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Recent Blog Posts
Illinois Supreme Court Gets Revenge Porn Wrong
In an opinion rife with logical and legal error, the Illinois Supreme Court has upheld that state's revenge-porn statute in the face of First Amendment challenges. The opinion is here:
(sorry, the link is unavailable)
What's wrong with that? Just about everything.
First,the Illinois Court explicitly claims, at *10-*12, not to identify a new category of speech that falls outside of First Amendment protection.
It then holds that the statute "regulates a purely private matter," so that the strict scrutiny that applies to content-based restrictions does not apply.
In effect, the Illinois Supreme Court has identified "speech on purely private matters" as a category of speech that-just like speech in recognized categories of historically unprotected speech-is not subject to the same protection from content-based restrictions as other speech.
The Supreme Court has never recognized such a category; and even the Vermont Supreme Court in VanBuren explicitly rejected this argument.
Revenge Porn Questions and Answers (Updated)
Dear Mr. Bennett,I'm writing to follow up on a voice mail I left late yesterday.I'm a writer with the ABA Journal, the American Bar Association's member magazine, and I'm writing an article on First Amendment challenges to revenge porn laws. This of course includes your current case for Jordan Jones before the Texas Court of Criminal Appeals. I understand from media reports that you may have other clients with similar situations, which suggests to me that you might have strong opinions on the topic. I've also read your opening brief and some of your response briefs, which reinforced that.Would you be interested in discussing this sometime in the next week? I'd want to ask:
First, can you tell me about your other revenge porn clients? If you feel names are a violation of your confidentiality obligation to your clients, I'm really interested in how many there are and if there are interesting fact patterns in any case.
There are seven or eight others.
Texas National Send a Butt Pic to the Governor Day.
SECTION 1. Chapter 21, Penal Code, is amended by adding Section 21.19 to read as follows:
Sec. 21.19. UNLAWFUL ELECTRONIC TRANSMISSION OF SEXUALLY EXPLICIT VISUAL MATERIAL.(a) In this section, "intimate parts," "sexual conduct," and "visual material" have the meanings assigned by Section 21.16.(b) A person commits an offense if the person knowingly transmits by electronic means visual material that:(1) depicts:(A) any person engaging in sexual conduct or with the person's intimate parts exposed; or(B) covered genitals of a male person that are in a discernibly turgid state; and(2) is not sent at the request of or with the express consent of the recipient.(c) An offense under this section is a Class C misdemeanor.(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 or the other law.SECTION 2. This Act takes effect September 1, 2019.
In other words, starting Saturday Sunday it will be a Class C misdemeanor in Texas to send certain images to people without their consent.
You're Using Microsoft Word Wrong
My friends, you have some habits in using Microsoft Word that are making your life more difficult.
More importantly, they are making it difficult for me to collaborate with you, and are therefore making my life more difficult.
First, stop using tabs. Stop hitting the spacebar more than twice (more than once, really) at a time. Stop hitting enter more than once at a time.
Instead, start using styles set up the way that you want them. If you want the first line of every paragraph indented, set "Special Indentation / First Line" in the paragraph format window to whatever you want it to be. Then save your "Normal" style including that indentation.
If instead you want extra space between paragraphs set "Spacing / After" in the paragraph format window.
Never use both. Each signals a new paragraph, so using both is redundant.
Your margins are too narrow. Go to the document format window, and set all four margins to at least 1.5 inches. You're not the AG's Office; you don't have to cram as many words on the page as you can to distract from your bad arguments.
The Kim Ogg Credibility Shitshow
I was a fan of Kim Ogg's candidacy for the Harris County DA. It was time to break the Republican party's chokehold on that office, and Ogg was a good person to do it.
Unfortunately, the promise was greater than the product.
The Harris County District Attorney's Office has been my principle adversary for almost a quarter century, but I don't want it poorly run. Demoralized prosecutors are easier to beat, but prosecutors who are easier to beat are more likely to cheat.
And I'd rather my adversaries didn't cheat.
I'd also rather human beings not be demoralized, as long as they aren't trying to put my clients in boxes. All else being equal, we should all be fulfilled in our lives.
The DA's Office has a morale problem. Kim Ogg is a terrible manager, and she has filled leadership positions in the office with terrible managers. These are friends of mine, and good lawyers, but none of that makes them competent managers/ Line prosecutors are walking on eggshells, afraid to exercise their discretion for fear that higher-ups will punish them for it.
Texas Court Holds Harassment Statute Unconstitutional
This week the Fort Worth Court of Appeals decided Ex parte Barton, No. 02-17-00188-CR, holding unconstitutional section 42.07(a)(7) of the Texas Penal Code.
This is an issue that I have pending in Houston's First and Fourteenth Courts of Appeals, the Texas Court of Criminal Appeals (Ex parte Sanders), and, with the University of Texas's Supreme Court Clinic, in the United States Supreme Court (Ogle v. Texas).
After revenge porn, harassment is the next hotness in free-speech law. It's the next hotness because most lawyers, who don't have free-speech practices and so aren't intimately familiar with that body of law, assume that harassment is unprotected speech.
Jeffrey Epstein's Forlorn Hope
Here's the Southern District of Florida's Nonprosecution Agreement with Jeffrey Epstein:
(sorry, the link is unavailable)
Being off Twitter for the moment, I might not have known of Epstein's arrest on charges out of the Southern District of New York but for Scott Greenfield's blog post. Scott's take was that the fact that the NPA violated the CVRA should not be sufficient to undo the agreement, as a judge in the Southern District of Florida had suggested.
I tracked down the agreement, wondering whether the agreement, entered into by the U.S. Attorney for the Southern District of Florida, was even binding on the U.S. Attorney for the Southern District of New York.
The agreement is not unambiguous. It says (on page 2 of 7):
prosecution in this District for these offenses shall be deferred...
and
After timely fulfilling all the terms... no prosecution... will be instituted in this District.
2018 Word of the Year
A reader was kind enough to remind me, six months ago, that I hadn't written about 2018's Word of the Year yet.
To remind you: every year (since 2017) I've chosen a Word of the Year instead of making a resolution. I got the idea from my hypnosis teacher, Mike Mandel.
2017's WOTY was attention. And 2019's WOTY, which I haven't announced here yet (though I'd broadcast it on Twitter) is lead-as in "to lead," though the noun would probably work too.
2018's WOTY was not really one to broadcast. I'm still not sure I want to share it (which may be a reason it's taken me six months to respond to the reader's reminder): humility.
I have been called arrogant more than once by people whose opinions matter, and I wanted to spend 2018 looking at that aspect of myself.
I didn't do a very good job of it. I'm not very good at humility. Or maybe I'm wrong.
Humility is not the same as modesty. I recognize that I have gifts. If I pretended that I did not have them or recognize them, that would be a falsehood. What's more, it would be an arrogant falsehood, ascribing more importance to my own pretense than to the truth.
What's Wrong with Moral Clarity
I did not run for Congress to be silent. I did not run for Congress to sit on the sidelines. I ran because I believed it was time to restore moral clarity and courage to Congress. To fight and to defend our democracy.- Ilhan Omar (@IlhanMN) April 13, 2019
I'm sure the Representative is a very nice lady who loves dogs and wants the best for America.
But "restoring moral clarity to Congress" is, frankly, frightening.
Take it as a given that congresscritters are immoral, that they legislate immorally and that that's bad. But there's a lot of ground between "immorality" and "moral clarity." And consensus on moral clarity is quite narrow. Take care of your children. Don't murder. Don't steal.... and already we are on the ragged edge of moral clarity, as there are are tribes that make broad exceptions for people from other tribes: It's okay to steal from gadjo, or Igbo, or rich people.
The Keystone of American Freedom
The keystone of American freedom is something that is hinted at in our Constitution:
Congress shall make no law......shall not be infringed.No Soldier shall...
It's more directly referred to in the Declaration of Independence:
whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Yet we very rarely put it into words.
To those who fight in the courts for freedom, it's like water to fishes. We don't even think about it; it's just the way it is.
But to most people it's not intuitive. To people at both ends of the traditional left-right political spectrum, it's upsetting. They will admit that it is true in this case or that, but they can't generalize the rule. It doesn't have to be that way.
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