Jack McClellan has been arrested, and his case is a striking example of how we can so screw up the law. He's the spooky dirtbag who has operated a Web site that told pedophiles where to find young kids, how to stalk them, how to avoid detection. But that's not what he was charged with. After gaining notoriety in Washington for his Web site, he relocated to California, where a judge issued a ridiculous restraining order against him: Never be within 30 feet of a child in this state. That's what he was nabbed for.
That would be an impossible order to comply with in any case, and it's highly doubtful it would stand up to constitutional scrutiny. McClellan says he is a pedophile, more interested in little girls than women, but he's never been charged with anything nor, as far as anyone knows, has he actually acted on his desires:
But legal experts said the breadth and nature of Sandvig's order would likely not hold up to a constitutional challenge under the 1st Amendment.
Laurie Levinson, a Loyola Law School professor, said you cannot lock up someone just because you believe sooner or later they will commit a crime.
"He is obviously not a good person," Levinson said. "Preventive detention, however, is not part of the law."
Eugene Volokh, a UCLA law professor, agreed that the injunction against McClellan wasn't "going to stand up as a means to keep him away from children."
The 1st Amendment doesn't allow me to maliciously yell "Fire!" in a crowded theater. Other people's safety trumps my free-speech rights. But I can stand on a street corner all day long and say I am going to rob the bank in front of me without being arrested. McClellan's rantings are more like the latter than the former. He is being arrested for what he thinks and who he is, not for anything he has actually done.
But on his Web site, he was much closer to the "yelling fire" analogy. He wasn't just confessing his fantasies; he was helping others act out those fantasies. If one of his fellow dirtbags used the information to molest a child, there is as much culpability there as for someone whose theater shout causes a trampling death. But no one went after him for that, because it would have somehow violated his free-speech rights, which is something the authors of the 1st Amendment never could have intended.
That amendment was meant to protect political speech. We have an absolute need in a free republic to have the vigorous, unfettered debate essential for an informed vote. But that right has been stretched beyond recognition by the courts. In 1973, The Supreme Court said speech was protected if it had any literary, political, scientific or artistic merit. Stick in some vague, incomprehensible and fleeting reference to Shakespeare, and even the vilest child pornography could be protected. In 2002, the court used such reasoning to protect virtual child pornography -- doesn't matter how disgusting or dangerous it is as long as it doesn't depict real children.