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The State's Revenge-Porn Arguments, Part 2: Is it Content Based?
(Nobody ever taught me this in school, and perhaps nobody ever told you either: When a compound adjective follows the noun ("the statute is content based") it is not hyphenated; when it precedes the noun ("it is a content-based statute") it is (provided, of course, that the other rules of hyphenation apply).)
Failing to convince the court that section 21.16(b) of the Texas Penal Code does not restrict speech, the State will next argue, in hopes of keeping strict scrutiny from applying, that even if it restrict speech section 21.16(b) does not restrict speech based on its content.
The statute restricts "visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct" but does not restrict visual material depicting other things. That's a content-based restriction.
In Texas, Ex parte Lo and Ex parte Thompson both set forth a test for content-basedness: "If it is necessary to look at the content of the speech in question to decide if the speaker violated the law, then the regulation is content-based." ((That is a test that the United States Supreme Court in City of Cincinnati v. Discovery Network, Inc. described as "common sense."))
The State's Revenge-Porn Arguments, Part 1: Is it Speech?
Here is section 21.16(b) of the Texas Penal Code:
A person commits an offense if:(1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person's intimate parts exposed or engaged in sexual conduct;(2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;(3) the disclosure of the visual material causes harm to the depicted person; and(4) the disclosure of the visual material reveals the identity of the depicted person in any manner, including through:(A) any accompanying or subsequent information or material related to the visual material; or(B) information or material provided by a third party in response to the disclosure of the visual material.
The State likes to argue that this does not restrict speech, but only conduct.
They want to argue this because strict scrutiny is almost always fatal to a content-based restriction on speech. And there are several recent Texas intermediate court opinions statutes as restrictions on "conduct, not content."
The State's Arguments for Revenge-Porn Criminalization [updated]
Revenge porn is not speech.
Revenge porn criminalization is not a content-based restriction.
Revenge porn is obscenity.
Revenge porn is integral to criminal conduct.
Revenge porn is "essentially intolerable invasions of privacy," a recognized category of historically unprotected speech.
Revenge porn falls into some hitherto unrecognized category of historically unprotected speech.
Revenge porn criminalization is directed at secondary effects of revenge porn.
Revenge porn should be treated like commercial speech, subject to intermediate scrutiny.
Revenge porn is very harmful low-value speech, not worthy of full First Amendment protection.
(These are all bad arguments. Explaining why will give me seven easy blog posts. What arguments am I missing?)
Revenge-Porn Oral Argument
The First Court of Appeals in Houston will be hearing oral argument February 13th in the case of State v. Mora. This is the State's appeal from a trial court judgment holding section 21.16(b) of the Texas Penal Code (Unlawful Disclosure or Promotion of Intimate Visual Material) unconstitutional under the First Amendment.
The State's scattered brief:
(sorry, the link is unavailable)
Mr. Mora's elegant brief:
(sorry, the link is unavailable)
We argued this issue last month before the Waco Court of Appeals ((I'll throw those briefs up in a separate post.)) but that argument was not recorded for posterity. This one will be.
Hagstette at Nuremberg.
Harris County's sixteen county criminal court (misdemeanor) judges have spent millions of taxpayer dollars defending, in federal court, their systematic denial of personal-recognizance bonds to indigent defendants.
They probably should have settled. For now the plot thichens: the U.S. District Judge hearing the case, Lee Rosenthal, has ordered all sixteen judges to hie themselves into her courtroom next Tuesday afternoon to answer some questions the plaintiffs have asked about the judges' truthfulness to the court.
The questions were raised by three hearing officers' testimony before the State Commission for Judicial Conduct this month. One of the hearing officers,
[Eric] Hagstette, for example, told the commission he and his colleagues "didn't write the policies, but we had to follow them," adding: "Could I do something? Probably by law, I could have. I don't know if it would have been good for my career."
“Yes” Sets, Compliance Sets, and Cross-Examination
A compliance set is a series of instructions (three will do) that you give to your hypnosis subject to establish his physical compliance with your commands. They don't have to be fancy, but they have to be things that your subject will do: "Put your feet flat on the floor [he's already doing it]. Rest your hands comfortably on your legs. Now close your eyes."
A yes set is a series of questions that you ask your hypnosis subject to establish his intellectual compliance with you. Again: nothing fancy. "Do you want to experience a hypnotic trance? Is this your first time to experience a hypnotic trance? Are you ready to begin?"
Start with a yes set, follow with a compliance set, and you're off to the races. You've set up two patterns: physical compliance, and rapport.
But that's with a subject who wants what you're offering. What about a witness under cross-examination?
Terry MacCarthy's "look-good cross" is an extended yes set.
Cargo-Cult Judging
The State may lawfully proscribe communicative conduct (i.e., the communication of ideas, opinions, and information) that invades the substantial privacy interests of another in an essentially intolerable manner."
Scott v. State, 322 S.W.3d 662, 668–69 (Tex.Crim.App. 2010).
Yes, the Supreme Court used some of those words in Cohen v. California. But those weren't all of the words:
The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.
The Court there wasn't talking about protecting the substantial privacy interests of the subject of speech, but of those hearing it. And even that was dictum-Cohen v. California was the "Fuck the Draft" case, and the Court held that wearing a "Fuck the Draft" jacket was constitutionally protected.
It should be taught in judging school that a case in which a restriction is held unconstitutional never supports the proposition that another restriction (not before the court in that case) is constitutional. ((JK LOL Texas judges don't go to school, they get their wisdom from just being elected.))
Another Shot at Injustice
This is going out today to Nico LaHood, the District Attorney of Bexar County. Similar letters are going out to Kim Ogg, the District Attorney of Harris County; and Sharen Wilson, the District Attorney of Tarrant County.
I think Wilson has done the most to fix the problem-her office sent out letters notifying people that they might be entitled to relief from convictions under the void section 33.021(b) of the Texas Penal Code.
But nobody has, as far as I know, taken the obvious step of asking trial courts to appoint counsel to people suffering such convictions.
So that's what I'm asking.
Too Little, Too Late
On Friday, I sprung a guy from a Texas prison.
"Carl" had been in for nine years on an online-solicitation-of-a-minor case when his mom hired me to file an application for writ of habeas corpus on his behalf.
Just after Christmas the Tarrant County District Attorney agreed that relief was appropriate, and agreed to Carl's release on his own recognizance. The court bench-warranted Carl back from prison to the county jail, and put him on the docket for Friday.
I drove up for the proceedings, and the judge set a one-dollar personal bond, conditioned only on Carl's reporting back to the jail if the Court of Criminal Appeals refuses relief. About seven hours later the Tarrant County Sheriff let Carl out.
I have to admit that I got a bit teary: For the last three and a half years Carl has been illegally confined, sitting in prison because of a statute declared void by the Court of Criminal Appeals in Ex parte Lo. He can never get back a day of that time, and there is no prospect for him to be compensated for his illegal incarceration.
You Can't Put Too Much Water in a Nuclear Reactor
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 does that mean?
X = the view that where the constitutional protection exists it must prevail;
Y = the view that the scope of that protection must be gathered solely from a literal reading of the First Amendment.
Is the Court rejecting (X and Y), or is it rejecting X and rejecting Y?
If it is rejecting X and rejecting Y, then why did the Court not write, "we reject the view that freedom of speech and association are absolutes either in the sense that where the constitutional protection exists it must prevail, or in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment."
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