supreme Court, will argue the unconstitutionality of a Georgia statute next month, ((February 22 in Atlanta. There will be steaks, wine, and hilarity. Mark your calendars.)) and will be assisting Jason Clark in the appeal of another George First Amendment challenge. ((Protip: the State can’t forbid people insulting bus drivers.)) This year, I’d like to hear from:

  1. Alaska lawyers with clients charged under Alaska Stat. 11.61.120(a)(6);

  2. Arkansas lawyers with clients charged under Arkansas Code 5-26-314;

  3. California lawyers with clients charged under California Penal Code section 647(j)(2), 647(j)(3), or 647(j)(4);

  4. Colorado lawyers with clients charged under Colorado Revised Statutes 18-7-107 or 18-7-108;

  5. Delaware lawyers with clients charged under Section 1335 of Title 11 of the Delaware Code;

  6. DC lawyers with clients charged under DC Law 20-275;

  7. Florida lawyers with clients charged under 784.049, Florida Statutes;

  8. Georgia lawyers with clients charged under Georgia Code section 16-11-90;

  9. Hawaii lawyers with clients under Hawaii Revised Statutes 711-1110.9;

  10. Idaho lawyers with clients under Idaho Code 18-6609(2)(b);

  11. Illinois lawyers with clients charged under Illinois Criminal Code Sec. 11-23.5;

  12. Louisiana lawyers with clients charged under R.S. 14:283.2;

  13. Maine lawyers with clients charged under Sec. 1. 17-A MRSA 511-A;

  14. Maryland lawyers with clients charged under Maryland Code Section 3-809;

  15. New Jersey lawyers with clients charged under New Jersey Code. 2C:14-9(c);

  16. Nevada lawyers with clients charged under that state’s new Unlawful Dissemination of Intimate Image statute;

  17. New Mexico lawyers with clients charged under NMSA 30-37A-1;

  18. North Carolina lawyers with clients charged under General Statutes Section 14-190.5A;

  19. North Dakota lawyers with clients charged under Section 12.1-17-07-2 of the North Dakota Century Code;

  20. Oregon lawyers with clients charged under Chapter 379, Section 1 of the Undesignated Enactments to the Oregon Revised Statutes;

  21. Pennsylvania lawyers with clients charged under Title 18 Pennsylvania Consolidated Statutes Section 3131;

  22. Texas lawyers with clients charged under Texas Penal Code Section 21.16 (or 21.15, or myriad others);

  23. Utah lawyers with clients charged under Utah Code 76-5b-203;

  24. Vermont lawyers with clients charged under Sec. 2. 13 VSA Sec 2606;

  25. Virginia lawyers with clients charged under Section 18.2-386.2 of the Code of Virginia;

  26. Washington lawyers with clients charged under Washington’s new Wrongful Disclosure of Intimate Images law; and

  27. Wisconsin lawyers with clients charged under Code of Wisconsin 942.09.

Here’s what those lawyers get for calling me: we’ll discuss the best attack on the law, both substantively and procedurally. I’ll share what I know about the substance, and I’ll get up to speed on their states’ procedure, so that together we can choose the best avenue of attack (in Texas, it’s a pretrial application for writ of habeas corpus; in Georgia, a demurrer). We’ll draw up the papers together. I’ll prep you to argue the case in the trial court. If there is an appeal from the trial court’s ruling, you’ll get me admitted pro hac vice, we will write the brief together, and I will argue the case in the appellate courts. This will cost you and your client nothing but travel expenses and pro hac vice admission fees. In other words, your client gets tens of thousands of dollars worth of First Amendment appellate expertise for free. I’m doing the thing for the sheer joy of the doing. ((Don’t tell my wife.))

Will we win? I’m betting on it. Many of the Texas cases to which I’ve added my name have been dismissed by the State—so many that it has become frustrating to me that the State can evade the First Amendment fight with a determined litigator and continue prosecuting those schmoes who have lawyers less resolute.

Passing those statutes, their proponents are going to find, was child’s play compared to defending them in court. All of those statutes are presumptively unconstitutional. ((Content-based restrictions on speech (which includes expressive conduct) are presumptively unconstitutional. If you wonder whether a statute is presumptively unconstitutional, ask yourself: do you have to look at the content of a communication to decide whether the law has been violated? If so, the statute is presumptively unconstitutional.)) The defender of one of these statutes will have the burden of showing a court either a) that all of the speech restricted by the statute falls into some category of unprotected speech; or b) that the protected speech restricted by the statute is not real and substantial, in relation to the statute’s legitimate reach.

Now that even law profs dare join actual lawyers in proclaiming that the emperor has no clothes, that these revenge-porn statutes are unconstitutional, it won’t be long before courts catch on and disassemble revenge-porn statutes. Even legislatures will figure out, eventually, that it makes no sense to pass a statute that the courts are going to kill a year or two later.

The era of the revenge-porn statute, in other words, is coming to a close, and with it the idea of constitution-be-damned “cyber civil rights.” Join me on the front lines of that fight.


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