Mark Bennett gave himself 48 hours to mope, which was 24 more than I would have given him, but he had good reason. The Texas Court of Criminal Appeals reversed the ruling of the 12th District Court of Appeals, holding the state’s “revenge porn” law unconstitutional. It’s hard enough to get a court to hold a statute unconstitutional. It’s brutal to see that reversed.

But the hardest part is to have it reversed by a court that ignores the rule in favor of the want.

Whether the State or the defense is right depends on whether the United States Supreme Court really meant it when it said, in 2010’s Stevens,

From 1791 to the present … the First Amendment has permitted restrictions upon the content of speech in a few limited areas, and has never included a freedom to disregard these traditional limitations.

Or whether the Court meant, when it said in 2012’s Alvarez,

[C]ontent-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional categories of expression long familiar to the bar.

These “limited areas” or “historic and traditional categories” do not include the “intolerable invasions of privacy” that the Court of Criminal Appeals in Jones identified as unprotected speech.

In reversing Jones, the CCA held that the infringement of speech involved was constitutional because the government had a compelling interest in prohibiting an intolerable invasion of privacy.

We agree with the State that the privacy interest in the statute is a compelling government interest. First, privacy in general has been recognized and protected by our common law, statutory law, and Constitution.76 And particularly, the interest in sexual privacy is substantial. Sexual behavior is “the most private human conduct[.]”  Violations of sexual privacy are intrinsically harmful because sex is inherently private. The consequences of violations of sexual privacy can be serious and include harassment, job loss, and suicide. Victims of revenge porn cannot counterspeak their way out of a violation of their most private affairs and bodily autonomy nor the serious harms that may accompany that violation. The Legislature recognized the severity of these harms and passed this law to protect against them.

Second, disclosing visual material when the depicted person reasonably expected it would remain private is an intolerable invasion of privacy, especially when the visual material shows the depicted person’s intimate parts or sexual conduct.

It’s not that the court’s rationale is necessarily wrong, but it’s irrelevant. If First Amendment  law is as the Supreme Court said it is in Stevens and Alvarez, it doesn’t provide that no state law shall be made abridging the freedom of speech unless a state court agrees it’s intolerable. But then there are cases like Williams-Yulee v. Florida Bar, involving solicitation of donations by a candidate for judicial office, where the Supreme Court upheld the prohibition even though it failed to fall into an unprotected category of speech. Here, the CCA found its hook in some errant dicta tossed into the “Fuck the Draft” case.

In Jones we also once again saw the Court of Criminal Appeals’ jailhouse-lawyer hijacking of this sentence from the Supreme Court’s 1971 Cohen v. California:

The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is … dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.

In the hands of the Court of Criminal Appeals, that “substantial privacy interests are being invaded in an essentially intolerable manner” has transmogrified from dicta in a case that forbade California from punishing someone for wearing a vest saying “Fuck the Draft,” into justification for allowing the government to shut off discourse to protect its subjects’ feelings—justification, by the way, that the Supreme Court has, in the fifty years since Cohen, not itself used.

Bennett divides this analysis into the Categorical Rule and what I will call the Rule of Laxity.

There is a lax rule—the Williams Yulee (Supreme Court plurality, not majority, remember) Jones  (Court of Criminal Appeals per curiam unpublished opinion) ad hoc rule—and there is a strict rule—the Stevens (8–1, written by Roberts) categorical rule.

The categorical rule (which I will continue holding as correct unless the Supreme Court itself says otherwise) would bar the Texas Legislature from criminalizing revenge porn. But it would also bar the Texas Legislature from criminalizing any other speech that it decides is within the State’s interest to bar.

If the former, the Rule of Laxity, is to be the new rule, what does it mean?

Under the lax ad hoc rule, all it takes for your speech to be forbidden is for the Texas Legislature and five of these judges to agree that the State’s interest in forbidding your speech is compelling:

Which five would you trust with your freedom of speech? Okay, four. One?

What speech is unprotected? They’ll know it when they see it. Which isn’t much of a rule at all, but one that warms the heart-cockles of those who truly believe they will make a better world by eliminating all speech they find offensive.

People on both sides of the issue can readily provide surveys and studies showing the grievous harm done to innocent children by the speech that they would like to forbid. That the Court of Criminal Appeals would reject this theory of compelling state interest (as they have bought it in Jones) is by no means assured.

Persuade a court that the harm is sufficiently harmful, and the evil intended to be prohibited by a content-based restriction on speech may well be very harmful, and the court will find a compelling state interest in criminalizing that speech.

For those seeking to create new openings to criminalize speech they deem harmful, the CCA’s embrace of the Rule of Laxity empowers their cause, and while the unpublished and non-precedential decision deals only with revenge porn, the same argument that a compelling state interest even without a categorical exception suggests that other “evils,” like hate speech, are open to attack.

A petition for cert will be filed with the Supreme Court, but chances of it being granted are not good. This isn’t to say that the Supreme Court has abandoned its categorical approach, but that the Republic of Texas may have. Whether it will the next time is anybody’s guess. Bennett’s 48 hours of moping are over, and it’s time to get back to work.