Wednesday, August 01, 2007

"Legal" website images stir public anger in WA and CA

The news media, within the past week, has erupted with a number of stories about someone who is trying to test the legal limits of web speech and daring the authorities as well as vigilante justice to do anything about it.

A man has set up websites in which he shows pictures of children, clothed, and suggests where others can to see and scope them (in public areas) in order to enjoy mental fantasies about intimacy with minors. Apparently he does disclose some of his "fantasies" on the sites, and maintains that he has never carried out the desires. Is this an implied "threat" or "enticement" in the eyes of the law? It seems so in the eyes of the public. Why else would someone want to post such a thing? He seems to be daring law enforcement and parents to "do something" "because I can" -- a line I've heard in the movies.

The man was driven out of Seattle, by threats that may have included his family, and is reported to be living in a car or in various temporary places in LA. The website was shut down by his ISP but reportedly he found an offshore provider.

This does sound like a mind game. In a way, “information” about where to “see” minors is pretty meaningless. Any shopping mall, and park, and anything visited by the public, especially in warmer weather. However, when someone has images of specific children (without the consent of the parents of the children, which no sane parent would give) and posts them, admittedly specific children are being targeted. This sounds like crossing the line into violating enticement statutes in many states, maybe even federally.

Generally, one cannot use the image of another person for personal gain without permission. The best known application of this idea is the right of publicity, that applies to celebrities, but it would seem to “instantiate itself” if an ordinary person is made a public target for other crime.

Even so, law enforcement in Califonia insists there is little that can be done, although a specific parent whose child appears on a site could file a complaint. UCLA law professor Eugene Volokh calls the case "interesting" and Volokh has in the past written articles on the ambiguities of law applied to the Internet.

The main story was by Jennifer Steinhauer in The New York Times, link here (will require registration). The individual is Jack McClellan, 45, and one must caution search engine users that this is a common name and a search could pull up the wrong person.

ABC also carried the story on “Good Morning America” here Some of the ABC UGC message boards complained about the fact that some people like the subject have never been parents, another tried to make fun of the matter by writing a caricature of the site.

The tone of this CBS story from LA June 14, 2007 is certainly that of angry emotional panic, like in the film “Little Children.”

There is a lot of other angry reaction out there, of varied credibility. Here is a commentary from a blogger in Ohio. Here is another "goddess blog". One company Go Ronnie announces a child safety club.

One individual boasts that he registers domains in the names of self-proclaimed pedophiles in order to attack them. All of this vigilante action in the name of individuals who have not been convicted, let alone prosecuted or arrested, sounds legally risky; if anything is factually untrue, libel suits can result. Furthermore it would sound like bad faith according to ICANN rules to register a domain in someone else’s name in order to disparage the person. Perhaps a company or a person (not me!) would set up a "s.o. suspect" registry based on ownership of sites like this and try to sell it. If so, such a registry would have to be awfully careful about "the truth" (or could it hide behind "the Opinion Rule"?) We could wind up with a "privatized" vigilante witch-hunt mentality that makes the military's "don't ask don't tell" for gays seem tame in comparison.

It's important that many people see the legal and constitutionally mandated legal due process requirements an impediment to the safety of children. At least one state, Ohio, allows the state attorney general to force certain persons to register as sex offenders without prosecution in limited circumstances. It's possible that civil registration (without conviction) could eventually become a factor in keeping certain persons from using social networking sites or Internet accounts at all.

California and other states could consider passing narrowly tailored laws posting identifiable pictures of minors (even when fully clothed) without parental permission in conjunction with sexually explicit text content. All of this gets back to the murky area of "implicit content" that has a long way to evolve in Internet-related law.

It’s possible that the speaker, McClellan, thinks that he has a legitimate First Amendment motive here. Of course, he is free to advocate lowering of the legal age of consent in all states. But that doesn’t require the use of images. A deeper political message might have to do with some resentment of the “male role” as protector of women and children. That sounds closer to the mark, as he has managed to incite every possible form of mobspeak, even on the Internet. But it could explain his motives. He may well actually have no expectation or "intention" of carrying his fantasies out. What remains, thought, is the idea of "rebuttable presumption" known from the military gay ban and "don't ask don't tell" legal paradigm; sometimes speech, at least if gratuitous, indicates a propensity for future action, and you have to expect the parents to be very concerned.

There have been remarks that there is a federal law prohibiting posting certain weapons-related information on the Internet. I can't find such a specific statute (a "Hit Man law") myself although Electronic Frontier Foundation has notes about a lot of legislation proposed by CA Senator Feinstein in the 1990s. Here is a "Legal Theory Blog" with a reference to "crime-facilitating speech." Another relevant concept could be federal coercion and enticement laws regarding minors (USC 2422). Visitors may be able to comment on this question.

Update: Aug. 4, 2007

A story by Carla Hill of the Los Angeles Times, Aug. 4, 2007, link here,
(registration required), reports that a Superior Court Judge in Los Angeles, Melvin Sandvig, issued a temporary restraining order Aug. 3 prohibiting McClellan to be present within 30 feet of any person under 18 anywhere in California, effectively placing him under "civil house arrest." Some legal authorities questioned whether this is constitutional and disregards due process, but others call it a civil harassment restraining order. McClellan was given the papers by a process server at the LA Airport as he was preparing to leave.

The restraining order was sought by attorneys Anthony Zinnati and Richard Patterson.

The order could set a dangerous precedent regarding other speech on the web, where people give hint publicly to their "tastes." Indirectly this was dealt with in the COPA trial. However, McClellan was also taking pictures of minors in public places (and posting them on the Internet) without their parents' consent, and this sounds like a much narrower form of conduct to object to.

Newsweek has a major story by Andrew Murr on Aug. 3, 2007, with a detailed discussion of the First Amendment and law enforcement perspectives, with a disturbing public opinion poll, here.

Update: Aug. 14, 2007

He was arrested near a day care center at UCLA for violating the restraining order by campus police; AP-CNN story

Update: Aug 15, 2007

A site proposing a new law to makes sites like his illegal is April's Law. It has a petition. There would be constitutional issues if it inhibited normal political arguments for lowering age of consent.

Here's another discussion at "Scared Monkeys" (rather like "Twelve Monkeys" the movie): link.

CNN has a story and video about his not-guilty plea. He appears in the video. Link.

On Thursday Aug 22 the AP and AOL (Greg Risling is the writer) reported that McClellan had been set free and that prosecutors determined that the judge had to give him a hearing to give him proper notice and follow due process of law. This sounds like a due process case here.

On Aug. 27, The New York Times, on page A13 print, ran an AP story to the effect that the individual would move to an unspecified state and that he had done the postings for self "therapy", not to announce any real intentions.

Related blog posting here.

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