The Brief of a Lifetime


Back in May the Tyler Court of Appeals held Texas’s revenge-porn statute, section 21.16(b) of the Texas Penal Code, unconstitutional. I’d shared the briefs here, and I’d written about the argument here, but I don’t see that I wrote about winning the case.

Here’s the Tyler Court’s opinion:

The State Prosecuting Attorney filed a petition for discretionary review with the Texas Court of Criminal Appeals:

The Court of Criminal Appeals granted PDR, of course, because how is it not going to when an intermediate court of appeals holds a statute unconstitutional?

Here’s the State’s brief on PDR:

And here’s our brief (I’m joined by Mishae Boren of Tyler and Lane Haygood of Odessa), which I just filed:

I’m very happy with it, which is good since we’re fighting over the future of free speech. The CCA will likely be the first big state’s high court to weigh in on revenge-porn statutes, and a soundly written opinion will influence all of the other states that have yet to visit the issue. (If you’re in another state and want to fight your nonconsensual-pornography statute, call me.)

I’m hoping the Court of Criminal Appeals will realize what’s at stake, and grant oral argument.

Either way, as you can see from our brief, Supreme Court caselaw is definitely on our side. I expect to win in the CCA; I expect the State to file a cert petition in the U.S. Supreme Court. Since the Vermont Supreme Court has upheld that state’s nonconsensual-pornography statute, there may be a conflict between states’ high courts, so there is some chance that the Supreme Court will hear the case.

There also may not be a conflict between the Vermont and Texas courts, since Texas’s nonconsensual-pornography statute is considerably broader than Vermont’s. The CCA could simply say, “this statute is not narrowly drawn, though a statute like Vermont’s might be.”

I’ll try to remember to keep y’all posted.


7 responses to “The Brief of a Lifetime”

  1. Love it! Is it your intention that we not be able to download your brief? The analysis could be useful when the state is focused on content (rather than manner) for online Harassment 42.07(a)(7) which can also be a basis for felony Stalking 42.072(a)(1).

    • BW, sorry for the late response.
      Yes, possibly.
      I’m filing a PDR on a case called Mahmoud, out of the Beaumont Court of Appeals. It’s Leax, but with the issue preserved. That is probably our last shot at 33.021. The CCA’s understanding of Supreme Court free-speech law, which Jones will, I hope, better develop may affect the outcome in Mahmoud.

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