Are This Man’s Rights Being Violated?
He has no criminal record. He likes going to public places to take pictures of young girls, which he then would post to his website, which he called “the premier site of the girl-love revolution.” Segl.info is down, but on that site Jack McClellan would rate locations like swimming pools and restaurants based on how likely they were to feature girls between the ages of 3 and 11.
McClellan, who is approximately 46 years old, has never been charged with or convicted of a sex-related crime, and denies ever having sex with a minor. He once told Fox News that “if it was legal and if it was a completely consensual thing, I could see myself taking it all the way to a sexual” level. But generally people can’t be jailed for what they might do, if given the right opportunity and if the law were different.
Parents in Santa Clarita, CA began to complain to authorities that their daughters would stay away from events for fear of being photographed. They sought an injunction preventing McClellan from posting pictures of minors on his web site.
A trial judge granted a permanent injunction without hearing testimony from witnesses. It said McClellan must stay more than 10 yards away from any place where children congregate. It also prevented him from, in the words of one court, “recording or publishing any image of any minor child without the parent or guardian’s written consent.” The order applies anywhere in California.
That language is quite broad, and McClellan argued that it violated his free speech rights under the First Amendment and the California Constitution. He would be barred, for instance, from publishing an archived public domain image of a teenage girl who might now be elderly or deceased. More to the point, perhaps, there is no widely recognized icky-pedophile exception to the First Amendment.
Eugene Volokh, who teaches First Amendment law at UCLA, says you can’t go after someone because of something they say: “You can’t restrict people’s movement, and their ability to take photographs in public places (even of children, something that is routinely done by the media and others and that is presumptively protected by the First Amendment), simply because of their ideology and expressed sexual desire, even when one understandably worries that at some point this ideology plus desire will turn into actual molestation. The premise of our legal system is that restraints… can only be instituted after some showing of concrete evidence that someone has committed or is planning to commit a crime.”
But a California Court of Appeals disagrees, affirming a restraining order against McClellan and a permanent injunction. saying they “protected the rights of children.” McClellan is prohibited from being within 10 yards of any place where children congregate. He cannot publish an image of any minor without the written consent of the parent.Click here for reuse options!
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