We lost in the trial court, so we got to go first in the Waco Court of Appeals:

[pdf-embedder url=”https://blog.bennettandbennett.com/wp-content/uploads/2018/01/Ellis-10th-Court-Brief-Final.pdf” title=”Ellis 10th Court Brief Final”]

The State filed a nothing brief:

[pdf-embedder url=”https://blog.bennettandbennett.com/wp-content/uploads/2018/01/Ellis-States-Brief.pdf” title=”Ellis State’s Brief”]

Mr. Ellis replied:

[pdf-embedder url=”https://blog.bennettandbennett.com/wp-content/uploads/2018/01/Ellis-Reply-Brief.pdf” title=”Ellis Reply Brief”]

At argument (unfortunately not recorded) the State made some arguments that it hadn’t made in its brief.

The court asked for amicus briefs from the State’s Prosecuting Attorney (who represents the State in the Court of Criminal Appeals, but not in the intermediate courts of appeals) and the Texas Attorney General (who, contrary to mythos, has no general criminal jurisdiction).

The State filed a postsubmission brief, arguing for recognition of a new category of historically unprotected speech:

[pdf-embedder url=”https://blog.bennettandbennett.com/wp-content/uploads/2018/01/Ellis-Richard-State-postsub-brief.pdf” title=”Ellis, Richard State postsub brief”]

Mr. Ellis asked for, and received, permission not to file his postsubmission brief until amicus briefs had been filed. Which was good, because the State’s Prosecuting Attorney filed an amicus brief, arguing against the recognition of a new category of historically unprotected speech and instead relying on “secondary-effects doctrine,” which the Supreme Court has never applied outside the context of sexually-oriented-business regulation, and the “commercial-speech doctrine,” which the Supreme Court has never applied outside the context of commercial speech:

[pdf-embedder url=”https://blog.bennettandbennett.com/wp-content/uploads/2018/01/Ellis-amicus-jrm.pdf” title=”Ellis amicus jrm”]

The Texas Criminal Defense Lawyers Association filed an amicus brief as well:

[pdf-embedder url=”https://blog.bennettandbennett.com/wp-content/uploads/2018/01/Ex-parte-Ellis-TCDLA-Amicus-Brief.pdf” title=”Ex parte Ellis TCDLA Amicus Brief”]

At this point the State had yet to acknowledge Reed v. Town of Gilbert, Arizona. The SPA and the DA did not agree (and in fact contradicted each other). Mr. Ellis pointed these, and some other things, out in his reply to the State’s postsubmission brief and the State’s Prosecuting Attorney’s amicus brief:

[pdf-embedder url=”https://blog.bennettandbennett.com/wp-content/uploads/2018/01/Ellis-Postsubmission-Brief-Final.pdf” title=”Ellis Postsubmission Brief Final”]

The State’s Prosecuting Attorney filed a supplemental amicus brief, trying to confuse Reed‘s clear rule and doubling down on its “secondary effects” theory:

[pdf-embedder url=”https://blog.bennettandbennett.com/wp-content/uploads/2018/01/Ellis-amicus-supp-jrm.pdf” title=”Ellis amicus supp jrm”]

Mr. Ellis filed a reply to that brief, offering to meet the State’s Prosecuting Attorney on the field for single combat reargue the case in light of the new arguments made by the State:

[pdf-embedder url=”https://blog.bennettandbennett.com/wp-content/uploads/2018/01/Ellis-reply-to-SPA-Supplemental.pdf” title=”Ellis reply to SPA Supplemental”]

And that’s where the Ellis case, which might be Texas’s first revenge-porn-unconstitutionality case to be decided in a court of appeals, stands today.