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:

• Techdirt
• Texas Tribune
• Austin Statesman
• Houston Chronicle

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.

On forensic oversight, backlogs, and prospects for revenge-porn statute's constitutionality

As I head out of town again for a couple of days, here are a few items which merit Grits readers attention:

• Anthony Graves' appointment to the Houston crime lab board has been making headlines. Perhaps just as significant, his attorney Nicole Casaraz who secured his exoneration will replace Scott Hochberg as the board chair. That's an unusual profile for a crime lab, particularly one whose management was recently made independent of the police department. Congrats to both of them!
• The 5th Circuit Court of Appeals reinstated a lawsuit by two former Houston crime lab employees (from when it was run by the police department) who alleged that "Harris County prosecutors retaliated against them after they exposed problems with the city's breath-alcohol testing vans, or 'BAT vans.'"
• In San Antonio, somehow I'd missed news this spring that hundreds of DWI blood tests were mishandled in a contracted lab and the new DA couldn't use the evidence in cases. Oops.
• Dallas is beefing up staff in its sex crimes unit in anticipation of performing DNA testing on more than 4,000 backlogged DNA tests.
• Texas' much-lauded revenge porn statute appears on a collision course with recent First Amendment jurisprudence, as Mark Bennett tried to explain to legislators during session. For my part, I wish the debate weren't as facile as it has become, where valid legal criticisms are dismissed as detritus and the Lege just passes laws which poll well but cannot withstand constitutional scrutiny. We've done this a bunch in Texas now, with online solicitation, improper photography ... now we appear poised to go through the same rigmarole on revenge porn. Grits has nothing good to say about anyone who would engage in this activity, but acknowledging the legal complexity of the situation does not condone the behavior. In fact, it's how serious people go about actually solving a problem. We'll see how the courts receive the new statute; I'm not sanguine it has much chance of withstanding scrutiny, good intentions and high-toned rhetoric notwithstanding.

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.

Bennett: Revenge porn bills face insurmountable First Amendment hurdles

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.