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A confidante describes him thus:
I think [he] knew that he had God-given talents that were extraordinary. He knows exactly how smart he is.… He knows how perceptive he is. He knows what a good reader of people he is. And he knows that he has the ability — the extraordinary, uncanny ability — to take a thousand different perspectives, digest them and make sense out of them, and I think that he has never really been challenged intellectually.… So what I sensed in him was not just a restless spirit but somebody with such extraordinary talents that had to be really taxed in order for him to be happy.… He’s been bored to death his whole life. He’s just too talented to do what ordinary people do.
He’s not as smart as he thinks he is—smart people don’t get bored.
He’s narcissistic, seeing himself as “too talented to do what ordinary people do.”
Anyone who knows exactly how smart, how perceptive, what a good reader of people he is is suffers from the Dunning-Kruger Effect; competency is inversely proportional to certainty.
He’s got a messiah complex, likely to the point of sociopathy—the sociopath expects the world to do things for him (like challenge him intellectually) rather than doing them for himself.
Most importantly, he has surrounded himself with people who tell him these lovely stories about himself.
All in all, by his confidante’s description, how willing would you be to trust him with your credit cards? With your kids? With your dog?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) .)
California Highway Patrol thug pointing rifle at innocent man. (AP Photo/The Sacramento Bee, Randall Benton, via KTVU)
It sure looks to me like that cop is pointing a rifle at the guy in the Mustang. Which he shouldn’t be doing.
I thought he was doing it because he’s scared, but the more I think about it, the more it seems it’s all for show: an aggravated assault to impress the motorist or the photographer. The cop has no reason to think the driver might have evil intent.
Why do I say that?
The cop would never get that close to the driver with his rifle if he though the guy in the Mustang might have evil intent, because action beats reaction. Before the cop could get his finger on the trigger, a guy with evil intent could certainly deflect the muzzle of the rifle away from himself. He could probably grab the barrel and pull it into the car (with the cop attached, it appears, by the sling around his neck). He might even be able to get the the muzzle pointed at the belly of the Pillsbury Doughcop on the other side, all before the cop could pull the trigger.
It’s too bad the press doesn’t publish the names of cops behaving badly because what we have here is the wrong tool for the job, using the wrong tool for the job.
(H/T Mike Stuart.)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) .)
Here’s what Marc Randazza said to an academic about her proposed revenge-porn statute:
While you’re sitting on your ass “teaching people how to think like a lawyer,” I’m actually out front on this issue, *litigating* these kinds of cases.
I think your law is fucking idiotic. Absolutely. Fucking. Idiotic.
Nothing but the academic circle jerk and a few vote-starved legislators could possibly consider *criminalizing* the publication of photographs to be tolerable. So go write another law review article about something else you have no first-hand experience about, and leave the legal work to the big boys and girls.
I’m neither part of the academic circle-jerk nor a vote-starved legislature, and I think that criminalizing some publication of photographs is tolerable (as some publication—obscenity, child porn—is already criminalized) as long as it doesn’t narrow First-Amendment protections.1
Single-issue advocates usually write bad laws. So we can probably do better than the true believers at drafting a criminal revenge-porn statute that might pass First-Amendment muster. Our advantage is the ability to look at both sides of the issue and meet the arguments against constitutionality. Not having our chances of tenure dependent on our success, we are not paralyzed by fear of failure. Not paralyzed by fear of failure, we can avoid the activists’ six major mistakes: Overstate your case. Misstate the law. Make handwaving generalizations. Demonize disagreement. Use false analogies. Lie.
Let’s take a crack at it, shall we?
The evil that we’re trying to eliminate is people posting nude or explicit images of former lovers online without the former lovers’ consent. At the very least, when Lucrezia shares a nude selfie with Giovanni, we want Giovanni to risk conviction if he posts the image on a revenge porn website with Lucrezia’s address and phone number to humiliate Lucrezia.
The First-Amendment problem we face is that “posting nude or explicit images of former lovers online” is speech; a statute focused on such posting is a content-based regulation of speech; content-based regulations of speech are presumed to be invalid (that is, speech is presumed to be protected); and the Supreme Court in U.S. v. Stevens expressly rejected a balancing test for content-based criminal laws, instead applying a categorical test.
While UH law prof Josh Blackman has said that “Invariably, the court will balance interests in First Amendment jurisprudence” and UCLA law prof Eugene Volokh has suggested that the current definition of obscenity might be expanded to encompass revenge porn, we want our statute to be constitutional here and now, rather than in some speculative world in which the Supreme Court retreats from U.S. v. Stevens or rewrites the test for obscenity.
A scattershot approach will not work. The categories of unprotected speech that the Supreme Court has recognized are narrowly drawn. If a criminal statute arguably forbids both fighting words and obscenity, then it likely forbids a great deal of speech that is neither, and therefore fails constitutional muster. We want our statute to cover only speech that fits in one of the already-recognized categories of unprotected speech. Let’s pick a category, and go to work.
I pick obscenity. While the proposed statute that I was analyzing here would not survive a First-Amendment challenge, and its author’s justifications for it are undeveloped and petulant, my analysis of the idea that sexual or nude images published nonconsensually could ipso facto be obscenity was incomplete and, I suspect, ultimately wrong. At the heart of obscenity are community standards, and a community might well find a particular revenge-porn publication obscene.
For a work to be obscene, it must: appeal to prurient interests; depict sexual conduct in a patently offensive way; and lack serious value. The test refers to “a work,” so you might assume that the test for obscenity relates to inherent qualities of the work. But what is obscene when distributed to children is not necessarily obscene when distributed to adults; what is obscene in Ogden is not necessarily obscene in San Francisco; and as the Court said in 1996 in Denver Area Educational Telecommunications Consortium, Inc. v. F.C.C.:
[W]hat is “patently offensive” depends in part on context (the kind of program on which it appears), degree (not “an occasional expletive”), and time of broadcast (a “pig” is offensive in “the parlor” but not the “barnyard”).
Since obscenity is context-sensitive, an image that is not obscene when Lucrezia publishes it to Giovanni might well be part of an obscene publication when Giovanni distributes it in a different context.
For example, publishing Lucrezia’s selfie next to her employer’s name and phone number might be more offensive to the community2 than just publishing the picture but not identifying her.
It might be argued that if Giovanni’s republication of Lucrezia’s image is obscene, current obscenity law (for example, Texas Penal Code Section 43.23) already forbids it. But if we’re attacking revenge porn as the particular evil that it is, we might not want to simply rely on obscenity laws. Since Lucrezia’s image cannot be presumed to be inherently obscene, we want the jury to consider at least the lack of consent, how Giovanni distributed, and perhaps even why Giovanni distributed it in deciding whether it is patently offensive.
If we want our statute upheld as a constitutional restriction on obscenity, we can’t simply stamp our feet and declare:
Disclosing pictures and videos that expose an individual’s genitals or reveal an individual engaging in a sexual act without that individual’s consent easily qualifies as a “patently offensive representation” of sexual conduct. Such material moreover offers no “serious literary, artistic, political, or scientific value.”
Whether the publication is patently offensive, and whether it has serious value, are questions that will have to be left to the jury if our statute is to be upheld on obscenity grounds.
A challenge to our statute will be an “as written” challenge, so the appellate courts will not be outraged by a record of Giovanni’s bad acts and the harm he caused Lucrezia. To meet that challenge, we have to define the crime so that there is little chance that someone whose distribution of images was not obscene will be convicted.
Here we necessarily run into community standards: while the whole idea of revenge porn is offensive to us, a jury of twelve might not find a particular publication patently offensive. This is a risk that we have to take—for our statute to be upheld under anything resembling current obscenity law, we have to be willing to bow to the standards of the community, which means making the image’s violation of those standards an element of the offense.
So our proposed might have a basic framework something like this:
A person who intentionally distributes a photograph of another without the other’s express consent commits an offense if:
- The average person, applying contemporary community standards, would find, taking into account the manner of its distribution and the lack of consent, that taken as a whole the image appeals to the prurient interest in sex;
- Taking into account the manner of its distribution and the lack of consent, the image depicts or describes:
- Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, including sexual intercourse, sodomy, and sexual bestiality; or
- Patently offensive representations or descriptions of masturbation, excretory functions, sadism, masochism, lewd exhibition of the genitals, the male or female genitals in a state of sexual stimulation or arousal, covered male genitals in a discernibly turgid state or a device designed and marketed as useful primarily for stimulation of the human genital organs; and
- Taking into account the manner of its distribution and the lack of consent, the image, taken as a whole, lacks serious literary, artistic, political, and scientific value.
Nathaniel Burney may well have something to say about the required culpable mental states—intent for the posting, but strict liability for the lack of express consent.
In the First-Amendment arena, we may run into the problem of the statute overturned by the Court in R.A.V. v. City of St. Paul: the State is not permitted to select, based on its content, some unprotected speech to forbid and some to permit. We could resolve this by removing the non-obscenity content criterion, that is, by forbidding the obscenely nonconsensual distribution of any material, rather than only of an image of another.
The lack of consent would, I think, be a manner-and-means restriction, rather than a content restriction, but the problem, if the statute is not content-based, is whose consent? We could remove the consent element, but then what we would have is an obscenity statute, with “manner of distribution” specified as a factor in the statute. I don’t see any obvious problems with this—a legislature could direct juries to take into account particular details of the context when deciding whether a work is patently offensive, provided that it left the decision up to the jury.
But if lack of consent is an important element of our criminalization of revenge porn—and it is, for we are trying to protect Lucrezia from Giovanni, not to protect Lucrezia from herself—we may have a patently problem.
In English “patently” means “clearly; without doubt,” but in law “patently” (pronounced pay’-tent-ly) means “appearing on its face,” the opposite of “latently.”
If “patently” in “patently offensive” has its common meaning, then the lack of consent (which is not necessarily shown on the face of the publication—Giovanni might even claim when distributing the image that Lucrezia asked him to share it) may be considered by the jury in determining whether the publication is patently offensive.
But if the “patently” in “patently offensive” has its legal meaning, then unless Lucrezia’s lack of consent appears on the face of the publication it is not a factor that a jury should consider in deciding whether the publication is obscene.
The Supreme Court hasn’t given any explicit guidance on which meaning “patently” has. On the one hand, the Supreme Court, being crowded with law geeks, generally uses terms in their legal sense; on the other, the Supreme Court has approved laws that allow juries of laypeople to decide what is “patently offensive” without defining “patently.”
The Supreme Court has described the thing that must be patently offensive as “a work” (rather than “an act of publication”), but it has made it clear that circumstances extraneous to the work (context and time of broadcast) are relevant to the determination.
So this statute has the advantage over others proposed of fitting into the current framework of First-Amendment law. An appellate court finding it constitutional might be misguessing what the Supreme Court means by “patently,” but it wouldn’t be discovering a new category of unprotected speech, nor even expanding a currently recognized category.
The downside, from the eliminate-revenge-porn perspective, is that treating revenge porn as obscenity requires that the State prove much that is non-trivial to prove, and gives Giovanni lots of room to defend himself—for example, he could bring in an expert to explain to the jury why his republication of Lucrezia’s image has serious artistic value.
That the State’s burden would be non-trivial is an upside from the defend-free-speech perspective. The harder we make it for Giovanni to be convicted, the more likely it is that our statute will pass muster. We cannot eliminate the “no serious value” element (for example) without rewriting obscenity law, and it is a premise of this post that want our statute to be constitutional under the current First-Amendment regime.
It may not be possible to convict everyone who is caught republishing paramours’ sex pictures without their consent (never mind the difficulty in catching everyone who does so). A constitutional revenge-porn statute, even if it doesn’t make conviction of every publisher inevitable, will dissuade some people from publishing revenge porn; an unconstitutional revenge-porn statute, on the other hand (like those statutes passed in California and New Jersey), will be a joke, setting back the fight against revenge porn by five or ten years. If we want our statute to be constitutional, we may have to face the fact that it is not possible both to eliminate revenge porn and to defend free speech; we may have to settle for discouraging and disrupting revenge porn rather than eliminating it.
Unlike some who have proposed revenge-porn statutes, I welcome dissent. My self-image doesn’t depend on my being right. I love to be shown that I’m wrong, even publicly, because then I can stop being wrong. So, please, tell me how I’m wrong.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) .)
I hope Marco, who fights revenge-porn publishers in civil court, will tell me why I’m wrong. ↩
Which community? ↩
I shouldn’t be surprised, but I am. I knew it. I had written about it. But still I tried to engage Mary Anne Franks on the law, to explore the truth. Like Charlie Brown with his football, I allowed myself to be surprised by more of the same: Overstate your case. Misstate the law. Make handwaving generalizations. Demonize disagreement. Use false analogies. Lie.
Mary Anne Franks won’t engage on the law in any honest way. She confesses why:
The bottom line for me as an activist and legislative advisor (as opposed to as a scholar, because the roles are slightly different) is to draft and support laws that protect victims and comply with the First Amendment.
Franks is a true believer. When it comes to revenge-porn legislation, she is writing not as a scholar but as an activist—a role that is not only “slightly different,” as she claims, from that of scholar, but radically different. How so? Scholars explore the truth. Activists try to get things done. If you see yourself as an activist, the end justifies the means, so overstate your case, misstate the law, make handwaving generalizations, demonize disagreement, use false analogies, lie.
As Nathaniel Burney notes,
And how much more cause for concern, then, when those who catch potential problems are not engaged in thoughtful debate, but are instead shouted down and accused of malicious and reprehensible conduct?
It looks like that’s what’s been going on recently in an ongoing debate over proposed “Revenge Porn” legislation that’s floating around out there. At first the shenanigans were amusing to watch, but lately it’s turned into a distressing train wreck online. A law has been proposed in reaction to something with a lot of emotional pull, thoughtful people have voiced concerns that it may be a bad law, and its proponents have responded less with reasoned debate than with emotional backlash. Those who disagree are shouted down as stalkers and assholes; their comments are deleted so that others may not see them.
Ignoring whether either side is right or wrong, what a terrible blow this has been to the credibility of the law’s proponents. Think how insecure they must be in their own assertions to react so defensively. How much confidence can than inspire in the rest of us?
There may be sound arguments in favor of the constitutionality of Franks’s pet project, but Franks hasn’t yet made them. I’m not the finest First-Amendment scholar I know, but I have learned a thing or two about the First Amendment through actually litigating free-speech issues, and I will stake my arguments for the unconstitutionality of Franks’s revenge-porn statute against her arguments for its constitutionality in any court of appeals anywhere.
In her writing in justification of revenge porn, Franks has sacrificed scholarship on the altar of activism. If she didn’t have the title of “professor,” no lawyer with any background in First-Amendment law would take her polemics seriously.
Now Franks is writing a paper with her fellow true-believer Danielle Citron on the subject. Scott Greenfield suggests that the Academy may be lacking in guts, afraid to be called “misogynist”; if that is so, then Franks’s activist pseudoscholarship is sure to find a home.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) .)
In a comment to this post, in which I wrote:
I confess that I don’t know who JD Underground’s denizens are. Dropping in there is like visiting a party at which a bunch of doughy masked frat boys alternately slap-fight and masturbate each other. It’s frankly disturbing.
…JD Underground denizen “patentesq” asks, “Hey, Bennett how about arguing your points on JDU?”
I wonder: what part of my description of JD Underground does patentesq find so appealing? Does he like the doughy fratboys, the slap-fighting, or the mutual masturbation? Or is the whole package what attracts him so much to the site that he thinks I should want to be there too?
Then patentesq’s fellow doughy masked frat boys discuss who Mark Bennett is. Which is funny, first inherently—because if identity were important to them, they’d be identifying themselves—and second because “who Mark Bennett is” is no mystery: I’ve written more than 850,000 words here; I have a separate advertising website; I’m active on Twitter; I’ve got videos online; I’ve been interviewed by various media outlets. I’m very much the opposite of an anonymous commenter.
JD Underground’s anonymous commenters are like lapdogs behind a high fence yipping at the big dogs running free.
Freedom is great, pups. Come on out from behind your fence, and let’s play.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) .)
PrometheeFeu, I do disagree with you, but much more importantly, the Supreme Court disagrees with you. The Court has never held that speech that has zero political, newsworthy, artistic, or scientific value receives First Amendment protection – and certainly not full First Amendment protection. Speech, by the mere virtue of being speech, does not receive First Amendment protection by default. Factor in that the speech in question here is sexually explicit, of purely private interest, and has devastating secondary effects – that’s speech with zero positive value and a great deal of negative value. There’s no Supreme Court precedent for protecting that. To the contrary, the Court has made it clear that such forms of speech “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality” (Chaplinsky v. New Hampshire)
For a case in which the Supreme Court held that speech with zero political, newsworthy, artistic, or scientific value receives First Amendment protection, we need look no further than 2010’s U.S. v. Stevens. Stevens was about depictions of animal cruelty, valueless speech if there is such a thing. In that case the Court rejected, in no uncertain terms, the proposition that there is a balancing test for the criminalization of speech:
The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.
As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178, 2 L.Ed. 60 (1803).
To be fair to the Government, its view did not emerge from a vacuum. As the Government correctly notes, this Court has often described historically unprotected categories of speech as being “‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’” R.A.V. (quoting Chaplinsky). In New York v. Ferber we noted that within these categories of unprotected speech, “the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required,” because “the balance of competing interests is clearly struck,” id. The Government derives its proposed test from these descriptions in our precedents. See Brief for United States 12–13.
But such descriptions are just that— descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor.
So where Franks sees a balancing test in Chaplinsky, today’s Court does not. Contrary to Franks’s foot-stamping assertion, speech is protected by default. Speech is protected unless it is within a category of speech that is historically unprotected. Stevens again:
Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that “depictions of animal cruelty” is among them. We need not foreclose the future recognition of such additional categories to reject the Government’s highly manipulable balancing test as a means of identifying them.
Franks will not address the categorical approach taken by the modern Supreme Court in Stevens. She will not because revenge porn does not fit into any category of speech that has been described by the Court as historically protected. To admit that would be to admit that she has been wrong all along; that current Supreme Court precedent does not permit what she would have state legislatures to do.
Franks is not acting as a neutral, but as an advocate for a position. Unfortunately, when she presents herself as a “law professor” laypeople assume that she is neutral, that she is knowledgeable about the subject matter, and that she is right. In this instance, none of those assumptions are correct.
It might be that the Supreme Court will someday recognize a category of unprotected speech encompassing revenge porn. But convincing the Supreme Court to recognize a new category of unprotected speech will be a very different—and much more difficult—battle than Franks is selling to state legislatures.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) .)
In anonymous commentary on JD Underground, the subject being this post, the prequel on Avvo, and the ensuing discussion with Caryn Fennell, “patentesq“1 wrote:
I can’t imagine a group of medical doctors acting this way… law is a sickening profession in so many ways.
I confess that I don’t know who JD Underground’s denizens are. Dropping in there is like visiting a party at which a bunch of doughy masked frat boys alternately slap-fight and masturbate each other. It’s frankly disturbing. “Patentesq” might be a patent lawyer. Or he might be a twelve-year-old boy or a federal judge or a guy who likes to wear vinyl shoes that look like shiny leather.2
The fact that there are lawyers who thrive on conflict is foreign to patentesq and makes him all queasy, but still he makes a good point: medical doctors don’t publicly call out each other’s bullshit.
If they did, we would see doctors publicly criticizing doctors such as Emmette Flynn and Michael LaPaglia who sacrifice their ethical principles to comply with the unlawful commands of government agents.
Who talked about Flynn and LaPaglia, who filed a complaint with the Board of Medical Examiners against Flynn?
Who rejected the complaint against Flynn because he vas chust follovink orders?
No, you wouldn’t see a group of medical doctors behaving that way because they’re in a cozy little club in which being liked is more important than correcting problems.3
The criminal-defense bar? Some of its less passionate members4 prefer playing nice, sure, but generally not. We criminal-defense lawyers brawl for a living. We buck the majority all day every day—every client is someone whom most people want to see in a box. Since we’re thwarting the will of the majority, most people think we’re assholes anyway, so what the hell, we tell them the unvarnished truth.
We tell each other the unvarnished truth. It doesn’t do my client any good to have other lawyers tell me my defense is great, when in fact it’s the stupidest thing since Rakofsky v. Internet.
Most of us don’t get our panties in a wad when we get told that we’re wrong, which is good because we get told that we’re wrong all the damn time. We have sharp tongues and thick skins.
Ms. Fennell, and those who think I should have used some phrase more genteel than “ignorant twaddle” in my assessment of her ignorant twaddle, are operating under an incorrect assumption: that I intended to teach her something.
I’ve long since given up trying to teach lessons to unwilling students. If Fennell had wanted to take the lesson, she was welcome to it, but my Avvo comment was intended only as a small monument—one that I had no reason to think anyone would ever see—to incompetence in Avvo Answers, like planting a flag of reason on a distant asteroid of nonsense.
I didn’t think Fennell was stupid, or incompetent, much less nefarious, but she was ill-informed about a subject that lots of lawyers don’t understand, and that I’ve been trying to educate people about for years.5
That Caryn Fennell took it as a personal affront, and then went off on a tear of dishonesty, anger, and bigotry was an outcome beyond my wildest dreams. She may never see it that way—with every word she sees herself as winning—but Fennell made herself an object lesson. Maybe thanks to the added attention some other lawyer will realize that the ethical rules don’t bar a lawyer from talking to an already-represented person who wants to hire him. Maybe one such lawyer talks to a represented person, realizes that the client is getting screwed, substitutes in and rescues the client’s future. The possibility makes me grateful to Fennell.
But as patentesq says, this never would have happened with doctors. If one doctor posts in a public forum, saying “a doctor must treat an unconsenting patient if asked to by law enforcement,” some other doctor might gently correct him: “no, brother physician, the principle of respect for authority requires that you follow the patient’s wishes.” Or they all might just leave it alone. Because being liked is very important.
And those ill-informed doctors who agree with the original poster—who aren’t stupid or incompetent, much less nefarious—will go blithely and ignorantly on, assaulting people with what the Fifth Circuit called “greater affront[s] to [their] dignitary interest than full-on exploratory surgery.”
Screw that. I like our way 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 (184.108.40.206) .)
1,238 posts on JD Underground since May 9, 2012 ↩
They’re patentesque. ↩
Perhaps the patent bar is like that too. ↩
Momma calls cops for help with mentally ill son.
Cops come, Officer Cardan Spencer shoots the son, who’s standing with his hands at his sides.
Son is charged with aggravated assault on the cops, which is what happens when the cops try to kill you and fail.
Until the video turns up…
(via Dallas Morning News).
The question, from someone in Houston, was this:
If already hired a criminal defense lawyer, will another lawyer agree to a consultation?
I have paid a criminal defense lawyer full asking price and have heard no answers on the case and trial is around the corner, what do I do if the lawyer wont respond to me and provide me with updates, still no plea deal and it’s been almost a year. Pretty much wiped out my account to pay the lawyer upfront for best representation possible, the charges are serious! Do you fire the lawyer even though time is running out, what about the $25k already paid for representation? I have no contract agreement with attorney and no detailed invoice.
Caryn S. Fennell of Canton, Georgia saw fit to respond:
Lawyers are barred by the rules of ethics to communicate with represented persons without the consent of the lawyer providing the representation. Either your retained lawyer must consent in writing for the communication to take place or you must terminate the relationship with that lawyer and show proof of such to the new lawyer before the new lawyer will take your case on and discuss the details with you.
In Texas, the rule is clear, and Fennell is clearly wrong. The rule against communicating with a represented person applies to a lawyer representing a client with regard to the subject of the communication. That is, the plaintiff’s lawyer can’t talk to the defendant about the lawsuit. But a client is allowed to change lawyers, so he can talk to a potential new lawyer before he is done with the old, even without the old lawyer’s permission. The new lawyer has no duty to get the old lawyer’s consent, and in fact cannot reveal to the old lawyer that the client has spoken to her unless the client consents to that revelation.
So maybe the rule is different in Georgia? Nope. Fennell is answering a question in a jurisdiction 800 miles from her, and is answering it wrong.1 This is about par for the course for answers on Avvo: ignorant twaddle, given for free by lawyers whom, it is to be hoped, nobody actually pays for advice.
I don’t know how this came to my attention, but when it did I of course set the record straight in my usual gentle way:
Nonsense. Ignorant twaddle. Read the rules. A client is free to consult with a new lawyer without the consent of the old lawyer. The new lawyer need not—indeed, must not, without the client’s consent—reveal to the old lawyer that the client has done so.
A couple of days later, Caryn Fennell replied:
Not only does Caryn Fennell not know the ethical rules; not only does she share her ignorance in a place where it isn’t required (and where it might do the questioner great harm by discouraging him from seeking new counsel when his current counsel is neglecting his case); but also—and infinitely more damningly—when she sets out to insult someone the first epithet that comes to mind is “retard.”
For shame, Ms. Fennell. For shame.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) .)
In her defense, most lawyers get the rule wrong—Lee Golini of Warwick, Rhode Island gave the same advice; others took the trouble to agree to their answers. Most of them keep their ignorance to themselves. ↩
Those who think we need a statute criminalizing nonconsensual porn need look no further. Texas’s improper-photography statute says:
A person commits an offense if the person…by…electronic means…transmits a visual image of another at a location that is not a bathroom or private dressing room…without the other person’s consent; and…with intent to arouse or gratify the sexual desire of any person;
In a deposition in August Hunter Thomas Taylor, the alleged proprietor of revenge-porn site texxxan.com, told lawyer John S. Morgan, “I’m not at fault for anything because I just opened the platform and let people post whatever they wanted.”
Texas’s Law of Parties states:
A person is criminally responsible for an offense committed by the conduct of another if…acting with intent to promote or assist the commission of the offense, he…aids…the other person to commit the offense.
I believe Taylor is representing himself, and probably shouldn’t be. Because improper photography is a felony, and if he said what Morgan says he said, he’s two-thirds of the way to confessing to a felony—actually, a vast number of felonies.
Assuming that his website posted erotic pictures (which would be probable cause for the “intent to arouse” element) and mentioned “revenge” (probable cause for the “without consent” element) the State can charge Morgan with a state-jail felony for each image Taylor “let people post” to the website that he maintained.
The court will set separate bail on each case; even at low state-jail-felony bail amounts (say $2,000 per case) the state can keep filing cases until Taylor is broke and no longer has the resources to get out. How many images were there on texxan.com? 5,000? 10,000? If he wants to make $20,000,000 bail, he’ll need $21,000,000 in cash, because no bondsman in Texas is going to touch that bond without full collateral.
Each case will have a two-year maximum day-for-day sentence, but the State will have to try Taylor separately for each case they want run concurrently; if they try cases together the sentences will be concurrent. Taylor will (presuming that he has no felony convictions) be eligible for probation. If he gets probation, the trial court can set conditions of probation, including up to 180 days in jail—again, day-for-day.
Indicting Taylor is not rocket surgery: “On or about some date in the last three years, in some county in Texas, he transmitted a visual image of another, without that person’s consent, with the intent to arouse or gratify someone’s sexual desire. Against the peace and dignity of the State. Signed, foreman of the grand jury.”
True, I think the statute is unconstitutional. And Morgan can certainly argue that the statute violates the First Amendment, either while he’s sitting in an East Texas jail (if he’s curious about the timeframe, the fight I’m having over the unconstitutionality of Texas’s online-solicitation-of-a-minor statute has been going on since 2010), or after he’s a convicted felon.
Hell, I’ll even argue it for him pro bono, as long as he hires someone else to handle the substantive case. I’m just the law man.
The problem with revenge porn is that it is nonconsensual—the nasty sequelae are just the icing on that cake—and Texas’s improper-photography statute cuts right to that point.
So let’s stop letting the law profs show how little First-Amendment law they know and digging states into ever-deeper constitutional morasses; it’s embarrassing to everyone. No, let’s hash out the constitutionality of statutes forbidding revenge porn here and now.
After the trial court we’ll go to the Beaumont Court of Appeals, then the Texas Court of Criminal Appeals if they’ll grant review, and the Supreme Court if they will.
The law is in place, the defendant is in place, and the complaining witnesses—plaintiffs in the suit against texxxan.com—are organized and willing to show their faces.
And whether Taylor can afford to mount a proper First-Amendment attack on the statute or not, charging him with a bunch of cases will at least give his victims the satisfaction of seeing him cool his heels in jail for a while.
That’s worth something.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) .)
I’ve discussed Mary Anne Franks’s proposed state statute criminalizing revenge porn and New Jersey’s statute criminalizing revenge porn, and concluded that under current Supreme Court caselaw appellate courts will be constrained, in the face of a serious First-Amendment challenge, to invalidate both as unconstitutional restrictions on free speech.
What about California’s statute, which was more recently signed into law? According to that statute, misdemeanor disorderly conduct is committed by:
Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.
Frankly, that’s weak sauce,1 especially compared to an earlier draft proposal:
Every person who, with the intent to cause substantial emotional distress or humiliation, by means of an electronic communication device, and without consent of the other person, electronically distributes, publishes, emails, hyperlinks, or makes available for downloading nude images of the other person along with personal identifying information of the other person, is guilty of a misdemeanor punishable by up to one year in a county jail, by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment.
The California statute has something that Franks’s proposed statute and the New Jersey statute lack: a requirement that the defendant intend to cause harm (and in fact cause harm) by his publication of the images. Franks’s proposed statute requires only publication “under circumstances in which the person has a reasonable expectation of privacy”; New Jersey’s requires only that the defendant “know that he is not licensed or privileged” to publish. Both would criminalize publication of images even if the subject of the images did not object to the publication.
So the California statute, in its requirements of an intent to cause harm and actual harm caused, has an advantage over the Franks and New Jersey statutes. Is that enough to save the California statute from unconstitutionality?
Since the California statute, like the New Jersey statute and the Franks statute and the Texas statute (and, in truth, any statute targeting revenge porn) is a content-based restriction on speech (that is, you violate the statute by publishing private images of intimate, but not of non-intimate body parts), it is presumptively invalid, and it fails unless it can be shown to fall within some long-established category of unprotected speech.
The recognized categories of protected speech are obscenity, defamation, incitation, and speech integral to criminal conduct.
Speech that violates California’s revenge-porn statute is not obscenity, defamation, or incitation. But is it integral to the criminal conduct of intentionally causing serious emotional distress?
That’s a trick question. “Intentionally causing serious emotional distress” is not a crime.
Could it be?
The Supreme Court has not similarly affirmed that the First Amendment protects speech that is intended to cause and causes serious emotional distress…except in the context of a suit by a public figure (Jerry Falwell) over emotional distress intentionally inflicted by a publisher (Hustler Magazine). In Hustler Magazine v. Falwell in 1988 the Court held that the a public figure could not recover for serious emotional distress intentionally caused by the magazine’s patently untrue statements.
Could a state criminally sanction intentionally causing serious emotional distress to someone who is not a public figure?
If the state can’t allow a public figure to recover damages for serious emotional distress (absent falsity or something more), it surely can’t criminally prosecute the person causing the serious emotional distress to the public figure (absent falsity or something more)—when the stakes are conviction and imprisonment, the standards can’t be lower than when people are fighting over money.
The criminal law does not distinguish between public and private figures. So, to complete the syllogism, if the state can’t prosecute a person for causing serious emotional distress to a public figure, it can’t prosecute a person for causing serious emotional distress to a private person.
This is an answer both to the question, “does the element of causing serious emotional distress make any difference” and the question, “is the speech that California would forbid integral to criminal conduct?”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) .)
Even if I thought revenge porn could be criminalized without violating free-speech principles, I wouldn’t be happy with California’s statute. ↩
See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982) (“Speech does not lose its protected character … simply because it may embarrass others or coerce them into action.” ↩
Norwell v. Cincinnati, 414 U.S. 14 (1973). ↩
Carey v. Population Services Int’l, 431 U.S. 678, 701 (1977). ↩
In Are Statutes Criminalizing Revenge Porn Constitutional? I considered Mary Anne Franks’s proposed statute aimed at revenge porn, and concluded that lower courts considering the constitutionality of the statute will be constrained by current Supreme Court precedent to find the statute unconstitutional.
At least three states—New Jersey, California, and Texas—have statutes that would criminalize revenge porn. I’ve discussed the unconstitutionality of Texas’s improper-photography statute before, and California’s statute is newer, so let’s turn our attention first to New Jersey’s third-degree-invasion-of-privacy statute.
Here’s the relevant portion:
(c) An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he discloses any 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 penetration or sexual contact, unless that person has consented to such disclosure. For purposes of this subsection, “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer. Notwithstanding the provisions of subsection b. of N.J.S.2C:43–3, a fine not to exceed $30,000 may be imposed for a violation of this subsection.
d. It is an affirmative defense to a crime under this section that:
(1) the actor posted or otherwise provided prior notice to the person of the actor’s intent to engage in the conduct specified in subsection a., b., or c., and
(2) the actor acted with a lawful purpose.
New Jersey’s statute comes with a loophole big enough to drive a truck through: if, before disclosing the image, the bad ex-boyfriend gave the ex-girlfriend notice of his intent to do so, and if he acted with a lawful purpose, he has an affirmative defense. That is, if he presents evidence that he gave notice and acted with a lawful purpose the State has to disprove the defense beyond a reasonable doubt.
So what?, you might think, revenge porn is never posted with a lawful purpose. Think again, teacup. There is nothing inherently unlawful about embarrassing someone, much less about promoting art. So provided that, before posting her nude pictures online, he sent her an email…:
I am sorry things didn’t work out between us. Thank you for the lovely nudes. I will be publishing them, along with your name and address.
…Giovanni has not committed the New Jersey felony of invasion of privacy.
Further, Giovanni might reasonably believe that, because of his right to free speech, he is “privileged” to republish the images—an inferential rebuttal defense.
There are no appellate court opinions in cases in which the constitutionality of New Jersey’s 2C:14–9c, the third-degree-invasion-of-privacy statute, has been challenged. When it is seriously challenged, what result does United States Supreme Court precedent require?
Note first that the statute—like Franks’s proposed state statute—is content-based. That is, whether publication is forbidden depends on the content of the communication. A content-based restrictions on speech is presumptively invalid. The Supreme Court has said that the burden is on the State to show that a content-based criminal statute meets strict scrutiny, that is: a) it is justified by a compelling governmental interest; b) it is narrowly tailored to achieve that interest; and c) it is the least restrictive means for achieving that interest.
But Eugene Volokh argued in 1997 that “strict scrutiny” does not in fact describe the Court’s test for content-based restrictions on fully protected speech, and in fact in 2010, in the Supreme Court’s most recent significant First Amendment case, U.S. v. Stevens, the court did not even discuss strict scrutiny beyond the introductory section in which the Court described the Third Circuit’s reasoning. The Court did not discuss the Government’s compelling interest in preventing animal abuse,1 nor whether the statute was narrowly tailored. Instead it applied a categorical approach, much as Volokh advocated in 1997.
The Court in Stevens didn’t explicitly reject strict scrutiny, but it deprecated it. Discussing the example of New York v. Ferber, the Court wrote:
In Ferber, for example, we classified child pornography as [a category of speech outside the protection of the First Amendment]. We noted that the State of New York had a compelling interest in protecting children from abuse, and that the value of using children in these works (as opposed to simulated conduct or adult actors) was de minimis. But our decision did not rest on this “balance of competing interests” alone. We made clear that Ferber presented a special case….Ferber thus grounded its analysis in a previously recognized, long-established category of unprotected speech, and our subsequent decisions have shared this understanding.
The statement of the case in Stevens is pretty darn categorical:
Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.
Merely meeting strict scrutiny is not enough to uphold a statute. The State must also show that the speech that is restricted falls in some category that has been historically unprotected. Those categories are currently obscenity, defamation, fraud, incitement, and speech integral to criminal conduct
The speech addressed by New Jersey’s statute—images of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact—is not in itself obscene as the Supreme Court has defined obscenity.
It is not defamatory because it’s true.
It is not necessarily incitative—that is, it can be published without inciting the imminent commission of a crime.
It is not necessarily integral to criminal conduct. Speech is not “integral to criminal conduct” when the only crime that it is integral to is its own publication; if it were, then all outlawed speech would be integral to criminal conduct because it was outlawed, and no speech would be protected.
Because the nonconsensual publication of nude images does not fit into any enumerated category of unprotected speech, New Jersey’s third-degree-invasion-of-privacy statute—Like Franks’s proposed state statute—will fall in intermediate appellate courts to a serious First-Amendment challenge.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) .)
The dissent did. ↩
There’s a movement afoot to pass statutes outlawing “revenge porn”—the malicious publication of images of intimate partners. Here’s the proposed state statute, drawn up by Florida law prof Mary Anne Franks:
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.
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.
The question arises: Will such statutes pass Constitutional muster?
[Tl;dr: Not under current Supreme Court precedent. But there’s a lot more to it, so read it.]
A little history
In Dun & Bradstreet v. Greenmoss Builders the Supreme Court in 1985 addressed the question of whether a private individual1 had to show actual malice2 to collect presumed and punitive damages3 for defamatory statements not involving matters of public concern.
Before that, in Gertz v. Welch the Court had held in 1974 that a private person suing for defamation must, at least if the defamatory statements involved matters of public concern, show actual malice in order to recover presumptive and punitive damages.4 The Court had left open the question of whether the same rule applied when the defamatory statements involved matters of private concern. It was that open question that the Court addressed in Dun & Bradstreet. The Court, noting that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values and is entitled to special protection,” balanced the State’s interest in awarding presumed and punitive damages to a defamed person against the “incidental effect these remedies may have on speech of significantly less constitutional interest,” and concluded that the balance between speech not of public interest and the State’s interest in providing remedies for defamation favored allowing presumed and punitive damages without proof of actual malice where the subject of the defamation was not a matter of public concern.
That’s all by way of introduction to differing treatment of matters of “public concern” and private matters in the Supreme Court’s First-Amendment jurisprudence. It has come into play only in civil cases, where the Court has balanced the good of the speech against the State’s interest.
There is also a line of Supreme Court cases (for example, 1983’s Connick v. Myers) in which public employees’ speech on matters of public concern was distinguished from public employees’ speech on matters of private concern, so that public employers could fire employees only for speech not involving matters of public concern. In these cases the Court recognized that “the State’s interests as an employer in regulating the speech of its employees differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” In other words, those cases are a whole different thing than either the State’s providing civil remedies for speech torts or the State’s punishing speech crimes.
The U.S. Supreme Court has never applied a balancing test to statutes criminalizing speech. In 2010 in U.S. v. Stevens the Court considered the federal statute forbidding “crush videos”—videos showing the intentional illegal torture and killing of animals without “serious religious, political, scientific, educational, journalistic, historical, or artistic value.” The Government asked the Court to apply a balancing test to this statute, and find it constitutional. The court responded:
As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.”
In other words, “No.” The Court will not apply a balancing test to decide whether a statute criminalizing speech passes First-Amendment muster. The Court listed categories of speech historically and traditionally unprotected by the First Amendment—obscenity, defamation, fraud, incitement, and speech integral to criminal conduct—and, conceding that “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law[,]” declined to find crush videos in such an unprotected category.
Back to Ms. Franks’s proposed statute
Ms. Franks’s proposed anti-revenge-porn criminal statute is a content-based speech restriction: it criminalizes disclosure of a photograph of a person having sex, but not disclosure of (for example) a photograph of a person writing a blog.5 Content-based restrictions on speech are presumptively invalid, and the State has the burden of showing that they meet strict scrutiny. So the best way to answer the question of whether such statutes are constitutional is to address the best arguments their proponents make in favor of their constitutionality.
Here’s law prof Danielle Citron, arguing that Franks’s proposed anti-revenge-porn statute is constitutional:
The Court has also held that where matters of purely private significance are at issue, First Amendment protections are less rigorous.
The specific “matters of purely private significance” language is found in only one Supreme Court Case: Snyder v. Phelps. In that civil case,6 the language is mere dicta,7 not part of the holding in the case. As we have seen, though, the Court has held the distinction between public and private concerns important only in civil cases; that distinction has never come into play in the Supreme Court’s consideration of a statute criminalizing speech.
Stevens would have been the perfect opportunity for the Court to hold that First-Amendment rules are different for statutes criminalizing speech on matters of no public concern. The illegal torture of animals without “serious religious, political, scientific, educational, journalistic, historical, or artistic value” not only is not a matter of public concern (the videos are created for “persons with a very specific sexual fetish who find them sexually arousing or otherwise exciting”), but it has negative public concern—that is, the public has an interest in the quashing of illegal torture of animals, to which the crush videos are arguably integral.
So when Citron says, “The Court has also held that where matters of purely private significance are at issue, First Amendment protections are less rigorous,” she is attempting to mislead the reader.8
Likewise Citron’s assertion that “Speech constituting privacy invasions on purely private matters can be criminalized consistent with the First Amendment’s guarantees.” The Supreme Court has never come anywhere close to such a holding; the only cases that Citron cites in connection with that assertion are civil cases.
“In cases involving private individuals whose sexually explicit images are published without their consent,” writes Citron, “it’s easy to [sic] why the public has no legitimate interest in viewing them.” What’s plain to Citron may not be plain to all. Many people plainly see why the public has no legitimate interest in viewing any sexually explicit images. Yet most sexually explicit interests (short of the obscene) are protected by the First Amendment. The permissible content of speech is not determined by the Church, nor by feminist legal theorists, nor by the majority of voters. To some people, nonconsensual images may have artistic value.
A similar shot at bamboozlement is Franks’s assertion that “The First Amendment doesn’t protect threats, obscenity, child pornography, and a very long list of other things.” I said it here, but it bears repetition: In her working paper on the subject (PDF), Franks lists the categories of speech that she thinks are unprotected: “stalking, harassment, true threats, child pornography, incitement, obscenity, fighting words, libel, fraud, expression directly related to criminal conduct, or discrimination.” For this she cites Stevens. Stevens mentions “obscenity…defamation…fraud…incitement…and speech integral to criminal conduct” in its enumeration of unprotected categories of speech. Stevens does not mention “harassment,” nor does it mention discrimination in the context of unprotected speech; fortunately for Franks, who substitutes anti-male ad hominems9 for cogent argument, much discriminatory speech is clearly protected.
Here are Franks’s five best arguments (from her “working paper”) for the constitutionality of her proposed statute:
Franks’s First Argument
1. The First Amendment does not serve as a blanket protection for malicious, harmful conduct simply because such conduct may have an expressive dimension. Stalking, harassment, voyeurism, and threats can all take the form of speech or expression, yet the criminalization of such conduct is common and carefully crafted criminal statutes prohibiting this conduct have not been held to violate First Amendment principles. The non-consensual disclosure of sexually intimate images is no different.
There is a world of difference between “The First Amendment does not serve as a blanket protection for malicious, harmful conduct” and “malicious, harmful conduct is unprotected.”
Franks makes a number of such assertions as “the non-consensual disclosure of sexually intimate images is no different,” but stamping her foot and insisting that it’s so doesn’t make it so. Even if a law professor is incapable, a competent lawyer can always find a difference between two things. One important difference between the disclosure of sexually intimate images on the one hand, and the conduct of harassment, threats, and stalking on the other, is that a statute forbidding the former is necessarily content-based, so it must meet strict scrutiny.
“It’s kinda like harassment” doesn’t overcome the obstacle of strict scrutiny, especially since the Supreme Court has never upheld a criminal harassment statute.
Franks’s Second Argument
2. The non-consensual disclosure of sexually graphic images is a matter of purely private concern, which the Supreme Court has held does not warrant the robust protection afforded to expression of matters of public concern. The Supreme Court has “long recognized that not all speech is of equal First Amendment importance. It is speech on ‘matters of public concern’ that is ‘at the heart of the First Amendment’s protection.’ … In contrast, speech on matters of purely private concern is of less First Amendment concern.” While some matters of private concern may receive First Amendment protection, there must be some legitimate interest in the consumption of such images for this to be the case. There is no such legitimate interest in disclosing or consuming sexually explicit images without the subjects’ consent. Prohibiting the non-consensual disclosure of sexually graphic images of individuals poses “no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas concerning self-government; and there is no threat of liability causing a reaction of self-censorship by the press.”
I dealt with the “purely private concern” argument above. The quote in Franks’s argument is from Dun & Bradstreet. As discussed above, this is not true in any way meaningful to the discussion of a statute criminalizing revenge porn.
The State doesn’t get to criminalize speech that it thinks is not legitimate. Stevens, again:
The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.
The proposed private/public interest distinction would be a dangerous one. As the Supreme Court wrote in 2002 in Ashcroft v. Free Speech Coalition, “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”
Franks’s Third Argument
3. Sexually intimate images of individuals disclosed without consent belongs to the category of “obscenity,” which the Supreme Court has determined does not receive First Amendment protection. In Miller v. California, the Court set out the following guidelines for determining whether material is obscene: “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest…; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” The Supreme Court provided two “plain examples” of “sexual conduct” that could be regulated:
“(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.”
Disclosing pictures and videos that expose an individual’s genitals or reveal an individual engaging in a sexual act without that individual’s consent easily qualifies as a “patently offensive representation” of sexual conduct. Such material moreover offers no “serious literary, artistic, political, or scientific value.”
Where Franks’s second argument was frightening, this one is risible. The rules for obscenity apply to “a work” or “material,” not to “a disclosure” or “a publication.” If the material that the complainant gave the defendant didn’t depict or describe sexual conduct in a way that would have been offensive to a given community when she gave it to him, it doesn’t magically do so when he republishes it.10
In addition, Franks stamps her foot over value. A photo republished without its subject’s consent may well have artistic value. Indeed, the nonconsensual nature of the publication may imbue an image with artistic value that it otherwise wouldn’t have, just as an objet trouvé has artistic value that was unapparent to its discarder.
Franks’s Fourth Argument
4. The “publication of private facts” tort is widely accepted by the majority of courts to comply with the First Amendment, although the Supreme Court has yet to rule explicitly on the constitutionality of this tort with regard to matters not of public record. According to the Restatement (Second) of Torts, “One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” In New York Times v. Sullivan, the Court observed that criminal statutes afford more safeguards to defendants than tort actions, suggesting that criminal regulation of conduct raises fewer First Amendment issues than tort actions. If so, then a carefully-crafted criminal statute prohibiting the publication of private facts—including the non-consensual publication of sexually intimate images—should pass constitutional muster.
This argument is at least a bit interesting. But “the Supreme Court has yet to rule explicitly on the constitutionality of this tort with regard to matters not of public record” is misleading—the Supreme Court has yet to rule explicitly or implicitly on the constitutionality of this tort.11
A tort12 is not a crime, and the suggestion that “criminal regulation of conduct raises fewer First Amendment issues than tort actions” does not match what we observe in the Supreme Court’s First-Amendment jurisprudence: as we saw in considering Dun & Bradstreet and the public / private concern distinction, the Court is willing to cut the State slack when it is providing citizens with redress that it is not willing to cut the State when it is putting citizens in prison.
Franks’s Fifth Argument
5. Because the non-consensual disclosure of sexually intimate images is a practice disproportionately targeted at women and girls, it is a form of discrimination that produces harmful secondary effects and as such is not protected by the First Amendment. The First Amendment does not protect discriminatory conduct, and regulations that are predominantly concerned with harmful secondary effects rather than the expressive content of particular conduct do not violate the First Amendment. Prohibitions against discrimination on the basis of race, sex, national origin, and other categories, even when such discrimination takes the form of “expression,” have been upheld by the Supreme Court. Title II and Title VII of the Civil Rights Act of 1964, along with Title IX of the Education Amendments of 1972, all allow for the regulation of certain forms of speech and expression when they violate fundamental principles of equality and non-discrimination. Apart from the harm that non-consensual pornography inflicts on individual victims, it inflicts discriminatory harms on society as a whole. Like rape, domestic violence, and sexual harassment (i.e., abuses directed primarily at women and girls) non-consensual pornography reinforces the message that women’s bodies belong to men, and that the terms of women’s participation in any sphere of life are to be determined by their willingness to endure sexual subordination and humiliation. Nonconsensual pornography causes women to lose jobs, leave school, change their names, and fear for their physical safety, driving women out of public spaces and out of public discourse. Combating this form of sex discrimination is not only consistent with longstanding First Amendment principles, but comports with equally important Fourteenth Amendment equal protection principles.
I agree with Franks, generally, with regard to the harms inflicted on women (more than on men) and society by revenge porn.13 But that isn’t a legal argument.
The weakness in Franks’s legal argument that the harms of revenge porn trump the First Amendment is in two excerpts from R.A.V. v. City of St. Paul, quoted in part by Franks in her footnote supporting her assertions that “regulations that are predominantly concerned with harmful secondary effects rather than the expressive content of particular conduct do not violate the First Amendment,“14 and “Prohibitions against discrimination on the basis of race, sex, national origin, and other categories, even when such discrimination takes the form of ‘expression,’ have been upheld by the Supreme Court”:
Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular ‘secondary effects’ of the speech, so that the regulation is justified without reference to the content of the speech,…. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy.
[S]ince words can in some circumstances violate laws directed not against speech, but against conduct…a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct, rather than speech… Thus, for example, sexually derogatory “fighting words,” among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices.
(The underlined emphasis is mine.)
In the case of Franks’s proposed revenge-porn statute, unlike in the hypothetical situations discussed in these passages from R.A.V.,15 the conduct is targeted on the basis of its expressive content. In other words, R.A.V. is in the dicta explicitly not talking about content-based restrictions on speech such as Franks’s proposed statute.
The RAV court notes, more germanely:
We have long held, for example, that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses—so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not.
The holding of R.A.V. is directly contrary to the position that Franks takes: St. Paul’s ordinance, which prohibited fighting words that “insult, or provoke violence, on the basis of race, color, creed, religion or gender” was struck down by the Supreme Court because “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.” In other words, if the State is going to prohibit unprotected fighting words, it cannot prohibit some fighting words but not others based on their content.
“The point of the First Amendment,” wrote the Court in R.A.V., “is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.”
Ultimately, even in the terms she chooses Franks’s discrimination argument is a dishonest one. “Regulations that are predominantly concerned with harmful secondary effects,” she writes, “rather than the expressive content of particular conduct do not violate the First Amendment.” While Franks may be predominantly concerned with the harmful secondary effects of the conduct, her proposed statute is predominantly concerned with the expressive content of the speech. I suggest that she try her hand at drafting a non-content based statute dealing with the harmful secondary effects of revenge porn.
Franks quotes Eugene Volokh in support of the constitutionality of her proposed statute:
I do think that a suitably clear and narrow statute banning nonconsensual posting of nude pictures of another, in a context where there’s good reason to think that the subject did not consent to publication of such pictures, would likely be upheld by the courts.
Volokh, unlike Franks and Citron a First-Amendment scholar, is not actually endorsing Franks’s proposed statute as a “suitably clear and narrow statute.” In the same post he notes Stevens’s strong statement against expansion of categories of unprotected speech, and writes:
But even under this sort of historical approach, I think nonconsensual depictions of nudity could be prohibited. Historically and traditionally, such depictions would likely have been seen as unprotected obscenity (likely alongside many consensual depictions of nudity). And while the Court has narrowed the obscenity exception — in cases that have not had occasion to deal with nonconsensual depictions — in a way that generally excludes mere nudity (as opposed to sexual conduct or “lewd exhibition of the genitals”), the fact remains that historically such depictions would not have been seen as constitutionally protected.
It may be true: the Court could rewrite the obscenity exception to cover not only what is today recognized as obscenity—works that appeal to the prurient interest; depict or describe, in a patently offensive way, sexual conduct; and lack serious literary, artistic, political, or scientific value—but also mere nudity, even if it is not patently offensive and does have serious artistic value. If it did that, then revenge porn could be obscene. But this amounts to speculative legal fiction. It could happen, but it is not, I think, likely.
Still, while it’s not what I see in the tea leaves of Stevens,16 it may be that the Supreme Court will some day recognize a category of unprotected speech including revenge porn.17 Until then, though, any lower court considering the issue will be constrained by Supreme Court precedent to find such a statute unconstitutional.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) .)
That is, not a “public figure.” ↩
That is, that the defamer knew of the falsity of his statements or had reckless disregard for the truth. ↩
As opposed to actual damages that he could prove. ↩
As must a public figure suing for defamation. ↩
Unless, of course, the blogger’s intimate parts are revealed. ↩
The father of a dead Marine sued the vile Westboro Baptist Church for intentionally inflicting emotional distress upon him. ↩
That is, it is not essential to the decision in the case. ↩
“Then there’s a whole category of people who aren’t confused at all – let’s call this the ‘threatened sexist’ category.” ↩
Which is not to say that if it was obscene when he distributed it, it was obscene when she gave it to him: obscenity depends on the community. She might give him a sexually explicit picture, not obscene as to adults, and he might distribute it to children, as to whom it could be obscene. ↩
Is there a term for this sort of dishonesty, in which the speaker includes a limiting word to imply that the broader statement would not be true? ↩
A civil wrong. ↩
Franks calls it “nonconsensual,” but it was consensually created. ↩
Not true—the holding in R.A.V. ↩
Once again, Franks quotes dicta as authority. As we shall see shortly, R.A.V. does not stand for the proposition that content restrictions are justified by the discriminatory effect of the content. ↩
There was a single dissenter—Justice Alito—in Stevens. This is not a court eager to find a new category of unprotected speech out of outrage. I suspect that the common “if they don’t want naked pictures of them published, they shouldn’t share them” argument will resonate with the Court. ↩
In my view, the argument about Weiner’s selfies is premature until revenge porn generally fits into some unprotected category. ↩
The short story: Biologist Danielle N. Lee, who blogs at The Urban Scientist, gets a request from “Ofek,” an editor at “Biology Online” to write content there for free. She politely declines. The editor responds:
Because we don’t pay for blog entries?
Are you an urban scientist or an urban whore?
There are plenty of angles to this story that deserve closer attention. For example:
- There’s “Ofek,” who deserves googleable public naming and shaming.
- There’s the commonness of Ofek’s self-entitled attitude among marketeering shits.
- There’s the acquiescence of science bloggers who enable Ofek’s self-entitled attitude by contributing voluntarily to a crappy content-aggregation site run by a bunch of semiliterates: people such as cartoonist Katie Mcissick (who, to her credit, has demanded her content’s removal), professor Fred Essig, Dr. Michael Joyner, microbiologist Frances Coates, and marine biologist Samantha Craven.
- There’s the sucker deal that the enablers have made, not merely blogging for free, but also not getting even a link out of the deal—the publication of their work mentions their names (and, in the case of the bloggers—Mcissick and Craven, their blogs) but links to nothing.1
- There’s Scientific American’s craven conduct in trying to wipe DNLee’s post instead of whacking Biology Online upside the head with a virtual 2-by-4. As Maryn McKenna writes:
SciAm has silenced a blogger, implicitly criticized her, and explicitly not criticized a partner representative who abused one of their own people. These are not smart or moral actions, and they do not reflect well on a storied and respected brand.
I’m sure others will address all of those angles. I want to talk about the power we give the word “whore.”
To be clear, I’m not talking about the power that DNLee gives the word “whore.” Nor am I talking about the opprobrium that Ofek, Biology-Online, and its supporters (including Scientific American) deserve. I do not subscribe to the belief that the intent of the speaker is irrelevant; Ofek clearly intended the word as a sexist abusive epithet, especially in its contrast to the generally respected occupation of scientist:
Are you an urban scientist or an urban whore?
But “whore” would, in a better world, be robbed of its power as an abusive epithet. It would have no more negative connotation than “nurse,” or “psychologist,” or “plumber.“2
Are you an urban scientist or an urban plumber?
All of us—unless we are wholly reliant on others for our survival—exchange something others value for something we value. We exchange our time, our work, and our thought—little slices of our lives—which others value, for money, which represents value, and which we use to buy things—food, shelter, internet service—that we value.
And all of us, unless we are asexual or rapists, exchange something for sex. Buy you a drink? Dinner and a movie? The security of marriage? Some will reject this proposition out of distaste,3 but to an observer of human behavior it’s glaringly obvious: even if it’s nothing more than pleasure for pleasure, consensual sex is a trade of value for value.
If we accept those two propositions, setting aside the emotional,4 moral,5 patriarchal,6 and begging-the-question7 arguments, how do we rationally distinguish prostitution from any other exchange we make, either in the workplace or in the bedroom, so that the sex worker is different (less than a whole person) than the nurse?
Most of us aren’t making explicit exchanges of sex for value. If anything, that makes the sex worker’s transaction more transparent; surely that can’t be a bad thing. Anything a person has to sell, she should be able to sell to a willing buyer for agreed-upon terms, as long as the transaction doesn’t harm a third party.
It is a strange trade, that of advocacy. Your intellect, your highest heavenly gift, hung up in the shop window like a loaded pistol for sale….8
I’ve long thought that the trade of criminal-defense lawyer shares a good deal with that of sex worker. Neither is widely loved or well understood by the general public. Both generally involve ad hoc relationships with people whose need for us, if made public, would embarrass them. For both, confidentiality is paramount.
But there’s this monumental difference: criminal-defense lawyers aren’t getting raped, and are rarely getting murdered, for being criminal-defense lawyers. Sex workers are getting raped and murdered for being sex workers. The reason for this is the same as the reason that “whore” has its power to shock and offend: whore stigma. Acknowledge that people have the right to do with their bodies what they will, and sex work comes out from underground and into the light; allow sex work into the light and sex workers are no longer as vulnerable to those who would prey on them.
How do you get rid of stigma?
I sell my highest heavenly gift for money, cash on the barrelhead. I don’t need to love you, or even like you, to do it (though I’ll admit that makes the job easier). If you want a freebie, I’ve got no obligation to give it, and I’ll probably decline.
Metaphorically9 I am a whore. I don’t claim that that makes me a literal whore, but it damn sure doesn’t make me any better than one. Maybe worse: while whores are just selling sex; I’m selling thought.
Can you claim to be any 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 (184.108.40.206) .)
This makes Ofek a liar as well, since he claims that “by writing and linking to us, you not only receive traffic from us, but it can have a direct effect on the traffic and rank of your blog, and that in turn has a direct effect on advertising revenue.” I do not like liars. ↩
And damn sure less than “marketer.” ↩
“Sex is precious, and shouldn’t be bought or sold.” ↩
“Well, I wouldn’t want to do it, so how can you?” ↩
“It’s wrong because I say so.” ↩
“Womenfolk belong to menfolk, who have historically made the rules.” ↩
“Prostitution harms society.” Okay, how? ↩
Thomas Carlyle, Lord Jeffrey, 1867. Incomplete, inadequately sourced, and mispunctuated versions of this quotation abound across the Internet. This, per Mencken’s New Dictionary of Quotations (1942), is correct. The end of the sentence is this: “…, will either blow out a pestilent scoundrel’s brains, or the scoundrel’s salutary sheriff’s officer’s (in a sense), as you please to choose for your guinea.” ↩
Which is, perhaps, the way that Ofek intended it ↩
In support of her attempt to limit speech to protect women from revenge porn, Mary Anne Franks, who teaches family law, criminal law, and criminal procedure at the University of Miami, demonstrates, via Concurring Opinions, some of the hazards of single-issue advocacy, accidentally providing some compelling negative rhetorical lessons, demonstrating to the world six things not to do when you’re trying to persuade:
- Overstate your case: “[T]his kind of conduct is an act of sexual use without consent, that is, a form of sexual abuse.“
The thing about laws restricting speech is that speech is treated differently than conduct. Franks can stamp her foot and insist that revenge porn is sexual abuse, but saying it doesn’t make it so.
- Misstate the law: “Right now, only two states, New Jersey and California, currently treat non-consensual pornography as a crime in itself.“
Texas’s improper photography statute treats non-consensual pornography as a crime in itself: “A person commits an offense if the person…transmits a visual image of another…without the other person’s consent; and…with intent to arouse or gratify the sexual desire of any person.“1 I’ll bet Franks missed other states’ statutes.
- Make handwaving generalizations: “The First Amendment doesn’t protect threats, obscenity, child pornography, and a very long list of other things.“
In fact, the list of other speech unprotected by the First Amendment is quite short.
In her working paper on the subject (PDF), Franks lists the categories of speech that she thinks are unprotected: “stalking, harassment, true threats, child pornography, incitement, obscenity, fighting words, libel, fraud, expression directly related to criminal conduct, or discrimination.” For this she cites, in footnote 31, U.S. v. Stevens.
Stevens mentions “obscenity…defamation…fraud…incitement…speech integral to criminal conduct,” and child pornography. Stevens does not mention “harassment,” nor does it mention discrimination mentioned in the context of unprotected speech, and much discriminatory speech is clearly protected.2 I don’t believe that this law professor’s misrepresentation of Supreme Court First-Amendment precedent is negligent.
There are arguments that other categories of speech—for example, harassment and violations of privacy—should be unprotected; these arguments have never been accepted by the U.S. Supreme Court. In order to uphold Franks’s proposed statute, the Supreme Court would have to create a new category of unprotected speech—speech violative of privacy. I’m not saying it couldn’t happen, but it hasn’t happened yet, and the last time the Court had an opportunity to create a new category of unprotected speech, in U.S. v. Stevens, it declined.
- Demonize disagreement: “I think resistance to these laws can arise from a variety of factors. Some people – including some lawyers, much to my surprise – are just uneducated about the First Amendment and really seem to think that it protects all forms of expression.… But then there’s a whole category of people who aren’t confused at all – let’s call this the ‘threatened sexist’ category.“
So if you don’t agree with Franks, you are either ignorant or a threatened sexist.3 I know I am supposed to be impressed by Franks’s CV, but the inability to see the other side of the argument except in condescending or offensive terms—is usually the sign of a second-rate mind and a third-rate lawyer. She must be a really hard worker.
- Use false analogies: “Presumably these people also believe that if a woman has sex with one man, she has given that man the right to invite all of his friends into the bedroom to have sex with her too.“
Nonsense unworthy of response. The basic problem here, I suspect, is that for purposes of her political crusade, Franks doesn’t want speech to be different from conduct, but it is different.
- Lie: “One New York lawyer/blogger was so freaked out by the law I wrote that he wrote an entire post about it that didn’t contain a single argument against it – only the incredibly juvenile and tasteless insinuation that I must be working on this issue because I was a victim of this conduct myself.“
This being the Internet, you can read the post to which she’s passive-aggressively referring here, and judge for yourself the truth of her description.
I have strong feelings about protecting kids. I have strong feelings about protecting women from abuse. Those strong feelings are trumped by my strong feelings about the First Amendment, as they should be—even odious speech needs protection—but I’m willing to consider arguments for restricting this particularly odious speech.
In her working paper, Franks suggests five justifications for her revenge-porn law. They range from interesting (“publication of private facts”) to risible (“obscenity”) to dangerous (“matter of purely private concern”). It would be interesting to see the arguments fleshed out by someone interested in the law, rather than in a political movement or a vanity project. That’s not what we’re getting from Franks.4
My advice to Franks’s students, should any wander by here: don’t follow her example. It may work in the academy; it may persuade dimwitted legislators; but in the world of real advocacy you’ll get eaten alive.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) .)
Franks can call her detractors misogynists, and they have no recourse. ↩
By Franks’s reasoning, since I am fighting Texas’s online-solicitation-of-a-minor statute, I must favor child abuse. ↩
Here’s Marc Randazza’s analysis:
I think your law is fucking idiotic. Absolutely. Fucking. Idiotic.
Nothing but the academic circle jerk and a few vote-starved legislators could possibly consider *criminalizing* the publication of photographs to be tolerable. So go write another law review article about something else you have no first-hand experience about, and leave the legal work to the big boys and girls. ↩
The last time we checked in with Robert S. Bennett, it was because Lillian Hardwick, the State Bar’s ethics “expert” who was going about opining on the matter of flat fees in criminal cases, had associated herself with him to lecture and write an article on ethics.
Before that, we saw Bennett appearing on a major federal criminal fraud case as a “concierge lawyer.”
Now he’s facing a lawsuit by the Commission for Lawyer Discipline (Robert S Bennett Disbarment Petition):
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The meat of the Commission’s allegations is that a guy named Land hired Bennett in 2011 to represent him in a breach-of-contract suit…
and the development of a potential federal Civil Rights action. The latter matter would involve Land’s belief that he is the subject of a campaign of covert surveillance by unnamed individuals, possible federal agents. Although Land’s beliefs are fantastical on their face and other attorneys had declined to represent him, [Robert S. Bennett] took on Land as a client. Respondent demanded, and Land paid, a $50,000 retainer.
Land and [Robert S. Bennett] entered into an Attorney Retainer and Dispute Resolution Agreement. At the time the Agreement was signed, Land requested that invoices be emailed to him, since he would be traveling extensively for the next several months. Respondent did e-mail the first invoice, but mailed subsequent invoices to the residence of Land’s parents. As a result, Land did not see the invoices for several months. Eventually Land became aware that Respondent had invoiced him for approximately $75,000.00 in legal fees, despite the fact that there had been no significant progress on the Lambert Lawsuit. And given the nature of the second matter, no progress was in the realm of reasonable possibility.
Land fired Bennett and disputed the invoices. Per the contract, the dispute was arbitrated—arbitration was to be “binding, conclusive, and non-appealable.” The arbitration panel denied Bennett the additional $25k that he sought in fees, and awarded Land $27,500 as a partial refund of the $50,000 that he had paid up front.
Bennett asked for the panel’s award to be modified. The panel denied the request (order—interesting—PDF).
Land filed suit in District Court, the award was confirmed. Despite the bindingness of the arbitration (per the contract that he, presumably, wrote) Bennett appealed1 to the First Court of Appeals (docket), which affirmed the trial court judgment in June (PDF), then moved for rehearing and for en banc reconsideration, both of which were denied two days ago. If he’s true to form, he’ll file a petition for review in the Texas Supreme Court, and that will be denied.
Something the Commission leaves out is that while the appeal was pending in the First Court of Appeals Bennett filed, and then nonsuited, a fraud suit (petition, PDF format) against Land.
I was initially appalled by the allegation that Bennett took fifty grand from a guy saying things suggestive of paranoid delusion.2
Then I thought, “well, why the hell not?” If it gives a little peace to the client to have a “lawyer” “working on” his “potential civil-rights case,” that’s worth something. Who’s to say it isn’t worth $50,000? The more the clients pay, the happier they are; $50,000 worth of placebo lawyering might do more good for the client than anything else anyone could do for free.3 And while the client may not be on the same wavelength as most of us, that’s no reason to think that he’s not competent to enter into a contract.
I struggle with what to tell the folks who call because the government is scanning their brainwaves and posting their thoughts on the side of trucks. The best I’ve been able to do is earnestly recommend that they seek mental-health care; that generally makes them think that I’m a “scanner” too, so it is a lousy solution.
Maybe it’d be better to take a reasonable fee to represent the client in the matter, and then give him the same advice, which might be more palatable when it’s paid-for than when it is free.
So while the Commission for Lawyer Discipline clearly finds Robert S. Bennett’s having taken money to look into a civil-rights lawsuit against the surveilleurs distasteful enough to mention in its court filings,4 it is, in itself, neither a violation of the rules nor unethical.
To give Robert S. Bennett even more benefit of the doubt, we don’t know how much of the $75,000 fee was for work on the Lambert Lawsuit, and how much was for work on the surveillance matter. If he took on the Lambert Lawsuit and agreed to help Mr. Land with the surveillance matter just to give Mr. Land some peace of mind, he might even be commended.
The arbitrator’s $50,000 judgment in favor of Mr. Land does cast some doubt on this benefit-of-the-doubt interpretation, and the arbitrator’s interesting order above casts even more. But in any case the Commission doesn’t directly allege that Bennett did something wrong in contracting to help Mr. Land with his surveillance problem.
The rules that the Commission alleges Robert S. Bennett violated are:
- 1.01(b)(1) (“In representing a client, a lawyer shall not…neglect a legal matter entrusted to the lawyer.”);
- 1.03(b) (“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”);
- 1.15(d) (“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a clients interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation.”);
- 2.01 (“In advising or otherwise representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”);
- 3.01 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that is not frivolous.”); and
- 3.02 (“In the course of litigation, a lawyer shall not take a position that unreasonably increases the costs or other burdens of the case or that unreasonably delays resolution of the matter.”).
Essentially, the State Bar’s claim seems to be that Bennett violated the disciplinary rules by litigating the fee dispute post-arbitration. For all the reasons that might exist to discipline Robert S. Bennett, I don’t see that particular claim sticking.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) .)
O Lillian Hardwick, where art thou? ↩
Or that were, in 2011, suggestive of paranoid delusion. Two years ago the idea that the government was listening to all of our phone calls and reading all of our emails seemed absurd to most of us. It turns out that Land was the subject of a campaign of covert surveillance by federal agents, as are we all. ↩
The psychiatry industry explained. ↩
To the embarrassment or detriment, perhaps, of Mr. Land ↩
In Cohen v. California the U.S. Supreme Court said:
The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.
That the government can shut off discourse to protect others from hearing it if substantial privacy interests are being invaded in an essentially intolerable manner is mere dicta.1 While the Supreme Court has quoted that language since 1971 in cases invalidating speech-restricting statutes, it has not, in the forty-two years since Cohen, upheld a speech-restricting statute based on this theory.
In other words, while it has invalidated numerous statutes that restricted speech that did not invade on substantial privacy interests in an essentially intolerable manner, the U.S. Supreme Court has never upheld a statute because it restricted such speech.
New York’s Appellate Term, Second Department in People v. Smith, and the Texas Court of Criminal Appeals in Scott v. State, have.
The New York statute at issue in People v. Smith, Penal Law, § 240.30, subd 2, forbids “mak[ing] a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication,” “with intent to harass, annoy, threaten or alarm.”
The Texas statute at issue in Scott v. State, Section 42.07(a)(4) of the Texas Penal Code, is worse, forbidding “mak[ing] repeated telephone communications…in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass or offend,” “with intent to harass, annoy, alarm, abuse, torment, or embarrass.”
Both Smith and Scott based their justifications of the speech restrictions on Cohen v. California’s “essentially intolerable manner” language.2 When these courts upheld their respective statutes they upheld every part of them. So they held that “torment” is essentially intolerable, which might be fair, but also that annoyance, embarrassment, and offense are essentially intolerable.
If the Texas Court of Criminal Appeals is right, Texans can’t tolerate annoyance, embarrassment, or offense. Which is ridiculous. Tolerating these things is part of being a grownup. Annoyance, embarrassment, and offense are legitimate and potent rhetorical and political weapons.3 In fact, the U.S. Supreme Court has explicitly affirmed the protected status of embarrassing speech,4 annoying speech,5 and offensive speech.6
So Mr. Scott appealed to the U.S. Supreme Court, right? And the Supremes struck down the statute? Sadly, no. The lawyer who appealed the case to the Court of Criminal Appeals appealed to the Supreme Court, which denied certiorari. The denial of certiorari is not approval of the underlying court’s opinion. The Supreme Court can’t be blamed for denying cert—the Scott opinion is muddled.7 But now every defendant charged with violating Section 42.07 is hindered by a Court of Criminal Appeals opinion holding the statute constitutional. Until the U.S. Supreme Court overturns some other state’s annoying–embarrassing–or–offensive harassment statute or a Texas lawyer makes the leap from intermediate court of appeals to Supreme Court, Texas courts will keep enforcing the statute.
The Supreme Court could eventually uphold such statutes—possibly the requirement that the communications be made repeatedly (more than once?) and over the telephone will save this manner-and-means restriction from unconstitutionality under the “intermediate scrutiny” standard of review.8 But not for the reasons used by the Court of Criminal Appeals—not because telephone communication is not “communication,” and not because embarrassment, annoyance, and offense are essentially intolerable, either to Texans or to anyone else.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) .)
Mere dicta, or just dicta, is something in a court opinion that was not necessary to the decision of the case. ↩
Scott also based its justification on the notion that harassment, annoyance, alarm, abuse, torment, embarrassment, and offense are not “communication,” which is funny given that the statute forbids telephone communications. ↩
“The squeaky wheel gets the grease”? That’s annoyance at work. ↩
See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982) (“Speech does not lose its protected character … simply because it may embarrass others or coerce them into action”). ↩
Norwell v. Cincinnati, 414 U.S. 14 (1973). ↩
Carey v. Population Services Int’l, 431 U.S. 678, 701 (1977). ↩
Perhaps because the case was poorly briefed: “On direct appeal, Scott reiterated the arguments that he had made in the trial court. In addition, he argued, for the first time, that: (1) § 42.07(a)(4) and (a)(7) were both unconstitutionally vague as applied to his conduct (although he failed to explain how they were unconstitutionally vague as applied to his conduct); and (2) § 42.07(a)(4) and (a)(7) were both unconstitutionally vague and overbroad because the terms ‘abuse,’ ‘torment,” ‘embarrass,’ and ‘repeated’ included in those statutory subsections were ‘inherently vague.’” ↩
Under intermediate scrutiny, the State must show that the law being challenged furthers an important government interest in a way that is substantially related to that interest. ↩
McClelland was driving east on Clay in the far left lane, Cannon said. He came to a stop before turning left onto northbound Travis on a green light, looked into the intersection and didn’t see anyone in the crosswalk.
“He made the left turn and suddenly an adult male stepped off the curb into a moving lane of traffic,” Cannon said.
Contrast that HPD account of Chief McLelland’s collision with a pedestrian, and the video, released a couple of weeks later:
It is untrue that McLelland “came to a stop before turning left.” It is also untrue that his victim “suddenly stepped off the curb into a moving lane of traffic”
McLelland also claims that he was not texting or on the phone when he hit the pedestrian. This, I doubt.
This is not Chief McLelland being treated specially because he is the chief. It’s Chief McLelland receiving special treatment because he is a cop. His victim is lucky the cops responding didn’t plant a gun and dope on him.
McLelland accepted a one-day suspension. That’s appropriate for the accident, which could have happened to anyone. It’s not appropriate for the coverup. McLelland’s account of the accident, proven false by video, calls into serious question his fitness for the job.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) .)
On the morning of Friday, August 20, 2010, when Senior Judge Robert D. Jones was sitting in Harris County’s 337th District Court, lawyers saw him revoke a defendant’s bond and jail her because her lawyer was absent. The defendant remained in jail until Monday, when the sitting judge in that court returned and reinstated her bond.
In January 2011 the State dismissed all charges against the defendant.
Six months later the Harris County Criminal Lawyers Association filed a complaint (PDF) against Judge Jones with the Texas Commission For Judicial Conduct (HCCLA Complaint re Judge Robert Jones 071411).
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In early 2012 Nahdiah Hoang from the Commission called Earl Musick, the past president whose name was on the complaint, suggesting that it was okay for a judge to jail a defendant for coming to court without a lawyer. Musick wrote Hoang a letter explaining the law, and sent an additional affidavit describing Jones’s conduct (Robert Jones– Letter to Nahdiah):
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This week the Harris County Criminal Lawyers Association received a letter from the Commission: “After a thorough review and investigation of the issues you raised
in your complaint, the Commission voted to issue the judge a private sanction” (Robert Jones Private Sanction):
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They can’t tell us what the sanction was, so we’ll have to imagine it:
Okay, these criminal-defense lawyers are going to be a real pain in the ass if we don’t, so we better sanction Bob. I move that Bob buys the next round. All in favor? Aye. All opposed? Motion passes. I’m so sorry, Bob.
Note the last paragraph of the Commission’s letter:
Please continue to assist us in our efforts to maintain the high standards of the Texas judiciary by honoring the rules of confidentiality that govern these proceedings.
“The high standards of the Texas judiciary” are a fiction.1 Texas judges are elected by voters who do not (I say this as someone who got 1.3-plus million votes in the last election) have high standards for judges.
Think of the worst elected official you have ever heard of, and the best elected official you have ever heard of. You’ll find a comparably wide range in the elected Texas judiciary. Some of them are excellent, some really stink, and most are in the fat part of the bell curve, humans with good intentions (though often misguided), feet of clay, and moderate intelligence.
The Commission for Judicial Conduct is not in the business of “maintaining the high standards of the Texas judiciary” because those standards do not exist. Instead, it is in the business of maintaining the illusion of high standards.
The Commission for Judicial Conduct preserves the illusion of high standards by covering up judicial misconduct—by providing a plausible-seeming outlet for complaints against judges, dragging its feet, and then making everything it can disappear. Even when it takes action, as here, it tries to hush things up:
Please continue to assist us in our efforts to maintain the high standards of the Texas judiciary by honoring the rules of confidentiality that govern these proceedings.
The rules of confidentiality that govern the proceedings do not bind the complainant. Some complainants might, if they were told this, still help the Commission hush up judicial misconduct, but most probably would not—the point of filing a complaint is getting something done, and privately requiring Bob to buy the Commission’s next round of Jäger Bombs is not a satisfactory result. It has no deterrent effect on Bob, much less on the rest of the judiciary.
Because most complainants would not voluntarily become complicit with the Commission in burying judges’ misconduct, the Commission misleads complainants about the rules. It doesn’t outright lie—it doesn’t tell complainants to “follow” rules that don’t apply to them, and complainants could arguably “honor” rules that they don’t have to follow—but it certainly deceives.
Laypeople (I suspect that most complainants are laypeople) unfamiliar with the rules might think that there is a rule requiring them not to talk about the complaint. This is so far from the law that Seana Willing, the Coverup’s Executive Director, who is both a public official and a lawyer and who signed the letter, ought to be ashamed.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 first wrote “myth,” but some myths are true. ↩