No CR. Mr. Ellis replies to the State Prosecuting Attorney s Supplemental Post-

Transcription

1 No CR Ex parte In the Tenth Court of Appeals Richard Allen Montey Ellis Appellant s Reply to SPA s Supplemental Post-Submission Amicus Brief Waco, Texas To the Honorable Court of Appeals: Mr. Ellis replies to the State Prosecuting Attorney s Supplemental Post- Submission Amicus Brief. Table of Contents Table of Contents... 1 Index of Authorities... 1 The SPA misreads Reed v. Town of Gilbert, Ariz The State Prosecuting Attorney puts all its eggs in the secondary-effects-doctrine basket Something of value is a straw man Additional Argument... 5 Certificate of Service... 5 Certificate of Compliance... 6 Index of Authorities SUPREME COURT CASES Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972)... 2 Reed v. Town of Gilbert, Ariz., 135 S.Ct (2015)... 2 Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979)... 3 United States v. Alvarez, 467 U.S. 709 (2012) United States v. Stevens, 559 U.S. 460 (2010)... 5

2 OTHER CASES Free Speech Coal., Inc. v. Attorney Gen. United States, 825 F.3d 149, 161 (3d Cir. 2016)... 3 STATUTES Tex. Penal Code The SPA misreads Reed v. Town of Gilbert, Ariz.. Reed says nothing about restricting communication of a message or idea for its own sake. SPA s Supplemental Brief 3. The words target and communicative frame Reed s subsequent statements of law is the SPA s word-salad attempt to narrow and complicate Reed s simple broad rule. SPA s Supplemental Brief 1 2. The rule predates Reed: The First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (emphasis added). Section 21.16(b) singles out specific subject matter that is, sexual content for differential treatment, even if it does not target viewpoints within that subject matter. Reed v. Town of Gilbert, Ariz., 135 S.Ct. 2218, 2230 (2015). This makes it not only a content-based restriction, but an obvious one. Id. at

3 The State Prosecuting Attorney puts all its eggs in the secondary-effects-doctrine basket. If this Court were to apply intermediate scrutiny based on secondary-effects doctrine it would be doing something that the Supreme Court has had opportunities to do, that the Supreme Court has been invited to do, and that the Supreme Court has never done: applying that doctrine outside the context of sexually-oriented business regulation. Nothing the Supreme Court has ever written supports applying the secondary-effects doctrine outside the context of sexually oriented businesses. See Free Speech Coal., Inc. v. Attorney Gen. United States, 825 F.3d 149, 161 (3d Cir. 2016). Even if secondary-effects doctrine were an option, the SPA also can provide no authority for the proposition that speech s effect on its subject is a secondary, rather than a primary or direct effect. To the contrary, the Court in Smith v. Daily Mail Pub. Co. applied strict scrutiny not the intermediate scrutiny of secondary-effects doctrine to a speech restriction that was justified by the privacy of the speech s subject. Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979). 3

4 Something of value is a straw man. The SPA would have this Court apply lesser scrutiny because revenge porn does not deserve[] the protection of strict scrutiny. SPA s Supplemental Brief 6. Revenge porn might be detestable speech of very low value or it might not be. Section 21.16(b) does not require either that the speaker intend to harm the subject, or that the speaker identify the subject, so the speech might be a nude image of definite artistic value when posted, only falling under section 21.16(b) when someone else attaches the subject s identity to it. Tex. Penal Code 21.16(b)(4)(B). Even if section 21.16(b) required that the defendant have revealed the identity of the subject with intent to harm him or her, the speech has social value when, for example, it involves sexual misconduct implicating the trustworthiness of an elected official, or when a wronged wife discovers visuals of her husband s cheating and shares them with his paramour s wronged husband. Regardless of the value of speech restricted by section 21.16(b), [t]he Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the 4

5 speech we embrace. United States v. Alvarez, 467 U.S. 709, 729 (2012). The First Amendment s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. United States v. Stevens, 559 U.S. 460, 470 (2010). This Court ought to reject the SPA s invitation to perform such an ad hoc balancing of the social costs and benefits of revenge porn. Additional Argument Given the stakes, and the fact that the SPA and the DA have produced new arguments that were not discussed at oral argument, Mr. Ellis would be pleased to appear before this Court for additional oral argument. Certificate of Service A copy of this Reply Brief has been served upon the State of Texas by electronic filing. 5

6 Certificate of Compliance According to Microsoft Word s word count, this brief contains 410 words, not including the: caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix. Respectfully submitted, Mark W. Bennett TBN Bennett & Bennett 917 Franklin Street, Fourth Floor Houston, Texas mb@ivi3.com 6