Pop Law

Most people who aren’t securities lawyers—other lawyers included—don’t have opinions on what SEC regulations say.

Most people who aren’t probate lawyers—other lawyers included—don’t have opinions on the best way to write a will.

Yet everybody—other lawyers included—has opinions about what the criminal law says, and how to try a criminal case. And virtually all of them are wrong.

Everybody—other criminal lawyers included—has opinions about what First Amendment law is. And virtually all of them are wrong.

Almost everybody thought I was crazy for attacking Texas’s online-solicitation-of-a-minor statute for violating the First Amendment, because it’s solicitation, and everybody knows that solicitation of children is not protected by the First Amendment. And besides, talking dirty to minors couldn’t possibly be protected speech, because it’s talking dirty to minors. But the fact that the Texas Legislature calls it “solicitation” doesn’t make it solicitation, the fact that the Texas Legislature calls them “minors” doesn’t make them minors, and speech—even dirty talk to minors—is protected unless it isn’t.

The prosecutor, even after (presumably) reading the very conservative Texas Court of Criminal Appeals’ 9–0 opinion agreeing with me, thinks it’s a crazy idea:

[T]his Court should have held, in accor­dance with the con­trol­ling case law regard­ing the First Amend­ment over­breadth doc­trine, that Sec­tion 33.02l(b) crim­i­nal­izes a sub­stan­tial amount of pro­tected speech.… This is an impor­tant dis­tinc­tion as sex­ting with chil­dren is not cov­ered by another crim­i­nal statute, and this Court’s opin­ion will be con­strued to hold that it is now con­sti­tu­tion­ally pro­tected speech. Is that what this Court intended?

Sexting with children qua sexting with children is constitutionally protected, just as speech qua speech is. Sexting—as any speech—may be solicitative, or obscene, or both, but if the sexting, or the speech, doesn’t fall into a narrow and clearly defined category, recognized by the U.S. Supreme Court, of historically unprotected speech, it is constitutionally protected speech.

The fundamentals of criminal First Amendment law are not highly complex. If the criminality of speech depends on its content (if, for example, taking a photograph of a dog is legal but taking a photograph of a human in the same circumstances is prohibited), then there is a content-based speech restriction. If a speech restriction is content-based, it is presumptively illegal. For the statute to pass muster the speech restricted must fall into one of a very few narrow categories of historically unprotected speech: speech integral to criminal conduct, obscenity, fraud, defamation, incitement, or solicitation.

Those are the fundamentals. And First Amendment amateurs (including law profs and appellate lawyers) will take that list of categories and cram whatever speech they don’t like into one of them. Revenge porn? It’s obscene! Upskirt photography? It’s integral to criminal conduct! Offensive speech of any sort? It’s incitement! Sexting children? It’s…um…errr…solicitation! and icky!

But “narrow” means that none of these categories give the State carte blanche to restrict speech; when it comes to free speech, the opinions of amateurs on what is and isn’t protected thankfully do not matter.

“Thankfully” because amateurs who think that speech that they dislike must not be protected very rarely consider the collateral consequences of broadening the categories of unprotected speech. If we go around stretching these narrow categories of protected speech to allow restriction of this speech and that speech we don’t like, soon there will be nothing left.

22 responses to “Pop Law”

  1. Mark – you did a great job. I am in need of reminder of your points. I think we are all.
    I am glad you stood up and I am glad you hold the line. In the heat of the moment I usually want to shove a plunger down someone’s throat. But you are right in protecting free speech.

    Of course being a contrarian I want to come up with obscene defamatory speech that’ incites fraudulent conduct.


  2. Another question has occurred to me that may merit discussion. (Thank you for the invitation to comment here.) I don’t presume to be an expert on the First Amendment, but my recollection is that the preliminary step in the analysis is to decide whether the conduct at issue is “speech.” I think maybe we (most likely just me) have been operating under the assumption that all photographs and videos are necessarily speech, but that isn’t necessarily true.

    For example, would a family portrait be considered “speech”? Is there an intent to convey a particularized message by taking such a photograph, combined with a likelihood that others will understand that message? If I accidentally snap a photo of my finger covering the lens, is that speech just because it’s a photo? I think a good argument could be made that it’s not, in both cases, at least for a traditional family photo of everyone wearing their best clothes and smiling at the camera. (There’s an addendum to everything.)

    Perhaps the same reasoning extends to surreptitiously photographing the area beneath a person’s clothes when those photos are used solely for masturbation or a similar use. What message is a person intending to convey in that photograph? Or, more to the point, is there any message? I can see an argument that it would be speech if a person took photos of parts of people’s bodies that were exposed to the general public and then posted them online in a blog about how tasteless and lewd people are these days. But I don’t think that’s what the defendant in question was doing.

    I think the proper issue in this defendant’s case is not whether the statute can generally prohibit photographing areas of a person’s body that are not exposed to the public, but whether the defendant actually violated that statute. I’m just not sure that the First Amendment gets involved every time someone snaps a photo.

    For what it’s worth, I thought you were absolutely right about the online solicitation of a child statute. And I also agree that too many people like to eat away at protections for speech they disapprove of without considering the consequences. I personally don’t think it’s fair to assume that I’m one of the people in that category based on this discussion; I could just be wrong on the law.

    • Photography intended for publication—in the broad sense—is certainly speech, even if it’s solely for its viewers’ masturbation. See, e.g. Hustler, Penthouse. Photography not meant to be shared? Perhaps not speech. But if a statute forbids all photography based on its content, it doesn’t discriminate between speech and not-speech, so it’s a content-based speech restriction. There ought, as I’ve noted before, to be a facial unconstitutionality challenge made to the Massachusetts statute.

      • I freely admit to talking too much. I did mean taking the photos for personal use, I wasn’t clear.

        But that just brings us back to whether doing an act that necessarily requires a physical invasion of another person’s privacy is always constitutionally protected speech. Assuming that the photos that defendant was taking were of body parts not open to the public, and that the only way to obtain that same view could only be achieved by physically invading a person’s clothing, I don’t see any constitutional problems with making that conduct illegal. Either it’s not speech, although I concede your point that there are some circumstances in which it could be, or it’s “speech” that can’t be obtained without independently violating the law. If it’s the latter, then the fact that the person is breaking the law for the purpose of creating “speech” should not insulate him from criminal prosecution for the underlying conduct.

        Even if the photos themselves are constitutionally protected, it doesn’t necessarily follow that the person’s conduct in obtaining those photos is constitutionally protected. If the underlying conduct is constitutionally criminal, it shouldn’t matter that the defendant also took that opportunity to create speech, either under the “speech integral to criminal conduct” exception or under strict scrutiny analysis.

        • Here’s the Mass. statute:

          Who­ever will­fully pho­tographs, video­tapes or elec­tron­i­cally sur­veils another per­son who is nude or par­tially nude, with the intent to secretly con­duct or hide such activ­ity, when the other per­son in such place and cir­cum­stance would have a rea­son­able expec­ta­tion of pri­vacy in not being so pho­tographed, video­taped or elec­tron­i­cally sur­veilled, and with­out that person’s knowl­edge and con­sent, shall be pun­ished by impris­on­ment in the house of cor­rec­tion for not more than 21/2 years or by a fine of not more than $5,000, or by both such fine and imprisonment.

          To arrive at your conclusion you must assume a great deal—such as that the photographer has to “physically invade” someone’s clothing and that this “physical invasion” (mirror on the shoe? iPhone held down low) violates the law—that is probably not true. You must also assume that “privacy” can trump free speech—a position that the United States Supreme Court has never taken in a criminal case.

          The constitutional problem with making photographs of people’s genitalia is that it’s a content-based speech restriction, so that it’s presumptively unconstitutional, and the speech doesn’t fit into any recognized category of historically unprotected speech. So in order to uphold the statute the Supreme Court would have to find another category—something that the Court is extremely reluctant to do.

          I get that you devoutly want this to be the law. Step away from that for a moment and make a legal argument based on some authority other than “should.” Otherwise you’re illustrating the point of this post.

          In short, citation required.

  3. I feel like we’re talking past each other. I don’t “want” taking photographs up women’s skirts to be illegal, I’m analyzing my understanding of the law and coming to the conclusion that that conduct can be made illegal. If you disagree with me, that’s fine. But don’t pretend that I’m wrong because I’m so blinded by ideology that I can’t reason correctly.

    If a person cannot put his head underneath a woman’s skirt, he can’t put his camera underneath her skirt. Likewise, if he can’t lift her skirt up, then he can’t lift her skirt up to take a photo. I’m not assuming that the former is actually criminal, I’m saying “if it is.” I’ll make it even more general: If you can’t do it without a camera, you can’t do it with a camera.

    That’s where we come to bathroom photos. In Texas, it’s disorderly conduct for a person to go into a public, occupied bathroom stall without that person’s consent for a “lewd or unlawful purpose.” I don’t think there’s a legitimate argument that that conduct can’t be made illegal. So why would it suddenly become constitutionally protected speech if instead of physically invading the bathroom, he installed a camera that uploaded video to a website?

    I’m not assuming privacy rights trump free speech. I’m saying that if the underlying conduct is properly illegal, adding a camera doesn’t transform that conduct into constitutionally protected speech. That’s the definition of “speech integral to criminal conduct,” a category of speech long recognized to be unprotected. The consequences of your argument is that any person with a camera has a constitutional right to any woman’s body that she’s actively trying to conceal from public view. Does that make sense?

    • No.

      You are trying to answer an “as-written” (facial) attack on a content-based statute by treating it as an as-applied attack on a time-place-or-manner statute.

      Unless you are emotionally invested in the statute being constitutional, that does not make sense.

      • I disagree that I am arguing an “as applied” challenge to the law. In my opinion, the law survives an overbreadth challenge because it doesn’t seem to reach a significant amount (or really any) constitutionally protected speech. My argument is that the speech at issue does indeed fall into one of the categories of unprotected speech: speech integral to criminal conduct.

        But you obviously disagree with me. Please explain, then, how any conduct that falls under the particular statute at issue could in any circumstance be “speech” that is not “integral to criminal conduct.” I’m emotionally invested in logic, not in this law.

      • Please explain, then, how any con­duct that falls under the par­tic­u­lar statute at issue could in any cir­cum­stance be “speech” that is not “inte­gral to crim­i­nal con­duct.”

        I already have. You don’t want to hear it. (Either that or you’re trolling me.)

        •Photo taken through mirror on shoe.
        •iPhone on floor.
        •Video camera in bathroom owned by the defendant.

        None of these involve conduct that is explicitly illegal. All of these involve speech (at least if the photos are to be published).

        The law in this area is actually written down where you can read it, and “integral to” doesn’t mean what you seem to think it means. Speech “integral to” criminal conduct is speech that is an “integral part” of criminal conduct. Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949). There’s no good argument that taking a photo when you’re trespassing makes taking the photo an integral part of the crime: you could commit the crime just as well without taking the photo. How about Ferber? “the Supreme Court’s discussions of the ‘dry-up-the-market’ rationale have made clear that to be justified by that rationale laws must target explicitly illegal activity.” United States v. Richards, — F. Supp. 2d —-, 2013 WL 1683639, at *8 (S.D. Tex. Apr. 17, 2013) (Lake, J.).

        I ask you for legal argument, and you continue bringing me “opinion,” unbacked by any authority.

        I appreciate you accepting my invitation to come over here and illustrate my point: Everybody has opin­ions about what First Amend­ment law is. And vir­tu­ally all of them are wrong..

        You’ve succeeded beyond my wildest expectations.

        Thank you, and goodbye.

  4. I don’t think Kaylei trolling here at all. I see no agenda-pimping going on, and she seems like a genuinely curious outsider to this subject who is trying to raise what she (and I, for that matter) perceive as legitimate points about what constitutes speech in all of this. Maybe I only sympathize with her because I am an unwashed outsider as well (I mean I took Advanced Torts in Law School but that’s like taking a defensive driving class to be a NASCAR professional). Or maybe I’m an ideologically charged idiot too, and I just don’t know it yet.

    But to me, her position boils down to this:
    1.) Pictures are videos are not all per se speech. 2.) Most pictures or videos that are speech are incident to criminal conduct and are therefore not protected.

    Regarding #1…Logically, it would seem to me the statute’s only a content-based speech restriction on photographs if all photographs = speech, a premise you seem to assume without trying. You proclaim in your last post, “All of these involve speech (at least if the pho­tos are to be published).” Really? That seems like a large (and frankly strange) leap to make. Maybe the guy with the mirror shoes just wanted to dress like Captain Eo. Form of expression? Maybe. But speech? You lament the “collateral consequences” of broadening what is unprotected speech, but that’s a two-way street–there are certainly collateral consequences from overbroadly classifying things as protected speech as well. And what does “published” mean today, anyway? Admittedly I haven’t done enough research to verify, but I have a sneaking suspicion most of the cases defining/applying the term “publish” (Ferber and the like) came down long before the Age of the iPhone. “The law in this area is actu­ally writ­ten down where you can read it[,]” say you, italics incorporated throughout to provide extra venom. Great! So is the Code of Hammurabi. I get that stare decisis is a thing, but to any outsider removed from this wonderfully labyrinthine, esoteric world that is First Amendment law, drawing an arbitrary distinction in 2013 between, say, a live-streaming camera that beams images straight to Lester the Molester’s computer but erases whatever is filmed once it’s recorded, and a camera that snaps a single picture to Lester’s computer that he can print out and pin on his wall, seems beyond absurd…the latter camera is the more violating one, since it gives Lester a permanent record of his ‘achievement,’ but is also the one that would constitute a “publication” and therefore might be protected as speech, whereas the first camera would not be? Bizarre.

    Regarding #2…sure, trespassing on someone else’s property can happen without snapping illicit photographs. I get that. But what about, like, battery? Going to Kaylei’s earlier point that lifting up someone’s skirt to see what’s underneath reasonably could be equated with furtively sneaking a camera under said skirt, who’s to defiantly proclaim that it’s “probably not true” (your words) that such an action would in no way be “integral to criminal conduct,” or pertain to an action that is “explicitly illegal?”

    I’m typing this thing off the cuff–I haven’t dutifully pored through the Reporters to back up any of my points. Guilty as charged. But to me, Kaylei’s points merit more discussion than simply throwing a few citations out there, italicizing a few words of emphasis in your posts, and dismissing in a huff someone who “[doesn’t] presume to be an expert on the First Amendment” as Exhibit A of All the Morons Out There. Just sayin’.

    • This post wasn’t about the unconstitutionality of Massachusetts’s peeping-tom statute. That post was. This post was about how people—even lawyers—unfamiliar with First Amendment law feel qualified to opine on it in ways that people unfamiliar with probate law or securities law don’t feel qualified to opine on those subjects.

      You and Kaylei are both obdurately treating a facial challenge to a content-based restriction as an as-applied challenge.

      A content-based restriction is presumptively invalid unless the speech fits into a narrowly defined category of historically unprotected speech.

      It would not be an answer to a facial challenge to say that some violations of the law will be conduct rather than speech. Nor would it be an answer to say that some of the speech will be integral to criminal conduct—even if “integral to criminal conduct” meant “incidental to criminal conduct.”

      Which it doesn’t. I hate to resort to arguing from the dictionary, but “integral” means “necessary to make a whole complete.” Even if the defendant lifts the victim’s skirt to take the picture (an assault under Texas law—offensive touching of the person or (by caselaw) of something intimately associated with the person), the picture is not necessary to make the assault complete.

  5. Mark, great job. I didn’t include the First Amendment arguments in the writ I did because I had read the entire file on your writ. I didn’t think I could say it any differently and certainly not any better than you had. I was thrilled when Justice Cochran used some of my same reasoning in the opinion. I’m glad someone took that law out, even if it couldn’t be me.

  6. Harrumph. I’m still smarting that you lured me with that leading email subject-line to fall on the wrong side of this!

    But great job Mark.

    Now, let’s put our dad-hats on for a moment: if someone sexted my kid, I’d address the situation myself. As strongly as I agree the State has no business there, just as strongly I believe my business IS there!

    • That this is a parent’s business was part of my argument at the Court of Criminal Appeals. Call me conservative, but I think that the fact that it is parents’ business militates against it being the State’s business.

      • I like you too much to call you pejoratives like “conservative”!
        Agreed–always keep power as local as possible. Individual first, then family, then community, city, state…followed very distantly by a small, broke, disrespected federal.

        I guess on the latter two out of three ain’t bad.

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