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From 1791 to the present... the First Amendment has permitted restrictions upon the content of speech in a few limited areas, and has never included a freedom to disregard these traditional limitations. These historic and traditional categories long familiar to the bar-including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct-are well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.

U.S. v. Stevens.

Although the First Amendment stands against any freewheeling authority to declare new categories of speech outside the scope of the First Amendment, the Court has acknowledged that perhaps there exist some categories of speech that have been historically unprotected but have not yet been specifically identified or discussed in our case law. Before exempting a category of speech from the normal prohibition on content-based restrictions, however, the Court must be presented with persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription.


Against My Better Judgment

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"Enjoy the lawsuit I'm in the process of filing against you, psycho, arrogant, inferiority complex-ridden moron."

-Matthew, then.

"I was just trying to make a living. I didn't intend to defraud anyone. I was desperate, and desperation knows no boundaries."


Thanks to the several blog posts I've written about crooked lawyer-marketing company R.W. Lynch, I get about a call a month from some lawyer who signed a contract with R.W. Lynch before doing due diligence, and wants to know how to get out of it.

Literally. The. Potential.

Suing crooked marketing companies is not one of my fields of practice. If you know someone who would be interested, especially if they have some experience with R.W. Lynch, have them drop me an email.


Never Argue Angry

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I've got a case against a likely-soon-to-be-former member of the Smith County, Texas District Attorney's Office in which I'm challenging the constitutionality of Texas's revenge-porn statute, section 21.16(b) of the Texas Penal Code.

Court of Appeals? That's in the basement.

It is one of several such appeals I have pending. I've had oral argument in the Waco Court of Appeals (not recorded) and Houston's First Court of Appeals (video), and I've got a case pending in the Beaumont Court of Appeals, but that court won't give oral argument because it already knows all about free-speech law. ((Ugh.)) This morning I had argument in the Tyler Court of Appeals (not recorded).


At 12:15 there will be an "Award Presentation Honoring Sens. Whitmire and Huffman; Reps. Smithee and Herrero and the Honorable J. Keller."

I googled those names, and the first thing that I found that they all have in common is membership in the Timothy Cole Exoneration Review Committee.



[Edited to add: I have been asked whether this is fictional. The dialogue is not. The first judge's comments can be found here and here. The interaction between the second judge and the mentally ill defendant is from this appellate opinion.]


We see a JUDGE, sitting comfortably behind his desk, talking to a REPORTER, who is taking diligent notes.


This is no less true of judges than other lawyers.Free-speech law has developed a lot in 30 years; most of that change has been in the last decade. Occasionally we'll get an oral argument in which one of the judges knows has read Alvarez, Stevens, Reed, Brown, and some of the other post-2009 Supreme Court free-speech cases, and it's a real joy.

This is not one of those cases. Here the State in its brief cited no Supreme Court more recent than 1989.

Imagine the discussion we could have had if the judges had read some Supreme Court First Amendment cases since law school!

Declare Victory and Go Home

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The Fifth Circuit has ruled on the Harris County misdemeanor judges' 5-million-dollar appeal of Judge Rosenthal's injunction requiring them to stop using bail as an instrument of oppression by denying personal bonds to indigent people.

The Fifth Circuit vacated the injunction, requiring two changes:

  1. To give the courts 48, rather than 24 hours to make an individual bail assessment; and


The Chase Bank Whodunnit

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12/13/2017 in Hong Kong, I realize that what I thought was the PIN for debit card is not the PIN for the debit card.

I call Chase to get the debit card PIN. I make the call from my hotel room.

I give Chase debit-card services all identifying information for my debit card, including mother's maiden name.


One More Thing

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Art. 11.12. WHO MAY PRESENT PETITION. Either the party for whose relief the writ is intended, or any person for him, may present a petition to the proper authority for the purpose of obtaining relief.

Not only could a DA's Office ask the court to appoint counsel under article 11.074 of the Texas Code of Criminal Procedure, but they could also file an application for writ of habeas corpus on behalf of a person unlawfully convicted.

They could do so with or without the person's consent, and nobody is in a better position than the DA's Office to know whether a defendant would benefit from habeas relief-the only reason a defendant should not seek relief from an unlawful conviction is if the DA's Office intends to file other charges when habeas relief is granted, and only the DA's office knows for sure if it intends that.


Dishonest but Undivided

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Integrity (N)

  1. The quality of being honest and having strong moral principles.

  2. The state of being whole and undivided.


The term prior restraint is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.

Alexander v. United States.

A criminal statute restricting speech based on its content also forbids certain communications in advance of the time that such communications are to occur.


Failing to make the case that revenge porn falls into one of the categories of unprotected speech listed by the Supreme Court in its recent cases (notably Stevens and Alvarez), the State does some jailhouse lawyering.

"Jailhouse lawyering" is bad legal analysis, usually involving taking some snippet of language out of context and loading it with great significance.

There are some competent lawyers in prison law libraries, but there are also a lot of people who want to get a certain result and can read, but don't understand how the law actually works.


Having failed to justify section 21.16(b) of the Texas Penal Code as an obscenity statute, the State seeks hope elsewhere in the Supreme Court's enumeration of categories of historically unprotected speech.

Aha! Speech incident to criminal conduct!

Section 21.16(b) restricts only speech causing harm, and that's criminal conduct, right?


Failing to convince the court that section 21.16(b) of the Texas Penal Code does not restrict speech, and failing to convince the court that section 21.16(b) of the Texas Penal Code is not a content-based restriction, the State is in trouble. Recent Supreme Court authority-Stevens in 2010, Alvarez in 2012-has made clear that speech is protected from content-based restriction unless it falls into a category of historically unprotected speech.

The State remembers something about obscenity. It looks at its law-school conlaw textbook ((Just kidding. Actually Wikipedia.)) and sees:

The Miller test was developed in the 1973 case Miller v. California. It has three parts:


All But Their Four Fastest.

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Our Mission: To receive, analyze and preserve physical and digital evidence while adhering to the highest standards of quality, objectivity and ethics.

(Houston Forensic Science Center.)

HFSC will redo the forensic analysis in the homicide case to ensure law enforcement and prosecutors have accurate, reliable information that will assist in their investigation.

(KHOU, with annoying autoplay video.)


The Defections Begin

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I have butted heads with Mike Fields, judge of Harris County Criminal Court at Law Number 14, more than once, and found him a worthy adversary. He is a big guy, imposing both physically and in personality, and he'll push you around if you let him. That rubs a lot of people the wrong way. But if you push back, he will yield when you show him he's wrong, ((When we've butted heads, he always has been wrong. But I'm willing to consider the possibility that he won't always be.)) and shake hands afterward.

Now, citing his conscience, Fields has defected from the judges' appeal of the bail lawsuit. (As I had said it was time to do.)

The appeal continues, but Fields's defection gives the other fourteen judges who remain in it some both motivation and cover to defect as well. It's like a multiple-defendant federal criminal trial: the fewer defendants remain standing, the more quickly the numbers dwindle. Nobody wanted to be the first to defect (that's the cover) but everybody really doesn't want to be the last (that's the motivation).


Word of the Year, 2018

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Every year ((Starting in 2017.)) instead of making resolutions I choose a word of the year. The word of the year is a guiding principle, something to focus on to make my world better.

Last year's word was "Attention." It was a huge success: by paying attention to attention I was able to eliminate many unrewarding demands on my attention-to stop paying attention to things that didn't give me a return on that payment. Attention is limited, and by paying less attention to those things that offered no reward, I was able to pay more attention to those things that offered rewards.

I mostly stopped watching TV (once I was paying attention to attention, it caused my brain stress to be in situations in which my attention was being deliberately manipulated and arbitraged), bailed on Twitter, read more books, turned off pointless annoyances, read less news, blocked emails from a couple of crazies on the local criminal-defense list, and served my clients and my family better.


Scott Greenfield has a post this morning that highlights a journalist's paraphrase, in an interview, of her subject's words.

This has become a ubiquitous problem, in media, on social media, everywhere (which is why it's ubiquitous). You say "it's snowing," and someone else responds, "so you're saying it's the worst blizzard ever?" Obviously not, but that puts you in the position of either responding by saying the obvious, "no, that's not what I said," and creating the appearance of defensiveness plus contributing to your statement being hijacked and taken down some dark, orthogonal path you never intended nor desired to go.

When I've taught jury selection lately, one of the open questions I've left is whether, in actively feeding back to a juror something that she has said, the lawyer should parrot or paraphrase.


Defection Time

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The Hearing Officers' testimony that they do not "know" whether imposing secured money bail will havethe effect of detention in any given case, e.g., Hearing Tr. 4-1:141, 4-2:16, and their testimony thatthey do not intend that secured money bail have that effect, is not credible.

That's from U.S. District Judge Lee H. Rosenthal's April 2017 Memorandum and Opinion Setting Out Findings of Fact and Conclusions of Law in ODonnell v. Harris County et al.

Having a U.S. District Judge call your testimony "not credible" is never good. It is especially bad if you are a defendant, a government employee, and a magistrate. The two hearing officers who testified, according to the docket, were Blanca Villagomez and Eric "I didn't know if it would be good for my career" Hagstette.

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