New Revenge-Porn Statute Policy

 Posted on November 04, 2013 in Uncategorized

The easier a statute makes it to regulate undesirable speech, the less constitutional the statute. For example, Texas Penal Code Section 15.031, Criminal Solicitation of a Minor is more difficult for a prosecutor to prove than Section 33.021(c), Online Solicitation of a Minor because the former requires proof of the specific intent that a crime be committed, but the latter (in subsection (d)) dispenses with that requirement.

Given the choice between a statute that makes his job more difficult, and a statute that makes his job easier, a prosecutor will tend to choose the latter.

So, given the choice between a constitutional statute and an easier-to-prove-but-more-likely-unconstitutional statute a prosecutor will choose the latter. He will naturally choose "not having to prove specific intent" over "having to prove specific intent."

If legislators and prosecutors listened to me, the legislatures wouldn't be writing unconstitutional statutes and the prosecutors wouldn't be enforcing them. But I'm not going to change anyone's mind by arguing with people who say things like, "Speech, by the mere virtue of being speech, does not receive First Amend­ment pro­tec­tion by default" and then get huffy when told that they are ignorant.

So instead of continuing to argue with political hacks like Mary Anne Franks about whether a statute that makes it easier than current law to publish revenge porn would be constitutional (it would not), from now on I will encourage the passage of such statutes without regard to their unconstitutionality. If it's an option, prosecutors will prosecute people under these statutes, rather than under more-difficult-to-prove-but-more-likely-constitutional statutes, until at some point someone points out to the courts that the statutes are unconstitutional. Then the statute will be tossed out, along with the convictions of everyone prosecuted before the courts figured out that the statutes were unconstitutional. It'll be too late then for the State to go back and prosecute everyone under the more-difficult-to-prove statutes.

"But Mark," you say, "What about the wrongdoers who your plan will in the end be set free because the legislature and the prosecutors couldn't be bothered to read Stevens and Alvarez for themselves?"That, friends and neighbors, is not my problem.