Wearing his official Houston oral argument cowboy boots, Mark Bennett stood at the podium on the sixth floor of the Georgia Supreme Court to argue that a law criminalizing dirty talk to kids was unconstitutional. He was ready to fight.
His argument was legally beyond reproach, all speech that does not fall within a category established by the Supreme Court of the United States of unprotected speech is free speech. If it’s free speech, it cannot be criminal to utter it.
But the Georgia law had great emotional appeal. Talking dirty to kids on the internet is hardly something most of us would find acceptable. Certainly not valuable. What about the children? What about the harm done to them? Was the Georgia legislature not empowered, not required, to protect the children from predators who would seek sexual gratification from talking dirty to kids?
This is where the law is at its best and worst. This is where reason and emotion clash. While judges may be smart, they are also human. Nobody can turn a blind eye to some of the awful things that happen online. Nobody feels good about the ugliness that some people do. And indeed, Bennett’s adversary, Jay Sekulow, went for the feelz.
The argument was, at times, funny and painful. The one thing an advocate fears most is silence from a bench. We anticipate questions, a discussion, because we’ve already made our argument in as finely honed form as possible in the brief. To stand there and repeat ourselves is brutal. We’re there for the questions, for the doubts to overcome, for the challenge. When you rise to argue, you expect a minute or two before being bombarded with questions.
That didn’t happen. There were a few. Then there were none. Letting the silence fill the room, letting the court absorb what had already been said, Bennett awaited a question before deciding that it was time to sit down. It came, and then he concluded.
What was critical in the few questions posed was that they reflected a deep understanding of the point he was making. The questions came from Justice David Nahmias, who demonstrated a mastery of the core First Amendment issue as well as a clear textualist understanding of the poorly written law.
The prosecution’s effort to fudge the language of the law, to apply the intent requirement to whatever clause it wanted, was its second strongest argument to save the law from failing to pass constitutional muster. The first was the appeal to emotion, the “what about the children” argument. By arguing that the law was narrowly drafted by dint of the intent requirement, that the speech involved had something to do with sexual gratification, they hoped it would allow the law to slide through.
Justice Nahmias, however, made clear that he understood the requirements of the English language, that words had meaning, that sentences were constructed in such a way as to have an interrelationship between clauses. When a law was written poorly, such that the intent requirement didn’t apply to the speaker, but to the content of the speech, the court couldn’t pretend otherwise. It’s the legislature’s duty to write a constitutional law.
Argument was not, however, without its humorous moments as well. While Bennett was not of the view that the unconstitutionality of the law made its more unseemly utterances acceptable, he argued that the concern for the harm of the children, the emotional appeal, was overblown.
The idea that teens are so sheltered from sexuality that any word, any discussion, would destroy their pristine and fragile world, flies in the face of the reality that all of us experienced in our youth. It’s not that we invite 18-year-olds to engage in racy talk with 15-year-olds, but the current notion that anything less than an adult-approved safe space will wreak havoc with their lives defies human experience.
It would be foolish to suggest that any outcome is clear after oral argument. No one ever knows what a court will do, and that goes for this case as well as any other. But Bennett got lucky, as was made clear by the questions posted by Justice Nahmias. The judge understood the argument, saw clearly beyond the thick layer of emotion, and completely grasped the basis upon which Bennett asked the Court to hold the law unconstitutional.
If the appellant doesn’t win, it won’t be because Justice Nahmias didn’t get the point. If nothing else, it’s critical for an advocate making a smart argument to have smart judges who understand it. Bennett had that with Judge Nahmias. It’s now in the Georgia Supreme Court’s hands.