Revenge porn, online solicitation bills clear Senate despite First Amendment problems

The Texas Legislature seems intent on keeping Houston attorney Mark Bennett busy beating down unconstitutional statutes in an ongoing game of whack-a-mole. A pair of bills have passed the Texas Senate and been sent to the House which, if passed, will likely immediately fall within Bennett's crosshairs (or some other attorney challenging on First Amendment grounds).

Sen. Joan Huffman's SB 344 attempts to reinstate Texas' online solicitation of a minor statute, which the Court of Criminal Appeals unanimously struck down in 2013. But Huffman didn't adopt all the changes Bennett insists are necessary to prevent it from being attacked again on First Amendment grounds. Bennett has praised Huffman's bill for being "much closer to constitutional than the statute as it exists now." But he also laid out in the same post exactly how he'll challenge the statute as proposed and what changes would be necessary to make it constitutional, so if the House doesn't revise it they'll have nobody but themselves to blame. The companion bill, HB 861 by Tony Dale, has cleared committee and is waiting for the Calendars Committee to set it for a floor vote, at which time Huffman's bill will be substituted in and finally passed.

Meanwhile, Sen. Sylvia Garcia's "revenge porn" bill, SB 1135, also cleared the Senate this week, though its companions are not so far along. The Dallas Morning News coverage referenced none of the constitutional concerns, but the bill in its present form almost certainly won't pass First Amendment muster. Analyzing the bill earlier this week, Bennett explained that:

Since the speech restricted does not fall into a recognized category of unprotected speech, under current Supreme Court (and Court of Criminal Appeals) jurisprudence this statute does not pass First Amendment muster. Proponents of this law would have to convince the Supreme Court to recognize a new category of historically unprotected speech that covers most of the speech forbidden by the statute. That’s long odds.

The bills to reinstate the improper photography statute, by contrast, don't appear to be moving.

Observing the Lege pass laws one can already tell are unconstitutional is like watching a slow moving train wreck. You can see a crash is coming well in advance but it seemingly can't be stopped. They pass these laws now then a couple of years later the courts declare them unconstitutional and the state has to figure out what to do with everybody who was convicted under invalid statutes. (Rep. Alonzo's bill on appointment of habeas counsel aims to address that topic.) We've already seen this movie and Denzel Washington doesn't show up at the end to save the train from derailment. It just flies off the tracks.

Tracking First Amendment challenges to Texas criminal statutes

Mark Bennett has a nice post up at Defending People detailing the ongoing First Amendment challenges to various Texas criminal statutes. Check it out.

After Mark's victory challenging the constitutionality of Texas' online solicitation of a minor statute on First Amendment grounds, I think a lot of folks - though regrettably, not yet legislators - are taking his arguments on these questions more seriously than not too long ago. If he's right, several more Texas statutes limiting sexual-themed speech may ultimate fall, probably starting with improper photography.

CCA to decide if Texas' improper photography law unconstitutional

The Texas Court of Criminal Appeals on Wednesday held oral arguments regarding the constitutionality of Texas' "improper photography" statute in a case styled Ex Parte Thompson. There's a post on the case from Eugene Volokh, who along with Don Flanary III of San Antonio argued the case on behalf of the defense, and one from Mark  Bennett, who has long held that this statute violates the First Amendment. See also prior Grits coverage, and here's the state’s brief, defendant’s brief, and an amicus curiae brief from the Reporters Committee for Freedom of the Press, whom Volokh represented.

Mark Bennett argued that:

The San Antonio Court got the question of whether 21.15 is content-based or content-neutral wrong. (It matters because a content-based statute has to pass stricter scrutiny than a content-neutral one; the San Antonio Court found that 21.15 did not even pass the lesser scrutiny.) ...

For the convenience of courts of appeals for whom this concept might be too complex, I offer the Grumpy Cat Rule: If the statute favors images of grumpy cats over other images, its regulation of speech is content-based.

Following the Court of Criminal Appeals unanimously overturning the online solicitation of a minor statute on First Amendment grounds, this may be one to watch. Prosecutors are worried that, since the online solicitation statute was struck down on essentially similar grounds to the Fourth Court of Appeals ruling in this case, the improper photography law might also be deemed unconstitutional. I wouldn't be surprised. Time will tell.

Odds and ends: Successes, failures, and general weirdness

Here are a few items that caught my attention this week but haven't made it into individual posts:

Constitutional challenge to 'improper photography' statute
Reported KDFW TV in Dallas, "An appeals court in San Antonio ruled the improper photography statute unconstitutional because it is overly broad and that violates our First Amendment rights.  The case is now before the Texas Court of Criminal Appeals waiting for a final ruling." See prior Grits coverage.

Crappy, unaccountable judges a 'fact of life' in Texas
Reported the Houston Chronicle:

Court reformers say bad judges are a fact of life in Texas, one of only eight states that uses partisan elections to pick its arbiters of justice. They say it is a system that results in unqualified candidates getting swept into office with political cycles and in qualified judges getting booted out for no good reason ­- or not wanting to run in the first place. 

Lawyers also are critical of how rarely Texas judges are publicly disciplined or removed from office once they get there, while some legal scholars note how loosely courts are administered here.

There are some good ones, too, but it's hard to argue with that assessment.

Man with most to lose: Change nothing
A Travis County lawyer who averages 615 appointed indigent criminal cases per year - the most of any attorney and well above the American Bar Association's recommended caseloads - says he sees no need to overhaul the indigent defense system, naturally.

'Bernie' released into custody of movie director
Bernie Tiede, the East Texas murderer who was the subject of an eponymous, dark comedic feature film by Austin-based director Richard Linklater, has been released on bond on the condition that he live at Linklater's house. Surreal, huh?

Gambling, what gambling?
A pair of Johnson County Sheriff's deputies were providing security for a racetrack busted by DPS for illegal gambling. Initial news reports say they didn't know what was going on, but then that calls into question their law enforcement acumen, doesn't it?

No more proxy marriages in prison
A new law inadvertently ended the practice of "proxy" marriages by prisoners, some of which involve women they met as pen pals while serving time. I've known ex-prisoners who've enjoyed long, loving marriages with women married by proxy, while other situations don't work out as well, to put it mildly. It's a strange aspect of prison subculture that receives little attention, so I'm not surprised lawmakers never considered it when the Lege passed a statute last spring requiring both parties to be present during a marriage ceremony. "'We didn't realize we were going to open up a can of worms,' said Scott Riling, chief of staff for Rep. Trent Ashby, the Lufkin Republican who authored the bill to prohibit proxy marriages."

Focus on veterans
The Defense and Veterans Affairs and County Affairs committees next week will hold a hearing in San Antonio related to veterans courts and peer-to-peer veterans mental health counseling for justice-involved veterans with mental health issues, PTSD, and traumatic brain injury.

Bexar County jail population edging up, but down from last fall's peak
So says this TV news report.

Hearne cop shot 93-year old woman
Reported the Waco Tribune Herald, "Authorities are investigating the shooting of a 93-year-old woman by a Hearne police officer who was involved in the fatal shooting of a Hearne man in December 2012."

The CIA's Lone Star weapons cache
The CIA has allegedly used a secret weapons depot in Boerne, TX to ship weapons around the world in secret wars dating back to the Bay of Pigs.

Forensic Fails
Business Insider published a good overview of problems facing America's forensic experts and crime labs that illuminate many of the issues facing Texas on the topic.

First Amendment fouling Texas prosecutors' efforts to criminalize sexual content

Following up on the Court of Criminal Appeals' 9-0 decision to overturn part of Texas' law on online solicitation of a minor as facially unconstitutional, the executive director of the Texas District and County Attorney's Association, Rob Kepple, admitted on their user forum that he helped draft the language nullified unanimously by the high court:

OK, I fess up to being involved in the drafting of this statute. Seemed like a good idea at the time. The thought was that the "intent to gratify" element would take it into constitutional territory. I agree that a teacher sending a kid a book or discussing it could be protected speech, but if the teacher is sending certain passages of 50 Shades of Gray along with other inappropriate messages, seemed like grooming conduct which would support a constitutional prosecution.

If Mark Bennett has his way, Kepple will be issuing more such mea culpas in his future. Still glowing in the wake of his victory at the CCA overturning Sec. 33.021(b) of the Texas Penal Code, he offered up this post arguing that "Sections 33.021(c) and (d) com­bined explic­itly crim­i­nal­ize fan­tasy, for­bid­ding speech—fantasy speech—that is pro­tected by the First Amendment." "You read it here first," he wrote, "Sec­tion 33.021(c), com­bined with Sec­tion 33.021(d), is unconstitutional." Bennett concluded with this admonition for his fellow criminal defense lawyers:

I hate to sound unnec­es­sar­ily arro­gant, but there are very few lawyers in Texas whom I would trust to han­dle these chal­lenges. This is a very spe­cial­ized area of the law, at the inter­sec­tion of the First Amend­ment and crim­i­nal law. Most lawyers thought I was crazy to say that 33.021(b) was uncon­sti­tu­tional; they kept plead­ing those cases even after they knew about the pend­ing appeal in the Texas Court of Crim­i­nal Appeals.

If you’re a lawyer, please don’t try this at home. Call me and we’ll do it together.

Probably good advice. And speaking of advice on the intersection of criminal and First Amendment law, on the Texas prosecutors' user forum this week Brazos County prosecutor John Brick solicited some regarding another statute Bennett has argued is unconstitutional - Texas' improper photography statute. He wrote:

I need help with this scenario – i.e., is this an Improper Photography (21.15 TPC) case or not:

Girl 1 has child with guy. Guy starts dating Girl 2. Girl 1 finds a pic of Girl 2 topless on guy’s phone. Girl 1 posts the topless pic on Facebook & Instagram and calls victim bad names. The elements read that a person commits a crime if the person: photographs or by videotape or electronic means, records, broadcasts, or transmits a visual image of another at a location that is a bathroom (it is in this case) A) without the other person’s consent, and B) with intent to invade the privacy of the other person.

Suspect can also be charged if: knowing the character and content of the pic, they promote it.

Q1: do you think the defendant has to be the one who actually photographs or records, or do you think the statute reads that they can simply transmit a visual image?

Q2: do you think Girl 2 waived her privacy claim by sending it to someone in the first place?

Q3: what the heck does “knowing the character and content” mean? Do we have to prove the same elements as the underlying (lack of consent and intent to invade privacy)?

Kleberg County DA John Hubert replied:

OK, I'll attempt this one..

Q1. simply transmitting is enough.

Q2. No. Girl 2 sent this to Guy 1. If Guy 1 shared it, there might be an issue of whether G2 waived or not. However, if Girl 1 is getting the pics from the guy without his knowledge, I think there is a privacy issue. Also, you have to look at the intent...it is with intent to invade another's privacy...

Q3. OK, "knowing character and content" may be a little more squishy, but I think that a picture of a person in a bathroom with clothes on but doesn't see a person in the bathtub in the background who is showing some skin might be an example of NOT knowing character and content...... but that would be a question for the jury.

Anyone disagree?

Certainly Mark Bennett does. Indeed, a prosecutor from Groesbeck warned Brick that Bennett's First Amendment tonic may sour Hubert's optimistic argument: "Just keep in mind that the Fourth Court has ruled this statute facially unconstitutional. Coupled with the CCA ruling ... striking down a portion of the online solicitation statue on nearly identical reasoning, I would be cautious here." (See Grits' post from September on the Fourth Court of Appeals' opinion.) The improper photography statute now appears ripe for consideration by the Court of Criminal Appeals since the First Court of Appeals earlier upheld its constitutionality, meaning the law is being interpreted differently in different Texas jurisdictions.

Bottom line: Now that Bennett has busted this First Amendment nut open at the CCA, a number of similarly themed statutes criminalizing possession or transmission of sexual content could well fall like pecans in autumn. And our friends at the prosecutors' association may have more fessing up to do.

Is Texas' 'improper photography' statute unconstitutional?

Somewhere, Mark Bennett must be smiling after the Fourth Court of Appeals declared Texas' "improper photography" law unconstitutional. Now the Court of Criminal Appeals will be asked to resolve differing opinions among Texas appellate courts, reported KSAT out of San Antonio (Aug. 30):

The Fourth Court of Appeals declared the Texas Improper Photography Statute unconstitutional on Friday.

District attorneys say Section 21.15 of the Penal Code, known as the Improper Photography statute, makes it a state jail felony to visually record or photograph another person without their consent to arouse or gratify the sexual desire of another person.

"I was very surprised this has proven to be an important statue in what I could call the digital age this is the kind of statue that prevents someone from photographing under a woman’s skirt,” said First Assistant District Criminal Attorney Clifford Herberg Jr.

The defendant in the case was arrested for taking pictures of children in their swimsuits at Sea World. He filed a pretrial habeas corpus writ challenging the constitutionality of the statute. "Thompson argues innocent photographers run the risk of being charged with violating the statute because the government is attempting to regulate thought, a freedom protected by the First Amendment," said the appellate ruling. The court found that the "location identifier" in the statute — "at a location that is not a bathroom or private dressing room — is so broad the statute seems to criminalize conduct in areas where individuals have no expectation of privacy," including public spaces like an amusement park.

See the Fourth Court's opinion (pdf). H/T: PetaPixil.

MORE: From Eugene Volokh.