Saturday, August 04, 2007

Civil restraining order in CA against web author seems unprecedented

A recent story in the Los Angeles Times about a civil restraining order issued against a former website operator raises new serious concerns about capricious legal intervention in speech found objectionable by others. The restraining order, it is said, essentially places the person under civil “house arrest” if he remains in California. Here is my more detailed account of the story.

The situation concerns Jack McClellan, who reportedly ran websites which he described his heterosexual fantasies regarding under age persons. I have never seen the site, nor do I particularly want to, but multiple credible media reports do indicate that they were explicit. Since they were not commercial, they could not have been pursued under COPA even if COPA had been upheld. What is more legally objectionable is that the person photographed underage girls without their consent and posted the pictures on the web. The persons were clothed, but is certainly legally wrong to post a picture of an identifiable minor without parental consent. (Or is it? Some stories report that any photo of a person taken in a public place may be posted; but this, intuitively, seems to beg questions about stalking, causing someone to be targeted, false light, intrusion into seclusion, and the like; but these are probably civil torts, not crimes.)

But this does again raise the question of “implicit content.” Since minors congregate in so many public places, his listing of them would not seem to convey meaningful new information; his online conduct simply seems emotionally provocative. People refer to their “tastes” all of the time online. Many times one can infer a lot about someone by what they say even if their comments are not sexually explicit. For example, most adults mentally find younger members (of the same or opposite sex, depending on sexual orientation) much more attractive than old members. That is just common knowledge and a statement to that effect doesn’t convey any specific information. "Age of consent" laws are necessary but there is nothing wrong with saying that they should be changed through normal legislative processes. These laws do draw an arbitrary line in the sand; people look physically grown before they are socially and mentally (according to brain research, it seems) ready for full adult responsibilities that go with full consent. General or specific statements about people may become more provocative, for example, if they deal with secondary sexual characteristics, body build, part-objects, body image issues, etc. Parents are worried when they find statements like this made by adults who may be around their children (teachers, for example), that this is predictive of what may happen.

All of this happens in a free-wheeling culture where people express themselves, sometimes in ways that others find self-effacing or even self-defaming, in order to rebel against older social standards and norms of social propriety (for example, the idea of what makes a good competitive male "role model"). As noted, this has recently become a concern to employers since the explosion of social networking sites.

I hope that this situation in LA is just an aberration, as indeed the individual in question dared others to stop him, as he was determined to test the limits of the First Amendment just to toy with others in feline fashion. From all accounts, his behavior was outrageous by most standards of civility or "community standards" and his postings would have violated the AUP’s or TOS’s of most reputable ISP’s. Still, for a judge to issue a restraining order like this sets a dangerous example inviting excessive concerns over nebulous interpretations of "implicit content" by others ("what will the neighbors think?"), which has been considered in other states, like the “civil” s.o. registry in Ohio. Perhaps prosecutors can find more objective grounds to go after him in terms of laws dealing with obscenity, stalking, or making threats or solicitations (with many examples of enforcement during the past ten years in many states), for which there is more reliable judicial experience in respecting freedom of speech. In the world of instant self-publishing and discovery by others, the "meaning" of content is sometimes as much in the eye of the beholder as in the words of the speaker.

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