At the outset we reject the view that freedom of speech and association, as protected by the First and Fourteenth Amendments, are ‘absolutes,’ not only in the undoubted sense that where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment. Konigsberg v. State Bar of Cal., 366 U.S. 36, 49 (1961) (citation omitted). What

Texas's Online Impersonation statute, Penal Code Section 33.07: (a) A person commits an offense if the person, without obtaining the other person's consent and with the intent to harm … any person, uses the name or persona of another person to: (1) create a web page on a commercial social networking site or other Internet website; or . . . (c) An offense under Subsection (a) is

If jurors decide cases based on beliefs reached early in the case, how can we best affect their decisions? Ideally we will show them two things before the evidence begins: A story, and credibility. Maybe we'll talk some other time about telling the story—what makes a good story, and how to tell it. Credibility is something that we should be attentive to every moment of trial. Every

These many cognitive biases we all have—confirmation bias, fundamental attribution bias, and so forth—were once our friends. They helped our species reach the top of the food chain by allowing us to make snap judgments that, at the time, were right often enough to justify how often they were wrong. But "at the time" was before they built the Harris County Criminal Justice Center. Before we started

Fundamental attribution bias is the cognitive bias that leads us to attribute people's actions, good or bad, to their character rather than to circumstances. A person of whom we have no opinion and for whom we have no ingroup/outgroup associations leading to an opinion, but whom we learn has done a bad thing, we generalize ((Remember: When we form our cognitive map of the world we generalize,

(Please forgive typos in this and surrounding posts. I'm traveling, and  writing on an old iPad and a bluetooth keyboard, so there is some lag between the typing and the appearance of words on screen. I may come back and clean up later.) What if there were a secret about the way that jurors decided cases, the knowledge of which would give you an advantage over almost

Criminal trial lawyering is a subcategory of trial lawyering, which is a subcategory of persuasion, whihc is a subcategory of communication. So the criminal trial lawyer, to be better at her craft, could study the lessons of other trial lawyers (personal-injury lawyers, for example). That's obvious. The good thing about personal-injury lawyers is that they are fighting over money. ((It's also the bad thing about them.)) Because

I decided near the end of last year that my word for this year would be "attention." I would pay attention to what I was paying attention to, and to what I was getting in return f0r these payments of the scarcest asset I possess. I pretty quickly realized that I couldn't stand watching sitcoms, or tv generally, or listening to commercial radio, or watching popular media.

Here I expressed confidence that the Texas Court of Criminal Appeals will eventually straighten out the law on what makes a regulation content based, putting various speech-restricting statutes that intermediate Texas Courts have found not to be content-based regulations back on the table. Why the confidence? Because I'm right. Okay: Also because while the Court of Criminal Appeals can dodge the issue procedurally for a while, they

Situation excellent: On Wednesday the Texas Court of Criminal Appeals affirmed the Beaumont Court of Appeals in Leax v. State. When the Court of Criminal Appeals granted discretionary review on Leax, I thought it would be the culmination of almost four years of fighting that began with this post after I realized that section 33.021 of the Texas Penal Code, in which the Texas Legislature created a constitutionally valid