The Difficult Irony of Free Speech
In editorializing about free speech before the 2003 landmark Supreme Court decision in Virginia v. Black, George Washington University Law professor Jonathan Turley pointed out the trickiness of our beloved First Amendment right to free speech:
I certainly agree that burning crosses or flags is abhorrent activity. Just as I might agree that the vile language coming from a neo-Nazi pamphlet, a KKK speech, or a gay-bashing blog is some of the most despicable kind of speech I can imagine. And yet, as professor Turley pointed out, the 1st Amendment doesn't give the majority the right to ban speech simply because we don't like it. Oliver Wendell Holmes set the bar when he wrote in Schenk v. U.S. (1919) that free speech should only be curtailed when it poses a "clear and present danger". In all the above examples, the clarity of the danger to any particular party that would arise from the speech is yet to be proven.
And that is why I hope that citizens and politicians will think carefully and deliberately before reacting to the so-called Pedophile Blogger, Jack McClellan. McClellan has hosted a blog in which he describes his fantasies about young girls, often clearly saying how he finds them far more alluring than women. He's even gone so far as to take pictures of children playing in public places and post them to his blog. This has all made headlines and has been fodder for radio call-in shows and sensational exposes recently after a parent group sought and won a temporary restraining order against Mr. McClellan requiring him to stay 10 yards away from "any child in California". (McClellan has violated the order and been arrested.)
McClellan has repeatedly said, both in his blog and in interviews with members of the media that he has never touched a child inappropriately or acted on his fantasies in any way. He has never been arrested or convicted of a sex crime. Yet the parents in his Santa Clarita neighborhood found him intimidating enough to petition a judge for a restraining order simply based on what he had posted to his blog. That the judge granted a restraining order which essentially limits McClellan to house arrest (is it possible to move freely anywhere in California and not come within 30 feet of anyone under 18?) without proof that he had ever broken a law is deeply troubling.
Certainly, McClellan's speech, like cross-burning, has little social value. Yet however repugnant the content of his speech, we must understand that until it poses a real and tangible danger to another citizen, neither the letter or principle of law has been broken. The right to speak freely is absolutely essential in a democratic society and it should only be limited in the rarest of instances. Too often we forget that while our speech may be popular with the majority today, tomorrow it may be threatened. The very right to post in "the blogosphere" is at stake when someone is persecuted simply for unpopular speech.
As a father of daughters, I want people who act on their pedophile urges to be arrested, prosecuted, and in jail. And I understand it is my responsibility to educate my children about predatory adults and how to be safe. Ironically, that pedophile bloggers, neo-nazis, and gay-bashers are allowed to speak reminds me of the urgency of my task as a parent.
I would support a statute that bans specific speech about how to assault children. I hope the parents who sought and won the order against McClellan work with the state legislature to craft a law that preserves the integrity of free speech.
There is an excellent discussion about this issue from the KCRW program "Which Way L.A.?" here: http://www.kcrw.com/news/programs/ww/ww070815pedophiles_parents_a
Please do comment if you'd like.
"It is one of the great ironies that our most valued constitutional right often depends on the protection of our least valued speech."In Black, the court was forced to grapple with the difficulty of cross-burning and whether the state of Virginia had a right to ban it on grounds that this kind of symbolic speech has at its heart the "intent to intimidate", ostensibly because cross-burning had been used for decades by the KKK and other hate groups to threaten ethnic and religious minorities. Black (KKK Grand Wizard of Johnstown, Pa.) had been convicted for burning a 30-foot cross on the property of a willing owner in Virginia. He appealed to the Virginia supreme court on constitutional grounds and won. On April 7, 2003 the U.S. Supreme Court upheld the Virginia court's finding that the state law "chilled free speech". Writing for the majority, Justice Sandra Day O'Connor concluded that although it would certainly be permissible for Virginia to ban cross-burning that is clearly intended to intimidate, a law widely banning the practice regardless of the intent is a violation of the 1st Amendment right to free speech.
I certainly agree that burning crosses or flags is abhorrent activity. Just as I might agree that the vile language coming from a neo-Nazi pamphlet, a KKK speech, or a gay-bashing blog is some of the most despicable kind of speech I can imagine. And yet, as professor Turley pointed out, the 1st Amendment doesn't give the majority the right to ban speech simply because we don't like it. Oliver Wendell Holmes set the bar when he wrote in Schenk v. U.S. (1919) that free speech should only be curtailed when it poses a "clear and present danger". In all the above examples, the clarity of the danger to any particular party that would arise from the speech is yet to be proven.
And that is why I hope that citizens and politicians will think carefully and deliberately before reacting to the so-called Pedophile Blogger, Jack McClellan. McClellan has hosted a blog in which he describes his fantasies about young girls, often clearly saying how he finds them far more alluring than women. He's even gone so far as to take pictures of children playing in public places and post them to his blog. This has all made headlines and has been fodder for radio call-in shows and sensational exposes recently after a parent group sought and won a temporary restraining order against Mr. McClellan requiring him to stay 10 yards away from "any child in California". (McClellan has violated the order and been arrested.)
McClellan has repeatedly said, both in his blog and in interviews with members of the media that he has never touched a child inappropriately or acted on his fantasies in any way. He has never been arrested or convicted of a sex crime. Yet the parents in his Santa Clarita neighborhood found him intimidating enough to petition a judge for a restraining order simply based on what he had posted to his blog. That the judge granted a restraining order which essentially limits McClellan to house arrest (is it possible to move freely anywhere in California and not come within 30 feet of anyone under 18?) without proof that he had ever broken a law is deeply troubling.
Certainly, McClellan's speech, like cross-burning, has little social value. Yet however repugnant the content of his speech, we must understand that until it poses a real and tangible danger to another citizen, neither the letter or principle of law has been broken. The right to speak freely is absolutely essential in a democratic society and it should only be limited in the rarest of instances. Too often we forget that while our speech may be popular with the majority today, tomorrow it may be threatened. The very right to post in "the blogosphere" is at stake when someone is persecuted simply for unpopular speech.
As a father of daughters, I want people who act on their pedophile urges to be arrested, prosecuted, and in jail. And I understand it is my responsibility to educate my children about predatory adults and how to be safe. Ironically, that pedophile bloggers, neo-nazis, and gay-bashers are allowed to speak reminds me of the urgency of my task as a parent.
I would support a statute that bans specific speech about how to assault children. I hope the parents who sought and won the order against McClellan work with the state legislature to craft a law that preserves the integrity of free speech.
There is an excellent discussion about this issue from the KCRW program "Which Way L.A.?" here: http://www.kcrw.com/news/programs/ww/ww070815pedophiles_parents_a
Please do comment if you'd like.
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