There are three bills up on Wednesday's Texas House Criminal Jurisprudence agenda which would criminalize revenge porn. But Houston attorney Mark Bennett, arguably Texas' premier expert at the moment on the intersection between the First Amendment and criminal law, made the case this morning that all three bills are unconstitutional on First Amendment grounds. (See here for more background.)
Bennett argues that the bills propose a "content-based" restriction on speech which is "presumptively
unconstitutional under the First Amendment" unless it falls within "nine recognized categories of unprotected speech." "For this or any other revenge-porn statute to pass constitutional
muster, the Supreme Court would have to recognize another category of
historically unprotected speech," he pointed out. "In Arizona, enforcement of the nonconsensual-pornography criminalization
statute was almost immediately stayed on First Amendment grounds by a
U.S. District Court."
Mark's the attorney who successfully convinced the Texas Court of Criminal Appeals - hardly a bunch of libertines - to vote 9-0 to invalidate Texas' online solicitation of a minor statute. So it'd be wise for legislators to consider Bennett's counsel. If they don't, he may well be the guy knocking the law down on the back end.
With statutes regarding online solicitation of a minor and improper photography recently struck down by Texas courts over First Amendment problems, it's clear there's a tension over legislators' desire to limit lewd pictures and dirty talk to a greater extent than the Constitution allows. If Bennett's right - and his recent track record on these subjects has been excellent - these bills are unlikely to survive First Amendment scrutiny by the courts.
This is an ounce of prevention vs a pound of cure situation. It'd be a
lot simpler to kill the legislation in committee than to make Bennett or some other criminal defense lawyer fight in
court for years post hoc to reach the same result.
MORE: Check out a recent academic article on the constitutionality of anti-revenge porn laws.
But .. but .. if the law gets passed then police and prosecutors get to send a few unlucky slobs through the court wringer before it is finally struck. Somewhere I'm sure there is at least one member of each of those two groups that would consider such an outcome desirable. Not as desirable as having the law survive of course, but still desirable.
ReplyDeleteBetter to spend the money on education efforts along the lines of "Don't Mess with Texas" or "Give a hoot, don't pollute!"
ReplyDeleteSomething that conveys a message like "Today's porn is tomorrow's REVENGE porn" except more hip and catchy... Maybe hold a jingle contest for high school kids or something.
Im all in for the jingle contest...sure to find some up and coming media and marketing moguls in that mix...2:05, your right, there will be at least one member who sees a way to "educate", for a nominal fee of course, to add to their own coffers...just sayin'
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