Possibly our favorite niche practice at Bennett & Bennett is criminal free-speech defense: the defense of people charged with crimes for speech. Mark is one of America’s preeminent experts in the field of defending free speech in criminal court, successfully challenging penal statutes as overbroad violations of the First Amendment across Texas and elsewhere (most notably in Georgia). Our free-speech litigation has freed hundreds of people from prison, from probation, and from sex-offender registration.
What is Speech?
“Speech” is not just spoken words. It’s not just spoken or written words. Speech includes all sorts of conduct intended to convey a message. For example, burning flags, wearing armbands, taking pictures: all are speech.
Speech includes both protected speech (speech that cannot lawfully be punished) and unprotected speech (speech that the State can punish without running afoul of the Constitution). Even unprotected speech is speech, but it is speech that was historically not considered worthy of constitutional protection. In legal terms, it is speech in one of several narrow recognized categories of historically unprotected speech.
Categories of Historically Unprotected Speech
The Supreme Court has recognized these categories of historically unprotected speech:
- Advocacy intended, and likely, to incite imminent lawless action;
- Speech integral to criminal conduct;
- “Fighting words”;
- Child pornography;
- True threats; and
- Speech presenting some grave and imminent threat the government has the power to prevent — but don’t get too excited; this is not a catchall: “a restriction under the last category is most difficult to sustain.”
Speech outside of these categories is protected by the First Amendment. And while the Supreme Court could recognize additional categories, it has recently shown itself reluctant to do so.
Current Speech Laws
Most states already have criminal laws forbidding all speech within these recognized categories of historically unprotected speech: Every state has a law against child pornography, a law against fraud, a law against assault by threat, a law against obscenity, and so forth. As a result, every new law that legislatures pass criminalizing speech is likely unconstitutional.
The Internet provides unpleasant people with new opportunities to cause emotional harm to others, and legislators are busy reacting to these opportunities. They are passing laws forbidding hurting people’s feelings online, forbidding impersonating people online, forbidding sharing sexual images without permission and so forth. All of these statutes are, in our opinion, unconstitutional, and we are in the forefront of the fight against them.
How We Litigate Free-Speech Defense
We challenge these unconstitutional statutes both as written (they forbid a substantial amount of protected speech) and as applied (the particular speech that our clients are accused of is protected speech).
Where possible, we litigate these issues pretrial — it’s better for our clients in many cases to avoid conviction while we fight over the unconstitutionality of the statute. But we also litigate them in trial, and teach other lawyers to litigate them both pretrial and in trial.
How Can We Help You?
If you are accused of a crime because of something you said, or wrote, or published, we would like to hear from you. You may want to hire us, or your lawyer may want to consult with us. Call Bennett & Bennett at 713.224.1747.