Posted on May 10, 2016 in Uncategorized

Suppose that you are a civil lawyer representing a business or government entity in Texas, and your client is served with a subpoena in a criminal case. The subpoena is returnable "instanter," and asks that your client produce certain documents along with a business-records affidavit.

What do you do?If you are Shannon Kackley of Austin's Denton Navarro et al., you look up the Texas criminal subpoena statutes, notice that a subpoena must require the witness's appearance "before a court" "at a specified term of the court or on a specified day" (and not instanter), and send the defense lawyer this email:

Mr. Bennet,This Firm and I represent the City of Bay City, Texas and the Bay City Police Department.We have been informed that you have recently provided a copy of the attached document to the Bay City Police Department. We have reviewed the purported subpoena and determined that it is invalid and unenforceable.If you wish to obtain documents from the Bay City Police Department, please properly serve it with a valid subpoena duces tecum under Article 24 of the Texas Code of Criminal Procedure.If you have any questions, please do not hesitate to contact me.

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 Posted on February 26, 2016 in Uncategorized

This week a district court (felony) judge in Waco held Section 33.07 of the Texas Penal Code unconstitutional:

Sec. 33.07. ONLINE IMPERSONATION. (a) A person commits an offense if the person, without obtaining the other person's consent and with the intent to harm, defraud, intimidate, or threaten 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(2) post or send one or more messages on or through a commercial social networking site or other Internet website, other than on or through an electronic mail program or message board program.(b) A person commits an offense if the person sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person:(1) without obtaining the other person's consent;(2) with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication; and(3) with the intent to harm or defraud any person.(c) An offense under Subsection (a) is a felony of the third degree. An offense under Subsection (b) is a Class A misdemeanor, except that the offense is a felony of the third degree if the actor commits the offense with the intent to solicit a response by emergency personnel.(d) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.(e) It is a defense to prosecution under this section that the actor is any of the following entities or that the actor's conduct consisted solely of action taken as an employee of any of the following entities:(1) a commercial social networking site;(2) an Internet service provider;(3) an interactive computer service, as defined by 47 U.S.C. Section 230;(4) a telecommunications provider, as defined by Section 51.002, Utilities Code; or(5) a video service provider or cable service provider, as defined by Section 66.002, Utilities Code.(f) In this section:(1) "Commercial social networking site" means any business, organization, or other similar entity operating a website that permits persons to become registered users for the purpose of establishing personal relationships with other users through direct or real-time communication with other users or the creation of web pages or profiles available to the public or to other users. The term does not include an electronic mail program or a message board program.(2) "Identifying information" has the meaning assigned by Section 32.51.

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 Posted on February 26, 2016 in Uncategorized

About 15 seconds of my 20-minute argument in the Georgia Supreme Court on Monday ( watch it ) involved everyday incidents of teenagers being sexually aroused by adults, or adults being sexually aroused by children. I talked about my own experiences as a sexually aroused teen, which was true and amusing, and also about something that is true and important: the unwanted sexual attention paid to teen girls by grown men.

My point, which I made explicitly, was that this is not the sort of thing that government could or should try to criminalize-something orthogonal, as JDog would say, to my argument, which was that the forbidden speech falls into no historical category of unprotected speech, so that forbidding it is not permitted by the First Amendment and Supreme Court authority.

Fifteen seconds, and incidental, and the Daily Report's Katheryn Hayes Tucker chose to make that the focus of her coverage of the story. She found three outraged lawyers who were more than happy to be outraged in the paper without watching the entire argument, and described the outrageous snippet of argument to them.

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 Posted on February 25, 2016 in Uncategorized

My argument in the Supreme Court of Georgia had me reflecting on three categories of conservatism: the social, the political, and the judicial.

In Georgia, we were dealing with a law that forbade an adult communicating certain content (including descriptions of nudity) to a child online with the intent to arouse or satisfy the sexual desire of the adult or the child.

While socially conservative libertarians can lay claim to the "political conservative" tag with just as much good faith as socially conservative authoritarian, I view political conservatism as lying closer to the authoritarian end of that axis. It may be that "politically conservative" has been used by so many disparate philosophies that it is devoid of meaning, but the political conservative would, in my view, view the suppression of perversion as a valid governmental goal.

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 Posted on February 25, 2016 in Uncategorized

Chris was charged in Texas with Online Solicitation of a Minor under Section 33.021(b) of the Texas Penal Code. He hadn't tried to solicit anyone, but he had allegedly communicated sexually explicit words to a minor with the intent to sexually arouse or gratify himself or the minor.

Jack was charged in Georgia with Obscene Internet Contact with a Child under Georgia Code 16-12-100.2(e). He hadn't had obscene contact with anyone, but had allegedly communicated sexually explicit words to a child with the intent to sexually arouse or satisfy himself or the child.

I stood up in the highest courts of Texas and Georgia to argue that 33.021(b) and 16-12-1002(e) violated the First Amendment by forbidding a real and substantial amount of protected speech. Texas agreed with me; we will find out by July whether Georgia does.

You might ask yourself, "how is that protected speech?"

The boiled-down judicially conservative answer is that speech is protected unless it falls into a recognized category of historically unprotected speech, and the speech forbidden by the Texas and Georgia statutes falls into no such category. (The particular question didn't arise in Texas; in Georgia the State even admitted that no such category existed. In light of the State's admission, upholding the statute will require judicial activism on the part of the Georgia Supreme Court.)

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 Posted on February 23, 2016 in Uncategorized

I'm writing this from 30,000 feet in the air, flying home to Houston from Atlanta where yesterday I argued a First Amendment case before the Georgia Supreme Court. Most lawyers never get to argue before their own State's highest court, much less another state's. Georgia was very hospitable to me. Brunswick criminal-defense lawyer Jason Clark ((For the Texas criminal-defense lawyers: Jason's a Georgia version of Tony Vitz.)) and Savannah criminal-defense lawyer Cris Schneider, my local counsel on the case, put me up in a nice hotel, fed me good food, and-most importantly-made sure I didn't have to worry about getting where I had to be when I had to.

In addition to Jason and Cris, I made other new friends in Georgia: Keith Lee, Andrew Fleischman, Jon Rapping, Scott Key, Esther Panitch, Alan Begner, and my opposing counsel Jay Sekulow (who I hope will be on the right side of the First Amendment the next time I work with him). I got to see my old Trial Lawyers College friend Nick Lotito. My old buddies Scott Greenfield and Brian Tannebaum flew in from New York and Miami to hang out and help me prepare for argument (I don't need a moot court; I just need three or four smart lawyers to try to crush any pride I might have had in my argument over coffee).

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 Posted on January 01, 2016 in Uncategorized

In the last three years, I convinced Texas courts to hold five statutes unconstitutional under the First Amendment. ((Also one statute under Texas's separation of powers clause.)) I filed briefs in the Georgia Supreme Court, will argue the unconstitutionality of a Georgia statute next month, ((February 22 in Atlanta. There will be steaks, wine, and hilarity. Mark your calendars.)) and will be assisting Jason Clark in the appeal of another George First Amendment challenge. ((Protip: the State can't forbid people insulting bus drivers.)) This year, I'd like to hear from:

1. Alaska lawyers with clients charged under Alaska Stat. 11.61.120(a)(6);

2. Arkansas lawyers with clients charged under Arkansas Code 5-26-314;

3. California lawyers with clients charged under California Penal Code section 647(j)(2), 647(j)(3), or 647(j)(4);

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 Posted on December 26, 2015 in Uncategorized

Josh Blackman sent me the link on Christmas Eve:

Humbach on the Constitutionality of Revenge Porn Statuteshttp://lsolum.typepad.com/legaltheory/2015/12/humbach-on-the-constitutionality-of-revenge-porn-statutes.htmlJohn A. Humbach (Pace University School of Law) has posted The Constitution and Revenge Porn (Pace Law Review, Vol. 35, No. 1, 2015) on SSRN. Here is the abstract: Most of the recently enacted revenge-porn laws are unconstitutional as content-based regulations of speech unless (as is unlikely) they can either (i) pass strict scrutiny or (ii) fit within one of the recognized categorical exceptions to First Amendment protection. By paying close attention to the constitutional precedents, however, a legislature should be able to write a law that addresses the primary harms of revenge porn without resorting to the content discrimination which subjects the law to strict scrutiny. One approach, suggested here, is to frame the law so that it establishes an otherwise valid crime whose burden on speech can be regarded as only "incidental" (within the meaning of O'Brien and other precedents). By avoiding the content-discrimination trap, such a law should be able to thus survive constitutional scrutiny for the same reasons that, for example, the Title VII harassment prohibitions are constitutional. There are, however, no guarantees. Any such a law would still represent, in the final analysis, an attempt by government to suppress speech it does not favor, and the basic meaning of the First Amendment is to prohibit exactly that sort of thing. Note: This article is a revised and finalized version of a working paper previously available and entitled "How to Write a Constitutional ‘Revenge Porn' Law."

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 Posted on December 13, 2015 in Uncategorized

The great thing about having blogged for more than eight years (eleven, if you count my first shortlived attempt) is that I have a record of my own increasing understanding of my subject.

I wrote in 2010 about fighting back against common sense-preempting and responding to the State's argument that a jury should find a defendant guilty because of "common sense":

"Common sense" has nothing to do with it. The words do not appear in a Texas criminal jury charge. The existence of jury trials is not common sense. The presumption of innocence is not common sense. Requiring proof beyond a reasonable doubt is not common sense.

What I didn't have in 2010 was an explanation of what common sense is, until I saw this:

Screenshot of part of Scott Adams List of Cognitive Biases.

I knew about cognitive biases, of course, and about how they short-circuit rationality without our knowing it, but I had never made the connection before: "common sense" is just a polite term for our complex of cognitive biases.

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 Posted on December 01, 2015 in Uncategorized

It might be pardonable to refuse to defend some men, but to defend them negligently is nothing short of criminal.

Cicero did not take into account the case of Tyler lawyer James Volberding and Houston lawyer Seth Kretzer, whose treatment of their client Raphael Holiday was not merely negligent but malevolent. The idea that lawyers would turn on their own client, trying to speed his execution, was beyond consideration for Cicero.

As it was for me. When Gretchen Sween, the lawyer who was trying to help Holiday get new counsel appointed in the place of Volberding and Kretzer, told me that Kretzer and Volberding "opposed their own client's motion for a stay of execution before the Fifth Circuit," I was skeptical, to say the least. I thought that Sween's description of what happened was probably not entirely objective.

Lawyers representing a death row inmate don't suffer under the illusion that they can keep their client from dying. They don't even suffer under the illusion that they can keep him from dying in cold blood at the hands of the state. Occasionally they can, but most often they are buying a few more precious days for their client, and making the state work a little harder to end his life. The client generally isn't suffering from the illusion that litigation is going to keep him from dying either. Nothing is going to stop him from dying. Nothing is going to stop you or me from dying either, but most of us are doing things to try to set that moment off a little bit longer. We exercise and eat well, or failing that at least we eat, breathe, and don't step in front of buses.

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