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Recent Blog Posts
2015.19: Get It?
Murray Newman is a witness in Ex Parte Temple. The writ hearing has been going on sporadically for several weeks. One of the issues is whether Kelly Siegler concealed exculpatory information from the defense. Newman testified early, and Siegler has been on the witness stand for at least four days (orthogonally: here and here are the transcripts of Siegler's first two days of testimony).
So when Newman wrote this post, around his doctor and a cancer scare, I commented:
I was wondering when you were going to write about Siegler and the temple case. Thank you.
Murray's commenters don't get it.
I believe that my commenters come from a different tranche of the bell curve.
Prove me right.
2015.18: Texas Law Shield and Second Call Defense
One of my gun-totin' libertarian friends asked me:
What do you think about those legal insurance funds for CHL holders?For example:http://www.texaslawshield.com/ http://www.secondcalldefense.org/Any good? Worth it? Or no opinion?
I have different issues with the two companies.
Texas Law Shield is not "insurance," but rather "a licensed legal services company." It purports to provide "legal representation by an attorney"-an attorney, not the attorney of your choice-for any contract holder in good standing who has a "use of a firearm:"
Any incident where the Legal Service Contract Holder either discharges or displays a firearm for the purpose of using the firearm as a weapon to stop a threat, whether the Legal Service Contract Holder pulls the trigger and discharges the firearm or not. This term does not include taking the firearm to a location that is prohibited by federal, state, or local law, negligent or unintended discharges, or negligent or unintended displays.
2015.17: F**king Samir Chopra
My fellow Delhi-walla Samir Chopra writes, in a post entitled "Mark Bennett is a Sexist Tool":
Over at the blog Defending People, Mark Bennett, a Houston-based criminal defense lawyer, writes a long, technical, closely argued post critiquing Danielle Citron‘s putative
"Putative." Which means that Chopra is at least partly on the right page: there is some doubt about Citron's rebuttals.
rebuttals of arguments–based on First Amendment concerns–against her proposals for ‘revenge porn' laws. Bennett titles his post ‘F**ing Danielle Citron' and at the end signs off thusly:P.S. "F**king" is fisking. Sicko.That was very witty. Chuckle, guffaw, chortle, snicker. I hope you got it and appreciated the joke, otherwise, Bennett is going to think you are one square, stodgy dude. I'm playing it safe, and issuing a few preemptive cackles.
2015.16: Another Proposed Texas Revenge-Porn Statute
Texas HB496:
Sec. 21.16. UNLAWFUL DISCLOSURE OR PROMOTION OF INTIMATEVISUAL MATERIAL. (a) In this section:(1) "Intimate relationship" means a marriage relationship or a relationship of a romantic or intimate nature between two persons.(2) "Promote" and "sexual conduct" have the meanings assigned by Section 43.25.(3) "Visual material" has the meaning assigned by Section 43.26.(b) A person commits an offense if the person:(1) by electronic means, intentionally discloses visual material depicting another person engaged in sexual conduct;(2) was in an intimate relationship with the depicted person when the visual material was created or transmitted to the person;(3) knows or should have known that the depicted person has not consented to the disclosure; and(4) discloses the visual material with the intent to cause harm to the depicted person, including mental anguish, emotional distress, actual or threatened physical violence, economic harm, harm to reputation, or harassment by a third party.(c) A person commits an offense if, knowing the character and content of the visual material, the person promotes visual material described by Subsection (b) on an Internet website or other forum for electronic publication that is owned or operated by the person.(d) It is not a defense to prosecution under this section that the depicted person:(1) created or consented to the creation of the visual material; or(2) voluntarily transmitted the visual material to the actor.(e) It is an affirmative defense to prosecution under this section that the actor is an interactive computer service, as defined by 47 U.S.C. Section 230, and the disclosure consisted of visual material provided by another person.(f) An offense under this section is a Class A misdemeanor.(g) If conduct that constitutes an offense under this section also constitutes an offense under another law, the actor may be prosecuted under this section, the other law, or both.
2015.15: F**king Danielle Citron
I guess I missed it at the time because it's on Forbes.com, which I try to avoid. But last April Danielle Citron wrote Debunking the First Amendment Myths Surrounding Revenge Porn Laws:
Disclosing someone's nude image in violation of trust and confidence (often known as nonconsensual pornography or revenge porn) is a destructive invasion of privacy that can cause irreversible harm to a person's physical and emotional well-being, professional reputation, and financial security. Lawmakers are rightfully paying attention. Seven states have criminalized the practice; 18 states have pending bills; Representative Jackie Speier has expressed interest in making it a federal crime.Some object to criminalizing invasions of sexual privacy because free speech will be chilled. That's why it is crucial to craft narrow statutes that only punish individuals who knowingly and maliciously invade another's privacy and trust.
2015.14: Je Suis Charlie, Mais Pas Français
In France if you print cartoons inciting discrimination and hatred against Muslims, you may be murdered by a band of armed thugs. This is censorship.
In France if you print cartoons inciting discrimination or hatred against Muslims, you may be arrested, tried by a court, and imprisoned for a year. Only if you resist can you be murdered by a band of armed thugs. This is civilization.
2015.13: When is a Model Not a Model?
Being of questionable character, she then quietly changed her model law, without conceding her initial model law was fundamentally flawed, or acknowledging that her detractors had a point, to add her "public interest" exception. This, she contended, cured all First Amendment problems, aside from all the others she continued to vehemently deny
Following up on SHG's comment, here is Mary Anne Franks's model revenge-porn-criminalization statute from October 2013:
Whoever intentionally discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person's consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.(a) Definitions: For the purposes of this section,1) "disclose" means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.2) "intimate parts" means the naked genitals, pubic area, buttocks, or female adult nipple of the person.3) "sexual contact" means sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.(b) Exceptions:1) This section shall not apply to lawful and common practices of law enforcement, reporting of unlawful activity, or legal proceedings.2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.
2015.12: “In the Public Interest”
Revenge-porn-criminalization mouthpiece Mary Anne Franks writes in her Guide for Legislators:
The law SHOULD contain... narrow exceptions for disclosures made in the public interest. Otherwise, individuals could be prosecuted... for recording and reporting unlawful activity, such as flashing.
Franks's model statute "does not apply to":
Disclosures made in the public interest, including but not limited to the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.
A commenter here asked, "why isn't it in the public interest for people to continue to engage in sharing harmless pictures of innocent kids?"
This raises questions, among them:
When someone publishes something that is otherwise forbidden, who decides whether something is in the public interest?;
2015.11 Also, in Mary Anne Franks's Perfect World
#AZ via @berkitron https://t.co/BICDqe4XUa- ACLU National (@ACLU) September 23, 2014
That's a tweet from the American Civil Liberties Union. The link within it is to a blog post written by Lee Rowland (@berkitron), Staff Attorney, ACLU Speech, Privacy & Technology Project.
Sharing that image would be "disclos[ing] an image of another, identifiable person, whose intimate parts are exposed... when the actor knows or should have known that the depicted person has not consented to such disclosure."
Disclosing an image of another identifiable person whose intimate parts are exposed when you should have known that the person has not consented to the disclosure would violate the model revenge-porn statute proposed by Mary Anne Franks.
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