Two Wins to Sandwich that Loss


I wrote yesterday about a loss, so I hope you’ll indulge me in talking about two recent wins, one before the loss and one after.

A couple of weeks ago I described my bizarre oral-argument experience in Tyler, where the prosecutor (bless his heart) melted down in front of the court. I wrote:

When you’re arguing with the court about how big you’re going to win, it’s a pretty good day.

Here is the argument, for you appeal junkies. It’s not my best work—I get off to a rough start—but the prosecutor’s meltdown, and his subsequent concession that the statute is overbroad, are well worth it.

And indeed, it turned out to be a very good day. I didn’t win as big as I hoped, but I won big: the Tyler Court of Appeals held unconstitutional Texas’s revenge-porn statute, which I had been calling unconstitutional since before it was passed.

Some interesting features of the opinion:

First, the bad: The court paid lip-service to “essentially intolerable invasions of privacy.”

Privacy constitutes a compelling government interest when the privacy interest is substantial and the invasion occurs in an intolerable manner.

It’s not terrible—just because privacy constitutes a compelling government interest doesn’t mean the government can restrict speech in that category—but I’d rather have courts recognize that when the Supreme Court is talking about “essential invasions of privacy” it is talking about invasions of the hearer’s privacy, not its subject’s, and distinguish that from the speech that the Texas Legislature is desperate to criminalize. I’ve written about this before. The meme really needs to die before it gets too far out of control.

Now the best part (aside from “we reverse”): The Tyler Court shot down the “obscenity by context” argument that has been proposed by the advocates of revenge-porn criminalization:

Here, Section 21.16 does not include language that would permit a trier of fact to determine that the visual material disclosed is obscene. Moreover, if, as the State argues, any visual material disclosed under Section 21.16(b) is obscene, the statute is wholly redundant in light of Texas’s obscenity statutes.

I wrote about this argument here, and I’m glad that the Tyler Court adopted it enthusiastically.

Various media sources wrote about the opinion. Only one bothered to call me; the rest got things wrong. (One of them even quoted the carceral law professor who had proposed the “obscenity by context” argument that the court shot down).) The false notion that the Attorney General might appeal the case persists in these reports. It is false because the Texas Attorney General has no jurisdiction to appeal. The State Prosecuting Attorney (SPA) has said that she will file a motion for rehearing and a petition for discretionary review.

Since the SPA filed briefs in my Waco revenge-porn case, and since I notified the Tyler court to that fact, I’m not at all concerned that the SPA will convince the court to change its mind on rehearing.

And since I’ve read the SPA’s briefs in my Waco case, I’m not highly concerned that the Court of Criminal Appeals will reverse. This is a very narrow judicially conservative opinion, and unless the SPA comes up with some argument that has not yet been tried, I’m confident that the Court of Criminal Appeals will affirm.

Then the legislature may go back to the drawing board, rewriting the statute to solve the problem on which the Tyler court held it unconstitutional, but leaving the broader problem. And we’ll be back for another round. I’m not going to go tell them next time that the statute is unconstitutional, though. Like teaching a pig to sing.

That was last week. This morning I got an opinion from the First Court of Appeals granting my client habeas relief from a contempt sentence handed down by a Justice of the Peace. The JP, marginally competent on his best day, had failed to give my client written notice of the contempt allegations.

The opinion in that case was written by the judge who I clashed with here, giving me hope that despite our butting heads he will read the law I have steered him toward and call the balls and strikes right in that case as well.


3 responses to “Two Wins to Sandwich that Loss”

  1. Well done! I have taken a break from law for almost three years now, when I was last involved you were getting your thoughts in order on the revenge porn bill. You’ve provided a nice connecting thread between two parts of my life :).

    As to the butting heads judge who can still think rationally on the law, things used to get pretty heated at times when I was in court but, with two exceptions, I found the judicial officers made sure they were correct on the law if they’d gotten angry at me (which was good). The exceptions, unfortunately, were both Chiefs of their respective jurisdicitons. Perhaps unusually, the failsafe that prevented subsequent injustice was the prosecution authority at the higher level who realised what was happening and effectively dropped the shonky cases. Weird.

    Keep blogging Mark, I still enjoy what you do!

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