Monday, April 23, 2018

Lessons for Texas legislators from an unconstitutional revenge-porn statute

As soon as it passed, Houston criminal defense attorney Mark Bennett opined that Texas' "revenge porn" law passed in 2015 was an unconstitutional restriction on free speech. Now, he's backed it up and the 12th Court of Appeals out of Tyler agreed. See coverage from:
Here's the opinion. I am not a lawyer but, given its basis, Grits will go on the record right now to declare there's zero chance the Texas Court of Criminal Appeals as currently constituted will fail to back Bennett and uphold the 12th Court's ruling - even if the case is not decided until after Michelle Slaughter replaces Elsa Alcala.

These are issues the CCA has visited repeatedly, usually unanimously, as Texas prosecutors foisted a series of unconstitutional statutes on the state related to regulating online speech. Whether it's "revenge porn" or "improper photography" or "online solicitation of a minor," Texas legislators and their tuff-on-crime abettors keep tripping over the same thinking errors regarding the state's power to regulate online speech. (See oral arguments in one of Bennett's cases involving the same constitutionality issues before the First Court of Appeals earlier this year.)

Bennett told legislators in 2015 the bill was unconstitutional before it passed, and Grits warned legislators at the time:
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.
Now, here we are three years later and that's exactly what happened.

Bennett has tapped into a vein of First Amendment law which will remain an obstacle to expanding government power to criminalize online speech in the ways legislators and our prosecutor friends might like. The things they can criminalize are already criminalized, and the fact of a new medium doesn't change the same First Amendment rights that let Larry Flynt publish Hustler. They don't get to make up new rules and these statutes all ignore the old ones. The next time Bennett tells legislators one of their bills is unconstitutional, regardless of what the DA's association tells them, maybe they ought to listen.


Mark Bennett conditional fan said...

Mark Bennett could be a savior to many of the folks charged with sexual offenses. He has the talent and the tenacity to make a difference in the horrible web of criminality constructed around sex and sexuality in this state. But he is not interested, unless you have unlimited funds. I do not begrudge Mark a living, he's kick ass and deserves the accolades. But he and his ego could live the rest of his life off of killing some of these horrible laws; his reputation building with each one he tore down. But the vast majority of SO's and their families are relegated to the margins after conviction. When you are worried about having a roof over your head, or of having an income, justice is a luxury. I just wish Mark would consider what we, SO's and their families would be capable of raising to support his efforts if he fought for us as a class.

Jordan Jones is lucky to have had Mark Bennett as his attorney. His victim, not so much. But perhaps the next time the state attempts to protect victims of this type of vengeful action, they should consult Mark Bennett (regardless of his massive ego) before bothering to write more junk laws.

Steven Michael Seys said...

The problem of revenge porn has already been addressed in the Federal copyright law. You cannot publish a person's image without their prior written consent. What angers the prosecutors is that this is a civil statute and they can't get their hands on the perpetrators. With crime rates steadily dropping, the prosecutors must drum up business from somewhere before the voters downsize their office like any business in decline.

Gritsforbreakfast said...

"You cannot publish a person's image without their prior written consent."

@Steven, this is not correct. The First Amendment specifically DOES let another person's image be published without their consent in almost all circumstances. Photography is expression. This is why Texas' Improper Photography law was struck down on essentially similar grounds.

walt said...

As lawyers, we all watch other lawyers work. We examine which arguments carried the day and which didn't. This is what I love about our profession. Regardless, of whether you are a man or woman, black or white, Harvard or a Texas School, what matters is your legal thinking.

I don't doubt that Mark is expensive and worth it. Superficially, that may seem unfair to those who can't afford Mark. However, all lawyers regardless of fee schedule can read his work, use Mark's work and their clients can benefit from it.

Good work Mark.