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Mark's Blog: Defending People
the tao of criminal-defense trial lawyering
Updated: 53 min 24 sec ago
I noticed this at the bottom of an email from a lawyer on a First Amendment civil case (he’s suing, I’m defending):
NOTICE OF DISCLAIMERS & CONTRACTUAL AGREEMENT NOT TO REMOVE DISCLAIMERS:
This communication and any files or attachments transmitted with it are confidential, may be legally privileged, and are intended solely for the use of the individual or entity to which they are addressed. Because this type of communication may not be secure, can be made spontaneously, and/or is frequently treated informally, I do not accept any responsibility or duty (other than that owned in the attorney-client relationship) for the contents of such communication. Simply, you are put on notice that I do not guarantee that this communication has any accuracy whatsoever; being on such notice and for the consideration stated below, you contractually agree that I am not liable for any damage connected with this communication whether it is actual, contractual, compensatory, restitutionary, punitive, imaginary, etc. Make a formal request in writing via certified mail to the above address if this communication needs to be verified. Please notify me immediately if you have received this communication by mistake and delete it from your system. If you are not the intended recipient you are notified that altering, disclosing, copying, distributing, or taking any action in reliance on the contents of this communication is strictly prohibited and may be a criminal offense. If you are the intended recipient or receive this communication intentionally by the intended recipient, subject to Texas Rule of Evidence (including rule 408) you are granted express consent to disclose, copy, and/or distribute this communication. In return, you agree to not alter it, for example, by removing any of these disclaimers. In violation thereof, you agree to (1) be personally liable for a minimal of $15,000 in liquidated damages, reasonable attorney fees, and court costs in collecting these damages; and (2) Texas being the appropriate jurisdiction, that its laws prevail, and Harris County being the appropriate venue. The Internal Revenue Service rules require that I advise you that the tax advice, if any, contained in this message was not intended or written to be used by you, and cannot be used by you, for the purposes of (1) avoiding penalties under the Internal Revenue Code; or (2) promoting, marketing or recommending to an other party any transaction or matter addressed herein.
Pretentious civil-lawyer stupidity makes my brain hurt.
(See also.)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 (220.127.116.11) .)
The original version of this post included two lawyers who had cried “victim.” I identified neither; only a very small group (six people) knew who both were; those six already knew my opinion.
While I had not identified him and had explicitly disclaimed calling him a sociopath (he has mental-health problems, but they undisputably do not include a lack of conscience), one of them recognized himself and incorrectly concluded that I was calling him a sociopath. When he nagged me about it, in the interest of peace I very reluctantly took the unprecedented step of removing the reference to him—the other example of victim-stance behavior was sufficient.
Unfortunately, he took my gesture of peace as a sign of weakness, and began publicly demanding a public apology (after privately threatening violence, motherfucking me, and frightening my office staff). He then also appointed himself defender of the other lawyer’s honor. In paroxysms of impotent rage he lashed out on Twitter and in comments here.
I removed his comments here because I didn’t think his name needed to be connected to this post; I have since vacillated on that, and on whether to restore the original text. Republishing this lawyer’s words is the worst thing that I can imagine doing to him—sometimes people sabotage themselves, often without knowing it; it’s not my job to help them.
Instead I’ve cut off contact with him, following Rule One. I have blocked his Twitter account and killfiled his emails—extreme and rare action that I only take for those who are a persistent net negative in my life.
If he continues to insist on injecting himself into my existence, I may have to find a different tack.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 (18.104.22.168) .)
After reading Martha Stout’s 2006 The Sociopath Next Door recently I’ve been thinking a great deal about sociopaths. Stout contends that four percent of the U.S. population are sociopaths, people without conscience, which Stout describes as “an intervening sense of obligation based in our emotional attachment to others.” Here‘s a snippet from Stout’s book describing some of the positions that sociopaths might enjoy, including this:
But you do enjoy jobs that afford you a certain undersupervised control over a few individuals or small groups, preferably people and groups who are relatively helpless or in some way vulnerable. You are a teacher or a psychotherapist, a divorce lawyer or a high school coach. Or maybe you are a consultant of some kind, a broker or a gallery owner or a human services director. Or maybe you do not have a paid position and are instead the president of your condominium association, or a volunteer hospital worker, or a parent. Whatever your job, you manipulate and bully the people who are under your thumb, as often and as outrageously as you can without getting fired or held accountable. You do this for its own sake, even when it serves no purpose except to give you a thrill. Making people jump means you have power – or this is the way you see it – and bullying provides you with an adrenaline rush. It is fun.
Could this describe a misdemeanor judge you know? A prosecutor? If you believe that four of every ninety-nine people around you are sociopaths, you start seeing signs of sociopathy everywhere.
The hallmark of a sociopath, says Stout, is feigned victimhood. “The most reliable sign, the most universal behavior of unscrupulous people is not directed, as one might imagine, at our fearfulness. It is, perversely, an appeal to our sympathy.”
I have noted before the ascendancy of victimocracy, in which victimhood is esteemed even above merit and victims are given special authority to determine the course of the state. I was reminded of the victimocracy recently by communications by members of the board of a criminal-defense lawyers’ association.
Two members of the board separately did things that didn’t serve the interests of the organization. Other members called them out; the criticism was not gentle, but it was fair. Those who had been criticized went into victim mode: they had been “attacked,” “insulted,” “disrespected.” They inaccurately described things that others had said to make them seem like attacks. Both described the criticism as “bullying.” One had “never been so insulted” as by the criticism.
Why would these people—these criminal-defense lawyers communicating with other criminal-defense lawyers—cry “victim”? Because they think it’ll work. They’ll be pitied, their transgressions will be ignored, they’ll get their way.
The pity play or attempt to appeal to the sympathy of others was also addressed in research conducted by the Minnesota Department of Corrections and The Hazelden Foundation (2002). There, researchers concluded that criminal thinkers most often attempt to control others by portraying themselves as a victim, turning to fear tactics only when the victim stance fails to get them what they want.
The act of eliciting pity from another unequivocally makes the elicitor something to be pitied, a victim, per se. It is human nature to aid the pitied. Hence, the pity play, or victim stance, stands to get the Sociopath what he or she wants easily and without being found out as a bad guy. This is manipulation.
Your Conscience, the Sociopath’s Weapon of Choice, Psychology Today.
I’m not saying that these two lawyers are sociopaths—not everyone who takes a victim stance is a sociopath—but their play for pity had me reflecting on how, with our solicitude for the feelings of victims, we have created an amiable playground for sociopaths.
We criminal-defense lawyers are not generally aligned with victims. Our clients are usually getting screwed by victimocracy. If a pity play could work in the board of directors of a criminal-defense lawyers’ association, it could work anywhere. And anywhere a pity play works a sociopath will make a pity play.
The more power we give victims, the more power we give sociopaths. We don’t want to give sociopaths any more power than Texas voters already give them. But we can’t be pitiless—pity serves a valuable social function, and if we were pitiless, we’d be sociopaths ourselves.
So what’s the solution? I think it is to act like criminal-defense lawyers: be kind to real victims, but question the stories of those who claim to be victims. Like those of the board members wanting to be victims, sociopaths’ stories won’t stand up to scrutiny.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 (22.214.171.124) .)
I had filed a pretrial writ of habeas corpus challenging Texas’s Online Impersonation statute on First Amendment grounds. The prosecutor agreed with me off the record, dismissed the case, and instead filed a (less serious) Fraudulent Use of Identifying Information charge. Also, the Harris County DA’s Office flagged the Online Impersonation statute in its charge bank as “possibly unconstitutional.”
What is wrong with these people? Doesn’t Devon Anderson have an obligation to defend Texas’s penal statutes against constitutional attacks? Do I have to notify the Attorney General to get some opposition?
It looks as though I’ll have to go to some other county to get an appealable opinion upholding or striking the Online Impersonation statute.
But the prosecutor’s refiling the charge as Fraudulent Use of Identifying Information had me looking at that statute with a critical First Amendment eye:
A person commits an offense if the person … uses identifying information of another person without the other person’s consent and with intent to harm … another.
“Use” is not defined.
“Identifying information” means information that alone or in conjunction with other information identifies an individual, including an individual’s:
(A) name, social security number, date of birth, and government-issued identification number;
(B) unique biometric data, including the individual’s fingerprint, voice print, and retina or iris image;
(C) unique electronic identification number, address, and routing code, financial institution account number; and
(D) telecommunication identifying information or access device.
“Harm” is not defined.
So if I use—by writing—a person’s identifying information—his name—without his consent with the intent to harm—by embarrassing—him, I commit a felony in Texas.
Hmm. That can’t possibly be right.
The first writ of habeas corpus will be filed tomorrow in Harris County, followed next week by one in Fort Bend County. I’m also looking for online impersonation cases in other counties to file writs on. Some prosecutor somewhere has got to take the bait.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 (126.96.36.199) .)
Harris County Assistant PD Nick Hughes had a huge win in the First Court of Appeals on Schuster v. State.
Mr. Schuster had pled guilty to online solicitation of a minor by explicit communication, enhanced with prior felony convictions, and been sentenced to forty years in prison while Ex Parte Lo was pending. Hughes appealed, arguing that the online-solicitation-by-explicit-communication statute was unconstitutional (the issue in Lo).
The State argued (as in this hypothetical) that the Court of Criminal Appeals’ decision in Karenev v. State barred relief. Karenev held that the right not to be convicted under an unconstitutional statute was a right that could be forfeited, and that Mr. Karenev had forfeited that right.
That Mr. Schuster not receive relief from his 40-year sentence for an unconstitutional conviction is the result dictated by Karenev—a forfeited right is forfeited. It is also an absurd result. The First Court of Appeals resolved the absurdity by carving out an exception to the forfeiture of rights in Karenev: “the rationale for the Karenev rule—the presumption that a statute is constitutional—does not apply to this case.” Because Section 33.021(b) had been held unconstitutional before Mr. Schuster’s appeal, Mr. Schuster could raise the unconstitutionality on appeal.
The Court of Criminal Appeals invented its fundamental holding in Karenev—that the right to challenge the constitutionality of a statute could be forfeited—from whole cloth. No American court outside Texas has ever held the same. Other courts have not adopted Karenev‘s fundamental holding because that fundamental holding is wrong. If a statute is void, a document purporting to charge a defendant with a violation of that statute does not charge a crime, is not an indictment, and does not vest the trial court with jurisdiction. Instead of burning Karenev to the ground, the Court of Appeals carved out a narrow exception—the best they could do with stare decisis.
But even the reasoning of the Court of Appeals can be taken much further in the First Amendment context: since a content-restricting statute is presumed to be unconstitutional under the First Amendment, the holding of Karenev, as interpreted by Schuster, does not apply to statutes that restrict speech based on its content—statutes like Texas’s improper-photography statute, its online-impersonation statute, and the balance of Texas’s online-solicitation statute.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 (188.8.131.52) .)
I have tried a bunch of cases, and pled more. Win or lose, clients whose cases I’ve tried have almost universally been happy afterwards. Clients whose cases I’ve pled are often unhappy afterwards.
The client who pleaded guilty has chosen a plea over a trial, and has agreed to the result; he should be happy. The client who went to trial may have been forced to trial (the system’s default condition) by the lack of a meaningful plea offer, and—if he loses—didn’t get the result he hoped for.
So why is the trial client happier than the plea client?
I think it’s because most people have never seen someone fighting for them. The trial client has seen it, and that’s a new experience to him, he likes it. It is liberating.
Even the career criminal has probably never seen someone fighting for him. Most cases plead and most lawyers, most of the time, just don’t fight. Not, at least, in any way that the client can see.
But this thing for which our clients thank us, win or lose—showing them that there is someone will fight for them when they cannot fight for themselves—is more than just our job; it is a sacred duty. Do it not just for your client, and not for yourself. Do it for freedom.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 (184.108.40.206) .)
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 (220.127.116.11) .)
A caller today said, “I heard that you got part of the Online Solicitation of a Minor statute held unconstitutional, but I know that decision doesn’t apply to distributing sexually explicit material to minors.” I asked him where he got that idea, and he pointed me to this on Dallas lawyer Everett Newton’s website:
Notably, two other sections of the online solicitation of a minor statute remain good law, and outline conduct for which you can still be lawfully prosecuted. Hence, under this statute, you can still be charged with online solicitation of a minor for either: 1)distributing sexually explicit material to a minor, OR 2)soliciting a minor online to meet for sex.
It’s ignorant twaddle. “Distributing sexually explicit material to a minor” is protected speech; it falls under the portion of the statute that the Court of Criminal Appeals held unconstitutional.
Truth is, of course, that Everett probably didn’t write the ignorant twaddle that has his name on it. The author confuses the Texas Court of Criminal Appeals (which held the Online Solicitation statute unconstitutional) with the Texas Supreme Court (which did not). This is not a mistake that a Texas lawyer is likely to make. So either Everett is even more cretinous than he looks…
…or he has outsourced his marketing, allowing someone else to publish blog posts under his name. The former is hard to imagine, so my bet is that Everett has outsourced his marketing. Which means that he gets held responsible for the substance—the content published on his behalf (outsource your marketing, outsource your reputation)—as well as for the procedure—the choice to pay someone even more moronic than him to publish stuff on his behalf.
To advertise himself, Everett Newton gives bad advice. That makes me unhappy.
So here you go, Everett. Reap what you sow.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 (18.104.22.168) .)
Five years ago, in February 2009 I filed an application for writ of habeas corpus on behalf of a guy—we’ll call him Mr. Doe—who had been on probation since 2006 for online solicitation of a child under Section 33.021(b) of the Texas Penal Code, the “explicit communication” statute. I hadn’t represented Mr. Doe at trial, and his trial counsel hadn’t argued that the statute was unconstitutional. (This was a Perverted Justice case, which never would be filed today.)
The trial judge denied habeas relief, so I appealed. The Fourteenth Court of Appeals affirmed the denial of habeas relief in July 2010, so I filed a Petition for Discretionary Review with a single ground for review:
The Fourteenth Court of Appeals erred when it held that the constitutionality of a criminal law cannot be first raised on habeas corpus. If a penal statute unconstitutionally criminalizes protected speech, will a conviction under that law stand forever if not objected to at trial?
The Texas Court of Criminal Appeals denied discretionary review. So Mr. Jennings was stuck finishing his probation (until 2011), registering as a sex offender (until 2021) and branded as a convicted felon (for life).Or so it appeared.
In September 2010 I filed a pretrial writ of habeas corpus on behalf of a defendant—call him Mr. Roe—who had been charged with, but not convicted of violating 33.021(b). The trial court denied relief, so I appealed to the First Court of Appeals. The First Court of Appeals affirmed, so I filed a petition for discretionary review. The Court of Criminal Appeals granted PDR, heard argument, and in October 2013 reversed the judgment of the First Court of Appeals, holding 33.021(b) unconstitutional.
(Mr. Roe’s was not the first pretrial writ of habeas corpus I had filed attacking 33.021(b). In September 2009 Herb Ritchie, then judge of the 337th District Court, granted relief. The State failed to appeal that ruling.)
Today Mr. Doe got to go back to court on another habeas, again based on the unconstitutionality of Section 33.021(b), conclusively established in Mr. Roe’s case. This time the State agreed to relief, and the trial court—the same judge who had denied relief in 2009—signed an order dismissing Mr. Doe’s case.
Mr. Doe can never get back his five years on probation or the rubbishing of his good name, but with that order, I’ll get him off the sex-offender registry, I’ll get his records expunged—he can deny that he was ever even arrested—and I may recover a portion of the thousands of dollars in fines, fees, and court costs that he had to pay as a result of his conviction for violating a void statute.
The icing on the cake for me? As he was signing the order, the judge said to me, “you can’t say ‘I told you so’ because I didn’t get a chance to rule on this before.”
“Yes you did, judge.
“I told you so.”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 (22.214.171.124) .)
Emanuel Dominguez’s fiancée, Jessica Cavender—a Marine like Emmanuel—was nowhere near when, according to this account, “Emmanuel Dominguez began backing away with his hands in the air when [Christopher Ernest] Braughton opened fire, shooting him once in the torso.”
Now Christopher Ernest Braughton is charged with murdering Emmanuel Dominguez (Indictment—PDF), and is set for trial August 11, 2014.
So why is Christopher Ernest Braughton suing Jessica Cavender, the fiancée of the Marine he killed, for more than $200,000 (Original Petition—PDF)?
Here are the allegations of the lawsuit:
The Plaintiff was damaged as a result of the actions of the Defendant
CHRISTOPHER BROUGHTON’S CLAIM FOR NEGLIGENCE
Defendant was negligent
DAMAGES FOR PLAINTIFF, CHRISTOPHER BROUGHTON
Plaintiff, CHRISTOPHER BROUGHTON, was caused to suffer , and to incur the following damages:
- Actual Damages
- Special Damages.
A lawsuit is supposed to give the defendant notice of the allegations against him. This does not do so. It makes no sense at all until you look at the signature block at the end of the Plaintiff’s Original Petition:
M.T. SANDOVAL & ASSOCIATES
By: /S/ Mark Sandoval____________ M.T. Sandoval
Texas Bar No. 17624500
P.O. BOX 1187
HOUSTON, TEXAS 77251
Tel. (713) 654-1050
Email: MTSATTYTX@AOL.COM WWW. MTSANDOVAL.COM Attorney for Plaintiff CHRISTOPHER BROUGHTON
I wrote about Sandoval here in 2008 after he filed a lawsuit on behalf of a criminal defendant, Elizabeth Shelton (Elizabeth Shelton Indictment—PDF), against the people whose car she had rear-ended causing the death of her boyfriend, Matthew McNiece. At the time Sandoval represented the family of Mr. McNiece as well. (Sandoval then nonsuited that case. Elizabeth Shelton Nonsuit. This case, Sandoval may not get out of so easily: I’m reliably informed that Cavender will be countersuing for intentional infliction of emotional distress.)
It gets even more interesting: the father of Elizabeth Shelton, Pat Shelton, who used to give Sandoval juvenile appointments when Shelton was a juvenile court judge, is Sandoval’s cocounsel on Christopher Ernest Braughton’s murder case. Cozy.
(Notice that Sandoval misspelled Mr. Braughton’s name—as “Broughton”—when he filed the current lawsuit. It may have been inadvertent, but that way Braughton’s name is less likely to turn up in searches. In 2008 I noted, “Her boyfriend, Matthew McNeice (the Chronicle renders it McNiece, but the District Clerk’s civil records have McNeice), is killed in the crash.” It appears that Sandoval misspelled the McNieces’ name in that civil suit as well. Cute.)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 (126.96.36.199) .)
Ronald Thompson was arrested last September for taking photographs of swimsuit-clad children at Sea World in San Antonio. He was charged with violating Texas’s improper photography statute:
A person commits an offense if the person:
(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room:
(A) without the other person’s consent; and
(B) with intent to arouse or gratify the sexual desire of any person….
He hired Don Flanary III, who made an as-written overbreadth challenge to the statute in an application for writ of habeas corpus. The San Antonio Court of Appeals found that the statute was content-neutral, but still found it unconstitutional under intermediate scrutiny.
Last week I went to the Court of Criminal Appeals to hear oral arguments on discretionary review. Don argued the case for Mr. Thompson, and he gave some of his time to Eugene Volokh to argue on behalf of amicus Reporters Committee for Freedom of the Press. (Protip: the interests of amicus are not always aligned with the interests of your client. Be wary of ceding argument time.)
The State argued that it has an interest in protecting people from being nonconsensual objects of sexual desire—a foolish notion. In aid of its argument, the State argued that the “consent” element saves the statute from overbreadth because “consent” is defined broadly enough in Section 1.07(a)(11) of the Penal Code to cover photos taken in public of people’s publicly exposed parts. Everyone who appears in public, the argument went, consents to pictures being taken of those parts of her body that are exposed to the public; the statute is aimed only at upskirt and other surreptitious photographs, and therefore is not overly broad.
(A judicial interpretation narrowing a statute can save it from First Amendment overbreadth. This is based on the legal fiction that people consider Court of Criminal Appeals opinions in deciding how to express themselves. To the contrary, people considering taking photos in public don’t review Court of Criminal Appeals opinions to decide how to frame their photos. If an overbroad statute has a chilling effect, a Court of Criminal Appeals opinion won’t diminish that effect.)
The State’s narrowing argument in Thompson’s case stinks. While the facts of the case are not legally relevant to the as-written challenge, if the State had interpreted Section 1.07(a)(11) as the prosecutor urged at the Court of Criminal Appeals, Mr. Thompson would never have been charged—the subjects of his photographs were in public. It’s disingenuous—arguably unethical—for the State to argue a theory of the law on appeal under which the State would never have charged the defendant in the first place. If the State had follow its proposed rule, the defendant would never have been charged, never had to go to the expense and trouble of hiring Don to defend him through three courts.
The Court of Criminal Appeals could adopt the State’s proposed narrowing of the law and find that the statute does not forbid taking photos of people’s exposed parts in public because people with parts exposed in public consent, as a matter of law, to those parts being photographed. (Part of Volokh’s argument was that this could save the statute from overbreadth, but might cause a vagueness problem.) If the Court of Criminal Appeals does this, Mr. Thompson wins. Bexar County loses, and could lose big—since, according to the State’s own logic, Mr. Thompson should never have been prosecuted, Bexar County might find itself writing him a large check after he files his Section 1983 suit.There are two ways to violate Texas’s Improper Photography statute—by making an image, (photograph or by videotape or other electronic means record) or by sharing an image (broadcast or transmit).
If the Court of Criminal Appeals strikes down the making portion of the statute, the sharing portion falls as well. If, however, the court upholds the making portion in Thompson as the State has urged, the sharing portion is still subject to First Amendment challenge—consent to be photographed is not the same as consent for those photographs to be shared.
From the San Antonio Court of Appeals’ opinion in Ex Parte Thompson (PDF), which is before the Texas Court of Criminal Appeals on discretionary review (and will be argued tomorrow morning by Don Flanary III of San Antonio and Eugene Volokh of L.A.):
[W]e hold the plain language of the subsection 21.15(b)(1) does not “limit” or “restrict” the substantive content of photographs—in other words, it does not favor one type of photograph over another. See Turner, 512 U.S. at 642. Rather, the statute limits speech by imposing time, place, and manner restrictions that are unrelated to content. See Clark, 468 U.S. at 293. Accordingly, we hold subsection 21.15(b)(1) regulates speech in a content-neutral manner, requiring intermediate scrutiny. See id.
Here’s the gist of Texas Penal Code Section 21.15(b)(1):
A person commits an offense if the person photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room….
The San Antonio Court got the question of whether 21.15 is content-based or content-neutral wrong. (It matters because a content-based statute has to pass stricter scrutiny than a content-neutral one; the San Antonio Court found that 21.15 did not even pass the lesser scrutiny.)
If it is necessary to look at the content of the speech in question to decide if the speaker violated the law, then the regulation is content-based. Gresham v. Peterson, 225 F.3d 899, 905 (7th Cir. 2000).
With Section 21.15, it is necessary to look at the content of the speech (the photograph): if it contains “a visual image of another,” that is, a picture of a person, it can infringe the statute; if it does not contain a picture of a person, it cannot.
For the convenience of courts of appeals for whom this concept might be too complex, I offer the Grumpy Cat Rule: If the statute favors images of grumpy cats over other images, its regulation of speech is content-based.
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 (188.8.131.52) .)