713-224-1747
Recent Blog Posts
Arguing Massachusetts's Peeping-Tom Statute
In a post notable only for its stupid title, Staci Zaretsky writes at Above the Law, Man Claims First Amendment Right To Take Pornographic ‘Upskirt' Pictures.
Here's the story to which she links: Lawyer Defends Client's MBTA ‘Up-Skirt' Photos, Claims They Should Be Protected by the First Amendment:
A lawyer representing an Andover man arrested in 2010 for allegedly taking photos up women's skirts on the T argued this week that her client's actions should be protected by the First Amendment.
The lawyer, Michelle Menken, argued:
A person expects that the area under their clothing is private and protected against hostile intrusion... but if a clothed person is out in public and reveals areas under their clothing, whether inadvertently or otherwise, to plain view, she or he no longer has an expectation of privacy.
On Twitter, UNC Professor Jessica Smith asked,
One Thing Male Feminists Need to Stop Saying
At days like crazy paving, jaythenerdkid writes Ten things male feminists need to stop saying. She includes things like, "I'm really attracted to strong women"; "But I haven't done any of those things!"; and so forth: all things that either sound like feminism only to men, or make the discussion about them, or both. In her comments she writes that male feminists who want to contribute to feminist discussions should "respectfully stay quiet until you are asked to speak," which I think more than amply covers her other ten points.
I also have a single simple rule for male feminists that amply covers jay's ten points:
Do not claim to be a feminist.
Don't get me wrong: you might think you're a feminist; if so, more power to you. But saying it doesn't make it true, and no matter what you think of yourself, you're not going to convince anyone by saying it.
Anally Raping the Constitution, Plus Tort Reform
What hellish dystopia is this? Without Eckert's consent:
1. Eckert's abdominal area was x-rayed; no narcotics were found.2. Doctors then performed an exam of Eckert's anus with their fingers; no narcotics were found.3. Doctors performed a second exam of Eckert's anus with their fingers; no narcotics were found.4. Doctors penetrated Eckert's anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.5. Doctors penetrated Eckert's anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.6. Doctors penetrated Eckert's anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found.7. Doctors then x-rayed Eckert again; no narcotics were found.8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert's anus, rectum, colon, and large intestines. No narcotics were found.
New Revenge-Porn Statute Policy
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.
Blawg Review #325.3 [updated]
From April 11, 2005 (Evan Schaeffer's Blawg Review #1) to July 2, 2012 (Paul Kennedy's Blawg Review #324) "Ed.," the anonymous editor of Blawg Review, midwifed into existence a weekly (for the first six years, intermittent after that) "blog carnival," in which one law blogger or another, hosting on his or her blog, gathered interesting law blog posts from the previous week and connected them together in a post with a theme of the blogger's choice.
The blawgosphere learned this week that Ed had died of esophageal cancer.
Other long-time law bloggers have eulogized Ed:
Another Suspect Texas Statute: 33.021(c)
In light of the Texas Court of Criminal Appeals decision holding Section 33.021(b) of the Texas Penal Code (the "dirty talk" portion of the Online Solicitation of a Minor Statute) unconstitutional under the First Amendment, there is a good constitutional challenge to Section 33.021(c) (the "solicitation" portion of the Online Solicitation of a Minor Statute):
A person commits an offense if the person, over the Internet or by electronic mail or a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.
As a preliminary matter, this is a content-based speech restriction: to determine whether the law is violated you have to determine whether the communication is solicitative or not. If it is not solicitative speech (for example, the dirty talk forbidden by 33.021(b)), it is not forbidden by 33.021(c).
Post-Halloween Parade of Horribles
Choose your poison:
In Houston, "Big Guy" lay dead in the street at the intersection of Travis and Anita for nearly a day on Monday. Passersby thought it curious enough to take pictures, but not curious enough to check on him or even call the authorities.
I'm with my old friend and adversary, HPD Homicide Sergeant Brian Harris, on this one: "If they just had used their cellphone to make a call instead of a picture, perhaps this man could still be alive today."
What the hell is wrong with you people?
Meanwhile, in once-Great Britain, "Lawyers will be given financial incentives to encourage clients to plead guilty early under government reforms to legal aid but will lose money if cases go to trial."
It's a scheme worthy of Texas's worst, Senator Joan Huffman: stupid and mean. It's a subornation of the criminal-defense bar. Lawyers are professionals, but they're also humans, and if you give them a cash incentive to encourage their clients to waive trial, some of them will tend to do so.
What Happens Next
So now that the dirty-talk portion of Texas's online-solicitation-of-a-minor statute, Section 33.021(b) of the Texas Penal Code, has been held unconstitutional, what happens to those people who have been convicted or put on deferred-adjudication probation for violating the statute in the last eight years?
Alan Curry, Chief of the Harris County District Attorney's Office's Appellate Division, "said pending cases would likely be dismissed and the office will have to review what to do about anyone convicted under the voided law." (Chron.)
I don't know what the DA's Office will wind up doing, but it doesn't seem like a difficult call: the right thing to do (once the decision is final) is to give everyone convicted or placed on deferred-adjudication probation for violating Section 33.021(b) the option of reopening their cases.
Why give them the option, instead of just reopening the cases? Because some of them may have pled more serious charges (with longer maximum sentences or lifetime sex-offender registration requirements) down to 33.021(b) violations, and they should have the benefit of their bargain if they still want it.
Part of Texas Online Solicitation of a Minor Statute Unconstitutional
Today I got an opinion from the Texas Court of Criminal Appeals that culminated four years of appellate litigation on the unconstitutionality under the First Amendment of the "talking dirty" portion of Texas's "online solicitation of a minor" statute, Texas Penal Code Section 33.021(b).
The State could file a motion for rehearing with the Court of Criminal Appeals, but it's a 25-page unanimous opinion penned by Judge Cathy Cochran, so I think the motion would be a waste of paper.
I expect that the State will file a petition for writ of certiorari with the United States Supreme Court, and that it'll be denied. The unconstitutionality of the statute is a no-brainer. In fact, in light of Stevens the Court of Criminal Appeals (and I, in my briefs) arguably gave the State too much leeway by applying strict scrutiny rather than a purely categorical test. I am relieved that I won't have to file a cert petition, which I would have done had the Court of Criminal Appeals come to a different conclusion.Volokh Conspiracy, Grits for Breakfast, the Austin American-Statesman, and the Houston Chronicle have taken note of the case, noting in particular this language:
Contact Us if You're
Ready for a Better Future
Schedule a consultation today by filling out the form below or calling our office at 713-224-1747. We look forward to representing you.
The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.
I have read and understand the Disclaimer and Privacy Policy.
From our office in Houston, we represent clients throughout Harris County and across the state of Texas. We assist with criminal cases in Conroe, The Woodlands, Kingwood, Bellaire, Friendswood, Highland Village, West University Place, Cypress, Willis, Austin, Dallas, For Worth, Arlington, San Antonio, Corpus Christi, Beaumont, Tyler, Plano, Spring, New Caney, Porter, Humble, Atascocita, Aldine, Cloverleaf, Pasadena, South Houston, Pearland, Fresno, Missouri City, Sugar Land, Pecan Grove, Richmond, and Katy.
Results listed are not a guarantee or indication of future case results.
917 Franklin Street, Fourth Floor, Houston, TX 77002
713-224-1747
