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2016.005: Conservatism in Court

Blog - Thu, 02/25/2016 - 12:14

My argument in the Supreme Court of Georgia had me reflecting on three categories of conservatism: the social, the political, and the judicial.

In Georgia, we were dealing with a law that forbade an adult communicating certain content (including descriptions of nudity) to a child online with the intent to arouse or satisfy the sexual desire of the adult or the child.

While socially conservative libertarians can lay claim to the “political conservative” tag with just as much good faith as socially conservative authoritarian, I view political conservatism as lying closer to the authoritarian end of that axis. It may be that “politically conservative” has been used by so many disparate philosophies that it is devoid of meaning, but the political conservative would, in my view, view the suppression of perversion as a valid governmental goal.

The social conservative might hear about the law and first think, “that’s outrageous; nobody needs to be doing that,” then think, “where are the parents in this?” That the speech is repugnant might mean to the social conservative that the government should publish it, but not necessarily: she might see this law as both a damning indictment of modern society’s weakening of the family unit. She might also think that by criminalizing repugnant speech the government reduces parents’ motivation to parent. My argument in Texas was a socially conservative argument: it is parents’ job to protect their own children.

The judicial conservative would try to set aside his own political and social preferences and follow precedent. Precedent in this case is U.S. v. Stevens, with its stark rejection of a harm-vs.-good balancing test and its categorial ((Yes, I went there.)) imperative. The Stevens question is whether the forbidden speech falls into a recognized category of historically unprotected speech. Stevens leaves open the possibility that courts might recognize a hitherto unrecognized category of historically unprotected speech, but not the possibility that the state might simply decree such a category based on a cost-benefit analysis.

My argument in Georgia was a judicially conservative argument. The speech forbidden by 16-12-100.2(e) falls into no recognized category of historically unprotected speech. The State admitted at oral argument that it falls into no hitherto unrecognized category either.1 So the only judicially conservative action to be taken is to strike 16-12-100.2(e).

By taking the judicially conservative course, the Georgia Supreme Court will also be taking a socially conservative course, preserving parents’ right and responsibility to see to the education and training of their own children.

What it will not be doing is taking the politically conservative course, if “political conservatives” are right-wing authoritarians, but those guys are assholes anyway.

  1. In fact, in 1791 the age of consent was 12, so what we now consider children could not only be sexually aroused but also be married 

2016.005: Conservatism in Court

Mark's Blog: Defending People - Thu, 02/25/2016 - 12:14

My argument in the Supreme Court of Georgia had me reflecting on three categories of conservatism: the social, the political, and the judicial.

In Georgia, we were dealing with a law that forbade an adult communicating certain content (including descriptions of nudity) to a child online with the intent to arouse or satisfy the sexual desire of the adult or the child.

While socially conservative libertarians can lay claim to the “political conservative” tag with just as much good faith as socially conservative authoritarian, I view political conservatism as lying closer to the authoritarian end of that axis. It may be that “politically conservative” has been used by so many disparate philosophies that it is devoid of meaning, but the political conservative would, in my view, view the suppression of perversion as a valid governmental goal.

The social conservative might hear about the law and first think, “that’s outrageous; nobody needs to be doing that,” then think, “where are the parents in this?” That the speech is repugnant might mean to the social conservative that the government should publish it, but not necessarily: she might see this law as both a damning indictment of modern society’s weakening of the family unit. She might also think that by criminalizing repugnant speech the government reduces parents’ motivation to parent. My argument in Texas was a socially conservative argument: it is parents’ job to protect their own children.

The judicial conservative would try to set aside his own political and social preferences and follow precedent. Precedent in this case is U.S. v. Stevens, with its stark rejection of a harm-vs.-good balancing test and its categorial ((Yes, I went there.)) imperative. The Stevens question is whether the forbidden speech falls into a recognized category of historically unprotected speech. Stevens leaves open the possibility that courts might recognize a hitherto unrecognized category of historically unprotected speech, but not the possibility that the state might simply decree such a category based on a cost-benefit analysis.

My argument in Georgia was a judicially conservative argument. The speech forbidden by 16-12-100.2(e) falls into no recognized category of historically unprotected speech. The State admitted at oral argument that it falls into no hitherto unrecognized category either.1 So the only judicially conservative action to be taken is to strike 16-12-100.2(e).

By taking the judicially conservative course, the Georgia Supreme Court will also be taking a socially conservative course, preserving parents’ right and responsibility to see to the education and training of their own children.

What it will not be doing is taking the politically conservative course, if “political conservatives” are right-wing authoritarians, but those guys are assholes anyway.

  1. In fact, in 1791 the age of consent was 12, so what we now consider children could not only be sexually aroused but also be married 

2016.004: Why Criminal First Amendment Cases Matter

Blog - Thu, 02/25/2016 - 11:06

Chris was charged in Texas with Online Solicitation of a Minor under Section 33.021(b) of the Texas Penal Code. He hadn’t tried to solicit anyone, but he had allegedly communicated sexually explicit words to a minor with the intent to sexually arouse or gratify himself or the minor.

Jack was charged in Georgia with Obscene Internet Contact with a Child under Georgia Code 16-12-100.2(e). He hadn’t had obscene contact with anyone, but had allegedly communicated sexually explicit words to a child with the intent to sexually arouse or satisfy himself or the child.

I stood up in the highest courts of Texas and Georgia to argue that 33.021(b) and 16-12-1002(e) violated the First Amendment by forbidding a real and substantial amount of protected speech. Texas agreed with me; we will find out by July whether Georgia does.

You might ask yourself, “how is that protected speech?”

The boiled-down judicially conservative answer is that speech is protected unless it falls into a recognized category of historically unprotected speech, and the speech forbidden by the Texas and Georgia statutes falls into no such category. (The particular question didn’t arise in Texas; in Georgia the State even admitted that no such category existed. In light of the State’s admission, upholding the statute will require judicial activism on the part of the Georgia Supreme Court.)

“Okay,” you might say, “but the alleged speech is still gross. So—Constitutional originalism aside—why should adult speech to children that is intended to sexually arouse or gratify be protected? Why does it matter to me?”

Anti-porn outfit Morality in Media knows why it matters to you. This organization (which after half a century changed its name to National Center on Sexual Exploitation to cash in on leftwing social-justice money) filed an amicus brief in the Georgia case: it knows that allowing states to forbid speech based on its lawful intent would kick in the door on the First Amendment and allow the State to forbid any speech.

If you forbid saying “X” with lawful intent Y, nobody is going to say “X” for fear that people will think he has intent Y, and indict him.

So if the State can forbid sexually explicit communications to children with the intent to arouse or gratify, it can forbid other communications to children with the intent to arouse or gratify. For example:

It is a felony to criticize a prosecutor with intent to arouse or satisfy the sexual desire of a child.

You laugh. Sure, criticism of a prosecutor with intent to arouse or satisfy the sexual desire of a child is not widespread, but it happens, and when a child is aroused by an adult, the child is harmed. The State can and must act to prevent this harm. So says National Center on Sexual Exploitation.

When a person has criticized a prosecutor, who decides whether he has spoken with the intent to arouse or satisfy the sexual desire of a child? The prosecutor decides1 who is arrested and charged, who has to bail and hire a lawyer, who faces a jury and possible imprisonment for criticizing him. You can bet the rap, but you can’t beat the ride.

Which is fine, because we trust prosecutors. And children must be protected.

Except that we don’t trust prosecutors. So anyone facing the choice of criticizing the prosecutor under this regime would be well-advised to keep his mouth shut.

National Center on Sexual Exploitation‘s mission is not to eliminate criticism of prosecutors but to eliminate pornography. So if you like pornography, or you don’t like pornography but you like something that National Center on Sexual Exploitation‘s right-wing harpies think is pornography, or if your tastes in entertainment coincide exactly with said harpies’ tastes but you still think the government shouldn’t punish people whose tastes differ from yours, that’s why it matters to you.

  1. We all know how much independence grand juries show. 

2016.004: Why Criminal First Amendment Cases Matter

Mark's Blog: Defending People - Thu, 02/25/2016 - 11:06

Chris was charged in Texas with Online Solicitation of a Minor under Section 33.021(b) of the Texas Penal Code. He hadn’t tried to solicit anyone, but he had allegedly communicated sexually explicit words to a minor with the intent to sexually arouse or gratify himself or the minor.

Jack was charged in Georgia with Obscene Internet Contact with a Child under Georgia Code 16-12-100.2(e). He hadn’t had obscene contact with anyone, but had allegedly communicated sexually explicit words to a child with the intent to sexually arouse or satisfy himself or the child.

I stood up in the highest courts of Texas and Georgia to argue that 33.021(b) and 16-12-1002(e) violated the First Amendment by forbidding a real and substantial amount of protected speech. Texas agreed with me; we will find out by July whether Georgia does.

You might ask yourself, “how is that protected speech?”

The boiled-down judicially conservative answer is that speech is protected unless it falls into a recognized category of historically unprotected speech, and the speech forbidden by the Texas and Georgia statutes falls into no such category. (The particular question didn’t arise in Texas; in Georgia the State even admitted that no such category existed. In light of the State’s admission, upholding the statute will require judicial activism on the part of the Georgia Supreme Court.)

“Okay,” you might say, “but the alleged speech is still gross. So—Constitutional originalism aside—why should adult speech to children that is intended to sexually arouse or gratify be protected? Why does it matter to me?”

Anti-porn outfit Morality in Media knows why it matters to you. This organization (which after half a century changed its name to National Center on Sexual Exploitation to cash in on leftwing social-justice money) filed an amicus brief in the Georgia case: it knows that allowing states to forbid speech based on its lawful intent would kick in the door on the First Amendment and allow the State to forbid any speech.

If you forbid saying “X” with lawful intent Y, nobody is going to say “X” for fear that people will think he has intent Y, and indict him.

So if the State can forbid sexually explicit communications to children with the intent to arouse or gratify, it can forbid other communications to children with the intent to arouse or gratify. For example:

It is a felony to criticize a prosecutor with intent to arouse or satisfy the sexual desire of a child.

You laugh. Sure, criticism of a prosecutor with intent to arouse or satisfy the sexual desire of a child is not widespread, but it happens, and when a child is aroused by an adult, the child is harmed. The State can and must act to prevent this harm. So says National Center on Sexual Exploitation.

When a person has criticized a prosecutor, who decides whether he has spoken with the intent to arouse or satisfy the sexual desire of a child? The prosecutor decides1 who is arrested and charged, who has to bail and hire a lawyer, who faces a jury and possible imprisonment for criticizing him. You can bet the rap, but you can’t beat the ride.

Which is fine, because we trust prosecutors. And children must be protected.

Except that we don’t trust prosecutors. So anyone facing the choice of criticizing the prosecutor under this regime would be well-advised to keep his mouth shut.

National Center on Sexual Exploitation‘s mission is not to eliminate criticism of prosecutors but to eliminate pornography. So if you like pornography, or you don’t like pornography but you like something that National Center on Sexual Exploitation‘s right-wing harpies think is pornography, or if your tastes in entertainment coincide exactly with said harpies’ tastes but you still think the government shouldn’t punish people whose tastes differ from yours, that’s why it matters to you.

  1. We all know how much independence grand juries show. 

2016.003 Memento Mori

Blog - Tue, 02/23/2016 - 14:40

I’m writing this from 30,000 feet in the air, flying home to Houston from Atlanta where yesterday I argued a First Amendment case before the Georgia Supreme Court. Most lawyers never get to argue before their own State’s highest court, much less another state’s. Georgia was very hospitable to me. Brunswick criminal-defense lawyer Jason Clark1 and Savannah criminal-defense lawyer Cris Schneider, my local counsel on the case, put me up in a nice hotel, fed me good food, and—most importantly—made sure I didn’t have to worry about getting where I had to be when I had to.

In addition to Jason and Cris, I made other new friends in Georgia: Keith Lee, Andrew Fleischman, Jon Rapping, Scott Key, Esther Panitch, Alan Begner, and my opposing counsel Jay Sekulow (who I hope will be on the right side of the First Amendment the next time I work with him). I got to see my old Trial Lawyers College friend Nick Lotito. My old buddies Scott Greenfield and Brian Tannebaum flew in from New York and Miami to hang out and help me prepare for argument (I don’t need a moot court; I just need three or four smart lawyers to try to crush any pride I might have had in my argument over coffee).

The court didn’t have a lot of questions, and I don’t work great with cold panels. Give me a hostile panel over a cold one any day. A couple of times I stumbled because I hadn’t prepared to lecture the court for twenty minutes; finally I just shut up and enjoyed the silence for a moment. The one justice who had questions was David Nahmias, a former law clerk to Justice Scalia, former U.S. Attorney for the Northern District of Georgia, and by all accounts a brilliant guy—my kind of audience. He had the right questions both for me and for the State; I believe that Nahmias understood the argument better than the State, and at least as well as I understand it, which means that I didn’t obfuscate it too much in my brief.

Of course I have no idea what the court will do, but I know that I did a hell of a job (watch it here). Going home in triumph feels good.

Yet I remember the many times I have flown home from out-of-town cases feeling whipped, with my tail between my legs. And I remember that I could feel whipped rather than triumphant tomorrow, and that my next argument in the court of appeals (Thursday in the 14th) could be a total disaster. Also I remember that I am not my cases, so that I am the same guy when I am triumphant as when I am not.

Every victorious returning general needs that slave whispering in his ear: remember that you must die.

  1. For the Texas criminal-defense lawyers: Jason’s a Georgia version of Tony Vitz. 

2016.003 Memento Mori

Mark's Blog: Defending People - Tue, 02/23/2016 - 14:40

I’m writing this from 30,000 feet in the air, flying home to Houston from Atlanta where yesterday I argued a First Amendment case before the Georgia Supreme Court. Most lawyers never get to argue before their own State’s highest court, much less another state’s. Georgia was very hospitable to me. Brunswick criminal-defense lawyer Jason Clark1 and Savannah criminal-defense lawyer Cris Schneider, my local counsel on the case, put me up in a nice hotel, fed me good food, and—most importantly—made sure I didn’t have to worry about getting where I had to be when I had to.

In addition to Jason and Cris, I made other new friends in Georgia: Keith Lee, Andrew Fleischman, Jon Rapping, Scott Key, Esther Panitch, Alan Begner, and my opposing counsel Jay Sekulow (who I hope will be on the right side of the First Amendment the next time I work with him). I got to see my old Trial Lawyers College friend Nick Lotito. My old buddies Scott Greenfield and Brian Tannebaum flew in from New York and Miami to hang out and help me prepare for argument (I don’t need a moot court; I just need three or four smart lawyers to try to crush any pride I might have had in my argument over coffee).

The court didn’t have a lot of questions, and I don’t work great with cold panels. Give me a hostile panel over a cold one any day. A couple of times I stumbled because I hadn’t prepared to lecture the court for twenty minutes; finally I just shut up and enjoyed the silence for a moment. The one justice who had questions was David Nahmias, a former law clerk to Justice Scalia, former U.S. Attorney for the Northern District of Georgia, and by all accounts a brilliant guy—my kind of audience. He had the right questions both for me and for the State; I believe that Nahmias understood the argument better than the State, and at least as well as I understand it, which means that I didn’t obfuscate it too much in my brief.

Of course I have no idea what the court will do, but I know that I did a hell of a job (watch it here). Going home in triumph feels good.

Yet I remember the many times I have flown home from out-of-town cases feeling whipped, with my tail between my legs. And I remember that I could feel whipped rather than triumphant tomorrow, and that my next argument in the court of appeals (Thursday in the 14th) could be a total disaster. Also I remember that I am not my cases, so that I am the same guy when I am triumphant as when I am not.

Every victorious returning general needs that slave whispering in his ear: remember that you must die.

  1. For the Texas criminal-defense lawyers: Jason’s a Georgia version of Tony Vitz. 

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