Is Mocking A Crime? Ohio Man Sentenced to One Month In Jail For Mocking Disabled Girl

There was a justified outcry recently when a video surfaced (below) of an Ohio man William Bailey making fun of a young girl with cerebral palsy at a bus stop. It is a brief video but enough to enrage a nation. Now, Canton Municipal Judge John A. Poulos ordered the maximum sentence for Bailey, who pleaded no contest to reduced misdemeanor charges of disorderly conduct and aggravated menacing. I realize how emotionally charged this case has become, but should mocking be treated as a criminal act?

Bailey insisted that he was reacting to name-calling directed at his 9-year-old son, but most people see the video has a direct mocking of the little girl with a pronounced limp.

The Knight family has lived next door to the Baileys for two years and the families had developed serious problems. The case is reminiscent of the Petkov case.

The film below does not show what normally passes for disorderly conduct or menacing. These terms have always been uncomfortably ambiguous for civil libertarians. Here they seem to be simply the most convenient way to vent well-founded anger at Bailey. The charges were reportedly based on the video, though originally the girl’s family said that Bailey threatened to choke the mother with a chain.

If mocking a little girl can be charged as disorderly conduct and menacing, how about mocking other people for political or religious reasons? This man appears a perfect tasteless cad. However, should he be criminally charged?

Source: ABC

186 thoughts on “Is Mocking A Crime? Ohio Man Sentenced to One Month In Jail For Mocking Disabled Girl

  1. His right to mock is completely protected by the First. This is ridculous. That being said, if he were on fire next to me, I would not put him out.

  2. he has a first amendment right to his opinions. however the video clearly shows him driving off with his sons car door still open and the child not strapped in. looks like child neglect/endangerment to me.

  3. I don’t know that it should be treated as illegal but it sure is criminal. And he’s teaching the child with him to do the same. What a jerk!

  4. The child being mocked is not in the video. The video on its own shows an adult and a child walking as if they have a disability. That they are mocking must have been shown in some other way.

  5. I understand our professor’s concerns here in this about criminalizing inane, childish behavior in adults, but I would consider this. In the brief amount of time I read about this I got the impression this type of mocking behavior had occurred for some time against the little girl. The girl is a member of a protected class (at least in our state). and the harassment of a member of that protected class due to her disability could be considered a harassment offense.

    It could be articulated the defendant continued to cause emotional trauma in the girl and subject her to continual humiliation that was unwanted by both the girl and the parents as possibly expressed by words or actions.

    Moreover, a 9 year old child does not have the emotional fortitude or life experience to deal with a harassing adult the way an adult could and would be more vulnerable to emotional injury than an adult. Plus, a child is in a position of vulnerability and more easily victimized by an adult where children are socialized to obey and submit to the orders from an adult and they do not have the understanding they do not have to tolerate this behavior.

    Harassment can be articulated as being non threatening but that it is by intent and design to annoy the other person by repeated intrusions is enough to justify the PC for the arrest.

  6. According to the story JT linked to, the mocking charge carries no jail time. The jail time was from the death threat:

    Bailey, she said, “was swinging a tow chain on his porch, saying he was going to choke me until I stopped twitching. I sent my kids with my mother-in-law to leave with them. My husband called the sheriff.”

    If there is no jail time for that statute is it a crime?

    The two put together, and all that went before it, tells me the fool got off easy.

    I suggest they get an injunction then when the fool violates it he can get a longer vacation with folks who will likely taunt him an education.

  7. Some states have laws that make abuse of a disabled person a felony. I am not sure if that includes verbal abuse, or physical abuse only.

  8. the problem in this country now is that we rely too much on government. In another era of our country this man would have been pummeled by the father and uncles of the child.

    Why are disabled people a protected class? They dont need anymore protection than what is already provided by the Constitution. Additional “protection” is probably part of the reason many disabled people dont work, no one wants to hire them because of the added “protection”.

    Paternalism is such BS.

  9. I consider the mocking to be child abuse and would treat it as such criminally. Would a slap to the child’s face hurt any more than a slap such as this to her psyche?

  10. Bron – when my kid was in Afghanistan he saw two neighbors hashing out a dispute with RPGs. Just a bit more technological than pummeling each other. What if the disabled kids dad is not bigger & tougher? What if this jerk has brothers? what if he owns a gun? We have laws and courts so we are not reduced to savages where the stronger guy wins.

    The problem here as it was with that dreadful woman in MI is that these are some awful people maybe on all sides (who knows maybe he is responding poorly to insults thrown at him & his family). Guys like this seem unlikely to be deterred by the sentence. My guess is someone is going to have to move or this sort of thing will just drag on.

  11. Frankly:

    Of course you are right, but this shouldnt be something the law should be involved with. I know a kid with CP who gets around pretty good and is in pre-law at one of the better schools in our state. He can handle himself because his mother was a sledge hammer and made him stand on his own 2 feet so to speak.

    It is too bad people like that exist but the law cant legislate the elimination of churlishness.

  12. America is the most over-legislated society in the world. Almost everything is against the law. Ignorance of the law is no defense .Even if a defendant knows & understands the law, there is no guarantee that the judge will rule accordance with established law. Most Americans have no experience with the legal system. Those who have know well that judges have entirely too much discretionary power. The rules governing trial procedures are all too often completely ignored which very often make trial preparation difficult if not impossile. Long story short, those who think that going to court with the law on your side and armed with the bare naked truth will result in a fair and just outcome are sadly mistaken.

  13. @Bron: the law cant legislate the elimination of churlishness.

    As always, you agree and then ignore your agreement and just reiterate your premise, because you claim you know somebody with a disability that can handle themselves pretty good, so if any other disabled person cannot you will just blame that on them or on their mother not being a sledge hammer.

    Then followed by diminishing the crime to just “churlishness.” That is not the crime, the crime is abuse of a child that cannot protect herself, and that IS something the law can address, and something the law should address.

    It is also not paternalism, we have no desire to be this man’s father, we have a desire to protect a child from abuse, and not leave that protection up to chance, or random violence. Or the luck of having a strong relative wiling to risk death in a fight against somebody that may well be capable of using lethal force in legal self-defense if attacked.

    The threat of legal punishment reduces violence, you want to promote it.

  14. Tony – in a way I really envy bron. The world he lives in is so simple and the answers are so easy. That must be nice. The world I live in is complex and requires a lot of balancing between less than perfect solutions and dealing with shades of uncertainly and doubt.

  15. tony c:

    a good parent is an antidote to people like that man.

    So now you want to legislate parenting?

    CHURLISH, a.

    1. Rude; surly; austere; sullen; rough in temper; unfeeling; uncivil.

  16. Frankly:

    I am not sure where the doubt is in this situation, the guy is wrong to mock but the law does not need to be involved.

    The parents can reinforce the child and let the fool do what he does. He will stop after he gets tired and doesnt get a rise out of the family. Another way to handle it is to have the community shun him and his family.

    Life is simple.

  17. This is, as mespo said, child abuse and society should protect its most vulnerable members from such actions. Judge Poulos was correct in ordering the maximum sentence and for those civil libertarians who believe the First Amendment protects verbal child abusers (mere mockers, if you will), take heart … the charges were, after all, reduced.

  18. I’ll echo Pete’s – ” the video clearly shows him driving off with his sons car door still open and the child not strapped in. looks like child neglect/endangerment to me.”

    That looks like slam-dunk.
    Add to that they guy’s worse ‘crime’ of getting his kid to do the limp walk. He’s breeding a clone of his own barbarism.
    On the car business and on that, he’s clearly a developmental problem for his own kids as well as being a physical danger to them.

    “he has a first amendment right to his opinions.”
    Opinions are fine, but the how, where and when of expressing opinions may go beyond the exercising of a noble right.
    Surely Shirley, the intent of the First Amendment centres on protecting policitical speech.

    I would think that the limping shown in the video amounts to ‘disturbing the peace’ as it is clearly intended to be provocative.
    It is absolutely divorced from political speech. It’s hate behaviour.

  19. @Bron: While you have the dictionary out, look up “abusive” since that is the word that applies.

    a good parent is an antidote to people like that man.

    Perhaps so, and if the child does not have a good parent, or brave parent, or smart parent? What then? Why should a disabled child suffer at the hands of an adult bully because their parent does not know how to deal with the bully?

    So now you want to legislate parenting?

    No, I want to legislate against adults abusing children; because I believe that is the main purpose of the law, to protect the weak that cannot protect themselves. I do not believe in leaving that protection to the fates and luck of whether or not a child has a good parent or a fighting uncle, because not all do. Nature is inherently unfair in that way, and I believe that unfairness can only be corrected by humans banding together, and I believe all children (and all people) are entitled to equal protections.

    Bullies don’t get tired, they enjoy the power. Even if they did, why wouldn’t that excuse work for thieves, rapists, or serial killers? “Oh, eventually the serial killer will tire of murdering people and the problem will solve itself.”

    This adult bully is victimizing a disabled child. Your solution is to blame the victim for not being tough enough, let the victim continue to be victimized because her parents have failed her, or have some vigilantes go teach the bully a lesson with a little beating; necessarily breaking the law and violating HIS rights (not just his right to not be beaten, but his right to due process before being punished).

    All of that is avoided by letting the law do what the law is supposed to do, protect children from adults that would abuse them.

  20. Pistol whipping is a good thing for some perps. This guy needs a good one. Stick the barrel up his nose when he is beat to a pulp and pull the trigger on an empty cylinder. Leave him tied up in front of a chimp cage at the zoo and let the guys humiliate him. Take his bus travelling rights away and break his legs so that he has to hitch hike in a wheelchair. And if that aint good enough for him then….

  21. The jail time was good enough. itchinBayDog gets riled up when there is a dog abuse item on the blog and then vents on all of the other perps. The dogpack took her off the blog for a week and I will have to sit in.

  22. There’s was a time not long ago where this guy would have gotten his ass kicked and that would have been the consequences for his actions and ended this despicable action.

  23. tony c:

    “No, I want to legislate against adults abusing children;”

    good luck with that, if all of the parents and people who are guilty of abuse were arrested our jails would be full. What constitutes abuse? Spanking a child, calling them stupid, telling a daughter she looks like a tramp for wearing something, telling a boy he looks like a girl with his hair down to his shoulders?

    We now have a government that wants to tell us what we can put in our bodies, now you want a government which can tell us how to parent and how to act?

    It may feel good to put that a$$hole in jail but individual rights will suffer in the end.

  24. @Bron: This was not her PARENT, it was not even a relative; and what constitutes abuse is intentional harm. Yes, quite often spanking a child is abuse.

    …but individual rights will suffer in the end.

    What, your individual right as an adult to intentionally harm, humiliate, or degrade children? I guess I don’t give a crap if that right suffers.

  25. Oh noes! Think of the childrens!

    “Congress shall make no law [. . . .] abridging the freedom of speech” is a clear statement. Ask yourself what you are trying to protect children from in this instance. Words? The fact that the world isn’t always a nice place? The fact that the world isn’t always a fair place? It may be a noble desire, but we all know it is a futile desire as well. Kids are going to find out that the world isn’t nice or fair no matter what you do. Such an expectation is, in a word, unreasonable. It’s like the lie of Santa. They’re going to find out he isn’t real no matter what you do.

    Yeah, this guy is clearly a douche bag for picking on a kid and that goes without question, but is adding to the notion that it’s okay for the government to use its force to censor merely because someone was offended a good idea? A lot of people here seem to get their dander up about that when it applies to religion, but it’s okay in this instance because it involved mockery and a kid? The guy is an idiot for picking on a kid, but guess what? Every neighborhood I ever lived in as a kid had an ass just like this guy. You know what we kids did? We gave the mockery right back. We were all taught that respect is earned, not due, and that if an adult acted like a jackass it was perfectly okay to treat them like a jackass. The adults? Ostracized the neighbors until they learned to keep to themselves or they moved.

    Either you’re for free speech with reasonable restrictions like defamation and incitement or you’re not. This is not a false dichotomy but an actual binary choice. So the question becomes is criminalizing such speech reasonable and does it serve a legitimate purpose? Words are words. They don’t break bones, they don’t shatter organs and while they may upset, they don’t shatter the mind.

    Civil rights are rarely just taken in one fell swoop. They are eroded like stone by water, slowly, insidiously, until there is a gaping chasm where your rights used to be. Look at what has been done to the 4th Amendment over the last 11 years for a perfect example of the phenomenon. That it would be done in the name of protecting children is the case of the 1st Amendment when the only real trauma is learning that people aren’t always nice is ridiculous. If we were discussing a prevalent pattern of psychological abuse in the home or institutionalized psychological abuse, you can make the case for child abuse, but that’s not the fact pattern here. A lone douche bag isn’t the equivalent of a lone gunman or an abusive parent or other authority figure. Criminalizing his speech not only erodes our rights, it teaches the same bad lesson that PC does: that Big Brother is going to protect your feelings.

    Is that what you want?

    Because the last time I read the Constitution (last night), I didn’t see anything in there about your feelings being protected.

  26. Jesus had his share of mockers. He knew their end.That end would be the ultimate end. Jesus did not want people to face that ultimate end saying woe unto you to people who look godly not in action being godly.

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  27. @Bron: When it comes to subjective abuse, by an adult to an unrelated child, we should err on the side of the child.

    Plus not all subjective issues are borderline cases, but I do not mind leaving the borderline cases up to a jury to sort out. This was not a borderline case, even you claim the guy was an aszhole that should be shunned by society. There is no question in anybody’s mind that his intent is psychological harm and degradation of a child.

    So that IS what is at issue, whether an adult has that right with an unrelated minor, and I do not think an adult DOES have that right.

    The rights you have for adult interaction with other adults do not extend to minors. Not in sex, not in speech, not in contracts or agreements or consent. Children are not adults.

  28. @Gene: So are sexual predators on the Internet intentionally trying to ply underage children into meetings just exercising their “freedom of speech?”

    There is, and should be, less freedom of speech between adults and unrelated children (in person or otherwise) than there exists between adults alone. There is an issue of mental competence that the child does not have.

  29. No, Tony, they are pedophiles. Speaking to children is not the crime. Trying to have sex with them is the crime. That’s the mens rea behind pedophilia statutes; attempting to or actually having sex with children. That the crime itself criminalizes a certain type of speech is incidental, not primary. That is a different proposition than criminalizing speech simply because you find it offensive.

  30. It seems there should be some other way to deal with this man & his son. Public shaming? A talk with the school counselors? The parents having a meeting with the school?
    When the parents of this girl try to communicate with this man, did he threaten to choke the mother? This seems to me to be the violation of the law.
    The mocking should have been dealt with the first time it happened, although some people will never change bad behavior until they suffer some consequences. Really torn on this one….

  31. Yes, this baffles me. They are willing to punish a man for this, but the Westboro Baptist Church causes endless suffering and misery for many families and their acknowledged hate speech is protected….and thus, so are they? I guess if this asshat didn’t want to go to jail, he should have claimed that his “God” hates disabled folks or something.

    Honestly, I think our society has lost all sense of priority AND propriety.

  32. @Gene: I think it is the mental capacity of the child that matters. Whether my feelings are hurt by speech is immaterial, I am an adult without mental disability, I am not a child with a brain and emotions still in training, still neurally pre-disposed to rote trust of adults and their motives and actions.

    So to answer your question, the answer is YES, I prefer a future in which adults do not have the freedom to intentionally produce psychological harm in children, because children are more mentally vulnerable than adults.

    Sure, I agree, the Constitution does not make that exception; but I do not consider the Constitution the final word on what is right and wrong. If we passed an amendment that restricted this brand of “free speech” between adults and unrelated children, would you suddenly consider THAT the correct norm of behavior?

    Our judgment of “right and wrong” is necessarily independent of the Constitution, it must be in order for us to determine what is a good law or amendment and what is not. In MY judgment of right and wrong, this is wrong, it is cruel abuse of a child and should be punished. Also in my judgment of right and wrong, punishment should be handled by the state with rules, laws, and formality, to prevent error and ensure fairness and justice.

    Thus I reject the “society should shun him” solution, or “the parent should beat him up” solution, or “the kid will get over it” solution.

  33. tony c:

    what rights of the child have been violated? she wasnt struck, no property was taken, there is no loss of liberty, she isnt prevented by this man from pursuing her dreams. She hasnt been libeled.

    She walks like that, it is a fact of reality. That is the problem with many people, liberals among them, they want to make reality go away by using government force.

    You cannot legislate reality away, it always ends up winning in the end.

  34. @Gene: From what I have seen on “To Catch A Predator,” it is the speech that is the crime; they routinely arrest, prosecute and convict people that never spoke to a child on the Internet or in person, because they were always speaking to an adult actress or actor. They are convicted without EVER actually trying to have sex with a child.

    What has been criminalized is not incidental at all, it is any sexualized speech with a person one believes to be a child. It is not predicated on there actually being a child victim at all.

    And we do not outlaw pedophilia, which refers to the feeling of sexual attraction, what we outlaw is the speech to an under-age child, and to err on the side of protecting children, to anybody we think the speaker believes to be under-aged.

    I am fine with that, it should be outlawed speech.

  35. When the Constitution becomes a religion, I become very leery of its priests.

    Back in the day when women, blacks, and children had no rights, we had to add amendments to the document giving recognition to the changes society demanded. Needless to say many apposed said changes to the “pure” document.

    We had to pass laws to keep all those landed gents from working children to death and many opposed the loss of that cheap labor force.

    Giving a pass to adults who verbally abuse children on the basis of Constitutionally protected free speech smacks of a rigidness of form found mainly in the religiosity of true believers.

    Count me out.

  36. @Bron: You cannot legislate reality away, it always ends up winning in the end.

    Should we, therefore, not outlaw theft, perjury, rape or murder? It happens whether we outlaw it or not, Bron, that is reality.

    I do not expect legislation to make something non-existent, I expect it to reduce crime. I believe what the child suffers is the intentional infliction of emotional distress, without having developed the mental capacity to manage that distress like an adult.

    It is the same reason we have an age of consent that is well above the age of puberty; because 14 and 15 year olds may be physically capable of sexual activity but we do not believe they are mentally competent enough to give their consent. For the same reason we have exceptions for those close in age, because we do not think they are mentally competent to control themselves or refrain from impulse.

    A child, by definition, does not have a mature mind, and is deserving of more protection than an adult, and I think that includes more protection against the infliction of psychological harm.

  37. Tony,

    Your indignation does not equate to illegal. The bottom line is the Constitution is the foundation of our laws and it does not protect anyone’s feelings including your indignation, righteous or not. The Constitution may be amended, but until it is, I’m going with what this dumbass did was protected speech. It’s not against the law to be stupid.

    Also, you apparently missed the point of mens rea in what was said about anti-pedophilia laws. The crime we as a society are trying to discourage and prevent is child predation. That such a crime includes certain forms of speech is incidental to the criminalization of those behaviors and not the primary reason the speech is prohibited, but a secondary effect of defining and prosecuting the prohibited behavior. It’s the intent of the behavior that is criminal. Intending to seduce children is illegal. Just like stupid though, it’s also not against the law to be a simple douche bag.

    Take for contrast the tort of defamation. Lying itself is not against the law. Lying to cause harm to another for for material gain from spreading lies about others is the tort and that is what constrains the tort under the 1st Amendment. The defense to defamation is truth. Say I had evidence you were a pedophile and I say, “Tony is a child molester.” You can sue me for defamation, but if my proof is valid, you won’t win. If I’m lying or have reason to know the evidence is false, you’ll win. It’s the intent behind the lie that defines the tort, not the lie itself.

  38. Blouise,

    The Constitution is a living document. It can be amended. If you seek to create a protected class in children for the purposes of free speech, you are perfectly free to do so. Just be sure to note what I said about the erosion of rights. If you’re protecting children’s feelings today, who will it be tomorrow? Muslims? Christians? Jews? Hindus? People with odd names? Animal activists? Those who fear the word “wool”? Gingers? People who prefer Coke over Pepsi? Pro-choice or anti-choice? And who gets to decide what is offensive to who’s sensibilities? Who gets to decide what are valid and invalid “hurt feelings”? Do you want some pinhead like Boenher or McConnell defining what you can and can’t take offense at or say?

    Careful what you wish for.

    You just may get it.

  39. I agree with you Gene. The Freedom of Speech is messy and people’s feelings will get hurt, but it is a necessary freedom that should not be abriged. Granted this neighbor is an idiot and a bad role model for his family, but as you suggested, it is not illegal, nor should it be illegal to be a creep.

  40. Gene wrote: “It’s the intent behind the lie that defines the tort, not the lie itself.”

    The intention of Westboro Baptist Church may be to make a form of political speech.
    Their intention does not appear to be to cause distress to the families of dead soldiers. They have their message about something is society that they want fixed.
    Their actions therefore seem to get a free pass as protected speech.

    What is the intention of the guy mocking a child with a disability.?
    Is it not to cause distress to the child and her family?
    Should not the intent define the offence?

    Or…if the child is traumatised but the mocking, should a consellor just say “Oh for goodness sake, grow up!”

  41. Gene H:

    Personally, I think what this redneck did (and what he is teaching his son — if he doesn’t kill him first) is obscene in that it offends most community standards of decency. It might even be depraved since it surely is wicked. I don’t think we have First Amendment implications here. We routinely protect classes of people from all manner abuse without implicating the First Amendment and we use criminal sanctions to do it. Think crossburning.

    I also take issue with the notion that the Constitution doesn’t protect feelings. Domestic tranquility has at its root the protection of feelings. Just look at some of the comments today calling for outright violence against this fool. While I’d have to say his actions would justify it in a natural justice sense, we simply can’t legally countenance it. Feelings lead to more intense feelings and more intense feelings lead to action. On lover’s lane that might pass for natural. Everywhere else is looks like a fight, and we just can’t have a Hatfield-McCoy situation in every trailer park.

  42. OK, were the ignorant, punk-a55, low-life, obnoxious perp’s Constitutional rights violated? Probly. Do I care? NOT. HE voluntarily pled out and got 30 days. Boo hoo hoo hoo crocodile tears here. Isn’t there anything significant our Constitutional scholars can defend? Because regardless of which neighbor was right and which wrong, and anything else, the bistard shoulda rightfully had his face rearranged for his disgusting anti-Darwinian behavior. No “law” needed.

  43. Malisha 1, November 29, 2012 at 2:14 pm

    …. Isn’t there anything significant our Constitutional scholars can defend? …
    ===================================================
    We were mocking Leahy’s committee only a short while ago for a phantom act that did not happen:

    The Senate Judiciary Committee voted on Thursday to force cops to get a warrant to spy on your email. It was a first step toward beating back the “growing and unwelcome intrusion into our private life in cyberspace,” as Sen. Patrick Leahy (D-Vt.), who offered the amendment, put it.

    (Warrant Required For eMail Searches).

  44. Something that has only been address peripherally here is the issue of child abuse. As everyone knows, child abuse is a crime in every jurisdiction in the US, unless there is some backwater I don’t know about.

    There are three forms of child abuse:
    Physical abuse
    Sexual abuse
    Psychological aka Emotional abuse

    This guy’s behavior appears to fall in the third category. Abuse is abuse.

  45. mespo,

    I agree what this guy did in an ethical sense is wrong. That is without question. But unethical doesn’t always translate to illegal. We all own our own conscience. Did the child suffer any actual harm and is this punishment equitable are questions that go straight to the issue. On the issue of feelings and domestic tranquility? Those questions also apply. There are very limited torts and crimes that deal with feelings in the manner you suggest, IIED being the tort that comes to mind. The standard relies heavily upon intent to prove IIED. Same with cross burning. Don’t forget that it’s constrained as a crime as a matter of intent, not content. Domestic tranquility is more about providing just and equitable outcomes that protect the peace than trampling the rights of individuals simply out of moral outrage. You evoke family feud and I’ll point to an area that we as a society already define as an acceptable limit on free speech: fighting words. Are you trying to say this moron was trying to pick a fight with this kid? I don’t think that’s reasonable without additional proof. On what we have he was simply being an offensive jerk without a sense of propriety regarding children. Feelings are subjective and if we allow government to get into the business of protecting feelings without first narrowly defining why we are creating an exception to free speech and what benefit society stands to gain from it, we are indeed stepping on to a seriously slippery slope of the kind which usually ends up with rights going right down the drain.

  46. OS,

    To tell you something I know you know, to establish psychological and emotional abuse a pattern of such abuse must be established. We simply don’t have enough evidence to prove such a pattern here although I will stipulate that such a pattern may indeed exist, but child abuse is not what this guy was charged with. He was charged with disorderly conduct and aggravated menacing.

  47. @Gene: If you’re protecting children’s feelings today, who will it be tomorrow?

    For me, it will still be children. There is a physiological difference there to protect that will not go away in the future.

    I agree it is protected speech, I am not arguing the current law or current Constitution with you, I am arguing what should be the law. I believe in free speech, between adults, including speech that hurts the feelings or outrages other adults.

    But the Constitution was written with implicit reference to adults throughout, it does not specify anything about children; other than setting various minimum ages of eligibility for voting and offices. All existing laws governing the interaction of adults with children, and adult speech with children, are exceptions to the absolute right of free speech. What I propose should be the law is nothing different; there are forms of speech from which children should be protected due to the immaturity of their minds, emotions and cognitive ability. Presumably a condition recognized by the Founding Fathers in prohibiting them from voting.

  48. Gene:
    I know the charge he pleaded to. I am thinking the DA told him if he went to trial he would be looking at child abuse charges that might very well stick, so his lawyer told the guy to cut his losses and plead out. When put in perspective at what time he might be facing if convicted on abuse charges, a month in jail might have looked pretty good in comparison.

  49. Shoulda, coulda, woulda, Tony. In theory, I would tend to agree with you, but in practice limiting rights is something that should be done carefully and as narrowly as possible – something the Patriot Act proves every day is not as easy a task as one might think. Such a restriction in this case I think would create dangerous precedent that would allow for future degradation of the free speech right based on what is essentially a subjective standard. A kissing cousin to laws saying you can’t say the GOP or the DNC suck because it “offends their members”.

  50. OS,

    If that is the case, the DA failed his duty to protect this particular child and he should have gone for the greater charge regardless of what he could get for a plea. If the pattern evidence was there and sufficient, he should have filed on that as it would have been in the best interest of the child. Do we have the right bad guy here? It just might be the DA is at fault for a miscarriage of justice here too.

  51. Isn’t there a difference between political speech and child abuse? I think so. Political speech should be protected at all costs.

  52. Blouise:

    “Back in the day when women, blacks, and children had no rights”

    In my opinion that was a fault with society, not the Constitution.

    You dont piss all over a document which tries to provide rights for all people.

    In man’s recorded history there been very few societies which have had the freedoms we have enjoyed and fewer still which codified those freedoms. If the “priest” professes a love for liberty and individual rights and is a true believer like Thomas Jefferson, I would be accepting.

    “…I have sworn upon the altar of god eternal hostility against every form of tyranny over the mind of man.”

    Thomas Jefferson

    Sounds like religious fervor to me and rightly so. If more people understood what Jefferson was saying we would be a much better society.

  53. @Gene: I think IIED is evident from the video, I believe, based on the uniform outrage and labeling of the guy as a jerk, etc that it would be obvious to a jury he intentionally mocked her disability with the intent of causing her emotional distress. That is what makes him a jerk.

    Reading the law in my state and a few others, I see no mention that any “pattern” of behavior applies. Why do you think such a pattern must be established?

  54. Gene H:

    “Did the child suffer any actual harm and is this punishment equitable are questions that go straight to the issue.”

    **********************

    That’s an interesting question. In crossburning cases we don’t always have actual harm. I think the essence is intimidation such as would cause a person of the same or similar sensibilities to be in fear for their safety. In obscenity cases, we likewise can’t point to a particularized harm in some cases yet we criminalize the expression nonetheless because we feel the harm to society (and particularly to children in child sexual abuse cases) overrides any sense of value in the expression.

    So you raise a good point. I would like someone with a better First Amendment background to deal with this issue of remote or nonexistent harm in a First Amendment context. Any takers?

  55. Tony,

    It has to do with the definition of psychological abuse used at law. Either expressly or implicitly, every law governing that requires it be multiple instances, i.e. a pattern. For example, if a woman cites “mental cruelty” as a reason for divorce, it would be insufficient to allege “He called me a “b*tch once.” If he constantly and/or repeatedly berated and abused her verbally and she can prove it? Then the allegation would be sufficient. We don’t know there is a pattern here. As I stipulated, there may be an actual pattern here, but that would as OS stated amount to evidence sufficient to file for child abuse rather than these more nebulous and dubious lower charges.

  56. I don’t like the guy’s actions, but there’s a very apt legal saying that bad facts make bad law. The idea is that the rules can get bent to cover things we don’t like (bad facts). But, in doing that, we’ve now changed the rules that apply to all future circumstances (bad law) and that may have unconsidered negative consequences. I don’t like this guy and won’t weep for him getting in trouble legally. But, if the principle becomes words or expressions that are calculated to cause mental anguish are unprotected by the First Amendment, where does that end? Are abortion protesters subject to criminal prosecution for calling abortion doctors murderers? Are atheists subject to criminal prosecution for mocking religious beliefs? Are students who offend some racial or ethnic group with politically incorrect speech subject to suspension and discipline? There has to be a good limiting principle that wouldn’t cover speech I want to protect, otherwise it’s better to live with hurtful mocking speech like this guy’s than to give the government the power to punish speech much more broadly. I do wonder whether the fighting words exception to the First Amendment might apply to this guy’s actions and thus provide an acceptable limit.

  57. Gene H:

    “Are you trying to say this moron was trying to pick a fight with this kid?”

    *********************

    Not necessarily the child, but those responsible for her care. Someone above mentioned uncles and brothers handling it the old fashioned way. I would think keeping the peace in the face of this obvious provocation merits some consideration.

  58. Gene,
    Surefire jail time and (hopefully) a lesson learned, versus the expense and uncertainty of a trial. Juries are unpredictable.

  59. “I would like someone with a better First Amendment background to deal with this issue of remote or nonexistent harm in a First Amendment context. Any takers?”

    I would like to say this would be a perfect and appropriate time for our host to weigh in, mespo. Or at least someone with comparable experience litigating 1st Amendment issues.

  60. OS,

    True, a mitigating factor in favor of the DA if that was the case the evidence presented, but again we come to the issue of was justice and equity best served and is fear of uncertainty a valid reason for avoidance of the higher charge? If the DA could have proven child abuse, even if they lost at trial, there is the appeals process. I see this as an instance that was abusive, but without further evidence, I can’t in good conscience consider it a pattern of psychological abuse without more evidence.

  61. Gene H:

    “Did the child suffer any actual harm and is this punishment equitable are questions that go straight to the issue.”

    Does a child suffer any actual harm if a paedophile communicates with them over the Net?
    Apparently so, as people get prosecuted even when the ‘child’ is actually a law enforcement adult trapping them.

    If talking dirty to a child over the Net or in text messages is a crime, why is mocking a disabled child not also a crime?
    Is one damaging to the child’s well-being and development and the other not?

  62. Maybe the fact that he took a plea is a sort of public shaming. He himself did not want the publicity and public scorn of a trial.

  63. People have committed a crime of all crimes. That is why the body dies. The pedo is not even warring, and people want to war against them? Tell me what did God say in the beginning ? Can you tell me? Did God say have sex or arrest whoever you tjhink you can?

  64. ST,

    In the pedophilia example, the intent is the crime and that is why solicitation of minors is forbidden.

    Why mocking is not a crime is it is free speech unless a pattern of psychological abuse can be established and that is already a distinct crime as well: psychological child abuse.

    “Is one damaging to the child’s well-being and development and the other not?”

    This goes directly to the actual damages question but avoids that attempting to have sex with children is not just mallum in se but mallum prohibitum as well and for established policy reasons. What the guy did absent proof of a pattern is offensive, but it is not a criminal offense the way pedophilia and child abuse are.

  65. Jonathan Hughes:

    “Jesus shames no one.”

    **********************************
    12 And Jesus went into the temple of God, and cast out all them that sold and bought in the temple, and overthrew the tables of the moneychangers, and the seats of them that sold doves,

    13 And said unto them, It is written, My house shall be called the house of prayer; but ye have made it a den of thieves.

    ~Matt. 21

    Not a big fan of payday loans and pet shops, I notice.

  66. I generally like this blog; it’s often first to re-report interesting legal events nationwide, as well as other weird but intriguing issues.

    BUT! It would really be nice to see some improvement in the degree of care exercised with reporting and writing each post. Many posts contain serious writing errors, well beyond typos, that often make it unclear what the author is trying to report. Other posts, like this one, completely leave out or deeply understate truly important facts. For a good example of how this post should have been written, take a look at this:

    http://www.volokh.com/2012/11/29/man-sentenced-to-jail-after-mocking-disabled-girl/

  67. “When the Constitution becomes a religion, I become very leery of its priests.

    Giving a pass to adults who verbally abuse children on the basis of Constitutionally protected free speech smacks of a rigidness of form found mainly in the religiosity of true believers.

    Count me out.” (Blouise)

    To which you responded:

    “Careful what you wish for.

    You just may get it.” (Gene)

    Although you were talking about points you introduced regarding Boemher or McConnell, those were not my points so I have no response.

  68. CANTON, Ohio, Nov. 28 (UPI) — An Ohio man will spend most of January in jail for bullying the disabled daughter of his next-door neighbors, a judge decided.

    Municipal Judge John A. Poulos handed William M. Bailey a 29-day jail sentence for mocking Hope Knight, 10, who suffers from cerebral palsy and needs crutches to walk, The (Canton, Ohio) Repository reported.

    Hope’s mother, Tricia, said her daughter is afraid of Bailey.

    “She wants the blinds closed. She doesn’t want to go outside,” Tricia Knight said.

    Charges of disorderly conduct and aggravated menacing were filed against Bailey last month,

    He pleaded “no contest” Tuesday to amended charges and was ordered to report to jail Jan. 2 and to pay $400 in court costs and fines.

    Read more: http://www.upi.com/Top_News/US/2012/11/28/Ohio-man-mocked-disabled-girl/UPI-54871354117966/#ixzz2DeUZ4cpm

  69. I agree with the remarks of Tony C, above. If the mocking (not an isolated incident, but a pattern of behavior) had taken place in school at the hands of another student, I doubt people would be defending the first amendment rights of the bully. Bullying is actionable behavior on the part of schools. It seems to me it is reasonable to extend the same justification to a case like this.

  70. Actually I was addressing the more general point of the wisdom or lack thereof of regulating speech, Blouise, using them as exemplars of why that might not be such a good thing to rush in to, but I cannot argue that “no response” is an invalid response.

  71. @Gene: I still see nothing in the written law that demands any pattern of abuse for IIED. Is this a cultural thing in the court? It is not in the law. The closest I find is that a pattern of abuse goes toward “intentional” but is not required.

    The qualifications for what qualifies as “emotional distress” appear to be that a typical person, upon witnessing the behavior, would express outrage. That test is certainly met, I do not see anybody on either side of the argument that has not expressed outrage.

  72. Tony,

    IIED is not what is alleged here. Even then, you’d have to prove intent. There is no evidence of intent here other than intent to be an ass on this guy’s part. If you don’t like the way the term psychological abuse is defined at law though – and that is what is required to prove psychological child abuse – I suggest you take it up with your representatives.

  73. nate arwich:

    7 comments vs. 90 plus comments. It seems to me that part of the attraction of this site is to ferret out the truth and to voice a multitude of opinions and observations about a particular subject.

    To compel the reader to think about different perspectives on the event and to home in on what is true and what is ancillary.

    We all agree the tormentor was an a$$hat.

    .

  74. @Gene: IIED is what I am alleging here; by mocking her disability, and his intent to mock her is obvious on the face of it, he did not do that by accident, and there is no reason for mocking her other than to cause her emotional distress.

  75. “Wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince. The difference, so far as it relates to the superiority of republics over monarchies, lies in the less degree of probability that interest may prompt abuses of power in the former than in the latter; and in the security in the former agst. oppression of more than the smaller part of the society, whereas in the former(7) it may be extended in a manner to the whole. The difference so far as it relates to the point in question—;the efficacy of a bill of rights in controuling abuses of power—;lies in this, that in a monarchy the latent force of the nation is superior to that of the sovereign, and a solemn charter of popular rights, must have a great effect, as a standard for trying the validity of public acts, and a signal for rousing & uniting the superior force of the community; whereas in a popular Government, the political and physical power may be considered as vested in the same hands, that is in a majority of the people, and consequently the tyrannical will of the sovereign is not [to] be controuled by the dread of an appeal to any other force within the community. What use then it may be asked can a bill of rights serve in popular Governments? I answer the two following which though less essential than in other Governments, sufficiently recommend the precaution. 1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion. 2. Altho’ it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter source; and on such, a bill of rights will be a good ground for an appeal to the sense of the community. Perhaps too there may be a certain degree of danger, that a succession of artful and ambitious rulers, may by gradual & well-timed advances, finally erect an independent Government on the subversion of liberty. Should this danger exist at all, it is prudent to guard against it, especially when the precaution can do no injury. At the same time I must own that I see no tendency in our governments to danger on that side. It has been remarked that there is a tendency in all Governments to an augmentation of power at the expence of liberty. But the remark as usually understood does not appear to me well founded. Power when it has attained a certain degree of energy and independence goes on generally to further degrees. But when below that degree, the direct tendency is to further degrees of relaxation, until the abuses of liberty beget a sudden transition to an undue degree of power. With this explanation the remark may be true; and in the latter sense only, is it in my opinion applicable to the Governments in America. It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power, and that the line which divides these extremes should be so inaccurately defined by experience.” – James Madison, Letter to Thomas Jefferson, October 17, 1788.

    Which I think goes precisely to my point that the regulating of speech (or any liberty) is fraught with the potential for abuses.

  76. Tony,

    What you allege is irrelevant to what was charged. As I told someone the other day, if a frog had wings it wouldn’t bump its butt when it jumps. You can play the supposition game all day if you like. I’ll stick with the facts as presented and the law as it exists, not how you think it should be.

  77. That being said? Do I think the parents should look into the possibility of pursuing IIED in civil court? Sure. But criminal child abuse is a non-starter without a pattern of behavior.

  78. Blouise:

    thanks to you and gbk for the link. Fascinating read.

    And there is a treasure trove of letters back and forth from many significant historical figures.

  79. People mocking people has gone on as long as humans have had the ability to communicate….. Animals mock animals….. We are called the evolved species….. Some yes…. Some no…. Chicken shitz are all over the place…..

  80. So, she was afraid to have the curtains open at home because of these bullies? That may show a ‘pattern of abuse’. There may be more, and I doubt this is the first time.

  81. “Which I think goes precisely to my point that the regulating of speech (or any liberty) is fraught with the potential for abuses.” (Gene)

    Cheery picker.

    But I stand firm on the point that a rigid religiosity as to the divinity of the First Amendment which proclaims and grants a protection for all those who verbally abuse the weakest and most vulnerable class within our society is a stance granting an ‘undue degree of power’ to free speech. Such a stance betrays that which free speech was meant to protect.

  82. Thanks. I am cheery, Blouise. ‘Tis the season and all that despite fighting off a wicked cold. However, I was not cherry picking as Madison was quite clear about the potentials for abuse inherent in both too much and too little governmental power. You and Tony are both arguing what you think the laws should be. I’m arguing what they are and that going down the path of protecting feelings is a particularly dangerous path as it relies inherently upon a subjective standard. Consider the cross burning example. Is such a display likely to upset a black person? Sure it is. But cross burning is not a crime unless the intent of the cross burner is to intimidate said black person. They can be as upset as they like but absent proof of intent to intimidate, it’s protected free speech. If you wish to protect children – which I agree is within the spirit of the right of free speech itself as a philosophical and ethical matter – then any such laws would have to be carefully crafted to be minimally intrusive on the right being limited and set to a narrow objective standard, not just that “someone’s feelings got hurt”. As indicated, the parents may be able to pursue an IIED claim in civil court which would be adequate remedy and thus making a legal novation not only unnecessary but – as Madison admonishes indirectly – unwise. Every time we create a class based on something subjective, we create a danger for abuse. To be clear, I’m not arguing that you guys are wrong in wanting to do something to provide a more specific remedy when children are involved. I’m saying that you should be very very mindful of the Pandora’s Box you open when addressing such matters as even if you can craft a reasonable exception for free speech based on a legitimate governmental interest? It can still come back to bite you in the ass as a rational for further eroding the right as precedent.

  83. Gene that is why this case sucks.

    At least with the ‘free speech’ right of the WBC the community could effectively block with more ‘free speech’- the lines of people dressed as angles, etc.

    This man & his son live right next door to the victim. Could they get a restraining order? He can still mock her as he goes out to get the mail.

  84. I think it should have been handled at the school by a councilor who could talk with the son and his father about their actions. Some trained person in the community should have been consulted. The son still needs to talk to someone about this now that his dad is in jail.

    The threats to choke someone should be reported to the police for a record of violence by a neighbor. Yea, this case stinks.

  85. “Could they get a restraining order?”

    Possibly, shano. Actually as this has played out so far, I think some judges would condition this guy’s release upon no further contact with the child, but since he’s got the maximum already on the charges and will simply be free at the end of his term? We’ll just have to see. It would be more in line with my expectations if the guy was serving a shorter term with probation, but I’m not sure what the Ohio sentencing guidelines allow. Absent that? It would depend on how strong the parent’s case for applying for an RO independent of the criminal charges are and in this instance they are probably pretty good. However, remember an RO is only a piece of paper. It may not stop him, but it would provide grounds for immediate arrest if he violates it.

  86. Gene,

    You keep misstating my argument to match your points. You call it “feelings” or “hurt feelings” but that is your misinterpretation in an attempt to force me to argue from that platform. I won’t do so.

    I am stating quite simply and plainly that raising the status of Free Speech to that of an unquestioned deity and thus demanding that the man in question be permitted, under the guise of “free speech”, to abuse a class of citizens who are the weakest and most vulnerable of all the classes without hindrance is wrong.

    Down through the centuries we have righted many things that were wrong with the Constitution … we freed an entire class of citizens from Constitutionally protected slavery, we freed another entire class of citizens from Constitutionally protected nothingness when we gave women the vote, we stopped sending young people to die in war when the Constitution refused to give them a vote by changing the voting age … perhaps it is now time to consider whether or not the weakest and most vulnerable of all the classes needs some help through Constitutional reworking.

    I have to admit that I’ve never thought much about the exclusion of children from the Constitution but this matter of representing the verbal abuse by adults of children as protected free speech has focused my attention on the subject.

  87. “I am stating quite simply and plainly that raising the status of Free Speech to that of an unquestioned deity and thus demanding that the man in question be permitted, under the guise of “free speech”, to abuse a class of citizens who are the weakest and most vulnerable of all the classes without hindrance is wrong.”

    And I am saying why infringing upon a fundamental right – no matter how noble the cause – is an intrinsically dangerous action.

    I’m not mischaracterizing your argument. Your platform is fine right where it is. I’m making a counter proposition that highlights why changing a fundamental right a risky idea. Perhaps you are too used to my use of direct deconstruction and/or redirection. For this style of argumentation, I don’t need your argument to change one bit. Pointing out risk in fact works better if you don’t change your argument. :mrgreen:

  88. Blouise, In the “Lincoln” movie one of the lines was that if you give black men the right to vote then next women will get the right to vote. The gasps were louder for the women’s vote.

  89. Gene,

    Ah, but is the verbal abuse of children by adults a fundamental right?

    If it is not then Free Speech does not apply and Free Speech can never make it a fundamental right.

    Do you see the direction from which I am coming?

  90. There is no instructions to tell people to love in the constitution. Constitution does not even resembling the KJV. What do you suppose is keeping people in line, love which brings peace or fear which it the beginning of war?

  91. here is no instructions to tell people to love in the constitution. Constitution does not even resembling the KJV. What do you suppose is keeping people in line, love which brings peace or fear which is the beginning of war?

  92. Blouise,

    I understand perfectly well where you are coming from. In fact, if you read back you’ll see I even agreed with it in principle. Where I’m coming from is free speech is the fundamental right in question. Even when you think the content is wrong such as verbally abusing children. Right now, with the law as it is, it’s free speech unless there is a pattern of abuse – requisite to prove criminal psychological child abuse – or you can prove the intent portion of the elements for IIED in tort. Given that the first criminal charge is likely right out and second tort charge is actually not a bad case, that means new law to address this problem is not only risky, but a bad idea due to ancillary risks involved in restricting a fundamental right. No new law is needed to address this issue. Use what we’ve already got on the books. If you want to consider an alternative to create a deterrent effect? I’d suggest a penalty enhancement for IIED when it involves children rather than criminalizing speech. It’s safer for our rights and it still provides deterrent to verbally abusing children albeit civil and not criminal in nature and it preserves the objective intent standard. Some remedy exists in the law as it is for the what you find upsetting and that is IIED in tort. To reject it because it is imperfect is the Nirvana fallacy and ignores the easier solution of an exacerbating factor for penalties with existing law. Do you really want to create a precedent for criminalizing speech based on offense? Don’t you see how that could get out of hand and is ripe for abuse for political purposes? Even if used simply as precedent? Because that’s what criminalizing that type of speech could and would likely lead to in the hands of those who only dream of political power.

    I’ve been told I’ll wake with a hand gnawed off by my feline overlords for using this expression, but there is more than one way to skin a cat.

    Restricting speech or any right should only be done on a very narrow basis for substantive social benefit and only when there is no other viable alternative.

    Do you see where I’m coming from?

  93. Gene,
    once again, you are spot on about the dangers of restricting speech. As I stated earlier on this thread, free speech is messy. You highlighted the viable current legal measures that can be utilized to protect children without restricting the freedom of speech. If we restrict free speech to allow for an exception when people are not being nice to children, it opens a wide door for abuse.

  94. Gene,

    Perhaps it was the suggestion in the original article … presenting what this man did as “mocking” which is a relatively mild term when one considers the scope of his actions … that caused me to stop a moment and think. Does such abuse deserve the term “mocking”? Are adults who verbally abuse children to this degree merely mockers and thus protected by Free Speech? Is that really something Civil Libertarians wish to defend as a protected right under Free Speech? It would seem so. Thus, adults who verbally abuse children to the degree this fellow did are merely practicing their right of Free Speech and the Constitution has their back.

    Well, the Constitution had the backs of Slave Owners, kept women in a lowly place and allowed those who could not vote due to their age to be sent off to war to die. So I guess it’s no great surprise.

  95. Blouise,

    Free speech is, as raff notes, a messy thing. It’s not against the law to be a jackass and I’m not defending this clown’s actions. I’m defending the right to free speech and the Constitution. Like I said, there are alternatives that don’t require limiting speech to take care of guys like this.

  96. Gene,

    Yes, but … was Free Speech ever really the issue or perhaps, more properly stated … at issue? Characterizing his actions as Free Speech was perhaps erroneous from the get go and suggesting that his free speech rights had been violated was never really the case.

    In other words … how, exactly were his First Amendment rights violated in that Court Room?

  97. Blouise has the real question.

    To describe this man’s behaviour as Free Speech is to bring the Constitution into disrepute.

    If he is not making a political point in that behaviour, then he’s just a bully and provoking a breach of the peace.
    If the guy persists in this sort of behaviour, what do we want a society to do?
    1) Get a mob together to do violence to the guy until he stops?
    2) Deal with the situation via police/courts?
    3) Blame the victims for not moving to another town?

  98. You miss the broader point of free speech if you confine it to political speech. It is far more than just that. It is also the right to free thought and free expression. Even thoughts others might not like you expressing. This crime was based in his expression of his thoughts, no matter how ugly they were, and when you talk about criminalizing the expression of his thoughts, you are talking about his freedom of speech. As a line of questioning, I did not introduce the Constitutionality of what he had done. Blouise and others did that before my arrival, so apparently it was an issue on people’s minds. That examining the issue does not lead to a solution where this man should be punished for his free speech is immaterial to the issue being relevant in discussion of this case.

    I am not saying this guy should not be punished or that he can’t be punished but we must as citizens be sure of why he is being punished and how he is being punished and that such rationales are not based on limiting his expression. It’s not his words that are the problem. It’s how he used them. The hue and cry was for more severe punishment for the what he said – a criminal remedy and it was criminal remedy that was applied here, which is not only Constitutionally inappropriate, it discounts a perfectly viable civil remedy that already exists. Mocking someone is not a crime. The DC charge can fairly be described as trying to criminalize his speech. He wasn’t inciting riot. He was acting like a douche bag. His acts involving the menacing charge are another matter and criminal charges are merited there as he did threaten violence. You must keep in mind that criminal law and civil law are distinct. Criminal law and torts are separate courses and areas of study for a reason. One of the major differences is in how and when incarceration is used. This is at the core of “why this case stinks” – it straddles the civil/criminal line. In addition it is emotionally charged because of children being involved and emotional thinking is not the way to go about dealing with social issue with potential impact to our fundamental rights.

    Criminalizing speech is a dangerous action politically. As I said before, careful what you wish for, you just may get it. If you’re concerned about your rights? You should encourage the parents to pursue IIED in civil court because seeking to create a criminal remedy as this a recipe for Constitutional disaster. If you want a more severe punishment for this kind of action? You should consider seeking to have aggravating/exacerbating penalties added to the already existing civil remedy of IIED when children are the target rather than make what he did a crime. Those remedies, however, will not involve incarceration as it is a civil matter unless the defendant later defies a valid court order . . . such as “You are to never have contact with this child again before they reach the age of majority.”

    Laws and remedies at law must be carefully crafted lest we through the baby out with the bathwater. Mockery is not a crime. It may rise to the level of a civil wrong depending upon circumstance, but mockery is not a crime in and of itself. It is protected free speech.

    And that was the question: “If mocking a little girl can be charged as disorderly conduct and menacing, how about mocking other people for political or religious reasons? This man appears a perfect tasteless cad. However, should he be criminally charged?”

    The answer if you are concerned about such trifling things as your rights is “no”.

  99. @Blouise: I agree with you.

    I do not believe in Gene’s insistence on a “pattern of abuse” related to IIED, it is not written in the law of any state I looked up. The law is written plainly, and that test is plainly not in there. The law school study material calls it a “contributing factor” that goes to Intent, NOT a prerequisite.

    The “Intentional” infliction is obvious to casual observers, nobody viewing the jerk’s actions has any doubt as to his intent. We do not need a bright line drawn, juries are used precisely to sort out gray lines and (in IIED cases) to decide whether the actions were sufficiently outrage provoking to trump free speech. I think a jury viewing this video would not have a problem doing that.

    You are also correct that the Founders gave short shrift to many classes, in particular on the right to vote. But notice that of all the restrictions on who can vote, we have over time corrected all of them. However, we have still not eliminated having a minimum age on voting, because we still believe, correctly, that children are not mentally mature enough to vote, think rationally, or understand adult issues. That was one the Founders got right.

    Claiming that any alteration to the Constitution is a slippery slope is not a valid argument either; we have made alterations in the past and survived. I would not doubt that slippery slope argument was trotted out by opponents of virtually every Amendment since the Founders. It is not an argument at all, there is no proof of any danger in slipping down the slope, it is nothing but an assertion of “I like it the way it is.” By analogy, those that defend traditional marriage are always screaming about slippery slopes of bestiality, incest and polygamy that are all pure fantasy.

    We already have several exceptions to free speech, consent, and actions with regard to under-age minors, adults cannot hire them as full time workers, sell them (or even give them) alcohol or cigarettes, let them in a strip club or sell them pornography.

    Now that I think of it, pornography is a good example. I do not believe we should outlaw pornography made by consenting adults, I think that is free speech, and I think selling it is free speech. But I agree with outlawing the sale or marketing or even gifting of that pornography to children. I think that is a valid restriction of free speech. I do not think that is wrong because of what it implies about the motives of the seller, the motive may be just to make a few bucks selling a movie. I think it is wrong because the speech is not suitable for an immature mind.

    In such restrictions, it is their age that acts as the fence that keeps us off any slippery slopes. Crafting another such restriction would not be a watershed moment for the Constitution, it would just be correcting another flaw in our protection of children from cruel, careless, abusive adults.

  100. “I do not believe in Gene’s insistence on a “pattern of abuse” related to IIED”

    Straw man much Tony? The pattern is related to how psychological abuse is defined for criminal purposes, i.e. child abuse charges. I never said otherwise. Just because you can’t keep track of how many times you moved the goal posts doesn’t mean I can’t.

  101. “Claiming that any alteration to the Constitution is a slippery slope is not a valid argument either;”

    Ooo. Another straw man. I never said amendment was always a bad idea. I said it’s a dangerous idea when it involves restriction of a right.

  102. “In such restrictions, it is their age that acts as the fence that keeps us off any slippery slopes.”

    Thus illustrating you have no idea what can be done in the name of precedent.

    Once you start eroding a right, you create openings for other erosion once a precedent is released into the wilds of the court system. That such future errors may be corrected does not change that the potential for abuse is there. Age presents no barrier at all for potential abuses based on precedent. Once you start imposing restrictions, the next one becomes just that much easier to argue for.

    Also, your commercial examples of sales to minors is facile logic and predicated that commerce is a right analogous to free speech and it isn’t. The right to regulate commerce is specifically retained to the government in a little something called the Commerce Clause. Free speech, however, is a broadly protected fundamental right and the wording of the 1st Amendment proves this contention and the very limited circumstances where speech content is criminalized (fighting words, incitement, or the political crime of sedition) or held actionable in tort (defamation and IIED) bolsters the contention that it is such a right and created so on purpose by the Founders. All of those crimes and torts are very narrowly tailored to specific valid governmental interests where no other remedy existed. Other remedies exist in this instance. That you don’t like the penalty is irrelevant. As I said, seek to get the penalties changed for IIED if you want more severe punishment, but seeking to criminalize speech is just a bad idea.

    You are advocating abridging a fundamental right in the name of what exactly? Your personal sense of outrage? Your inability to understand what I said about IIED claims? I’m really glad you aren’t a lawyer, Tony. Your indignation does not equate to illegal or unconstitutional no matter how much you bold face and stomp your feet.

    If you think a speech restrictive amendment is the way to handle this issue?

    You’re simply wrong.

  103. @Gene: Okay, you are right, I over-generalized your statement. But “a dangerous idea when it involves restriction of a right?”

    That is an assertion of a slippery slope, which is just a scare tactic, an assertion of danger without proving any danger exists. As I said, our rights with regard to speech to minors are already restricted; incidentally or not, and I do not believe one more such restriction would undermine our Constitutional right to free speech between adults in any way. The existing restrictions provide punishments (including criminal) for adults that fail to make the distinction between children and adults. That is something this cruel adult should have considered, too.

  104. @Gene: your commercial examples of sales to minors is facile logic

    You seem to overlook the fact that I included gifts to minors. Free speech protects handing out of pamphlets and free material; but you cannot hand out free pornography to children; you cannot let children into a strip club for free, you cannot pose naked for child artists for free. Those are protected free speech activities between adults that they cannot engage in with children.

  105. @Gene: Other remedies exist in this instance.

    Only if you pay for them, by bringing suit, which may be lost. I think it is a criminal issue of an adult abusing a child; punishment of criminal issues should never rely upon whether the injured party can afford the expense and risk of going to court.

  106. Tony,

    That’s your opinion and it would be wrong. A slippery slope argument is not a scare tactic when dealing with a matter such as restricting rights. It’s a valid argument that weakening a right without narrow definitions and narrow scope combined with a legitimate interest when other remedies apply is unnecessary and unwise as it can and likely will lead to further erosion but especially if the restriction is over broad. That is simply how that works whether you think so or not and I know this because history tells me so. I’ve already pointed to a perfect example of this kind of erosion of rights as presented by the never ending threat to our 4th Amendment rights from the Patriot Act.

    The goal of our Constitution is maximized liberties, not look for excuses to take them away. To restrict governmental power to affect your rights as defined by the document’s framework. “As I said, our rights with regard to speech to minors are already restricted”. No. You created a false equivalence between free speech and commerce and tried to conflate what is actually being regulated in your examples – commerce – into what isn’t being regulated – free speech. “The existing restrictions provide punishments (including criminal) for adults that fail to make the distinction between children and adults.” No. The existing restrictions in the criminal arena punish a pattern of abuse, not free speech, or actions or attempted actions like sex with a minor that society has deemed both mallum in se and mallum prohibitum. You aren’t forbidden to speak about pedophilia, just to attempt or actually do it. If you were prohibited from speaking about it? You wouldn’t be able to buy a copy of “Lolita” or “Pretty Baby”, i.e. free speech would be restricted because of content. I don’t know about you, but I like Nabakov. You seem to have a problem unraveling speech from action. Just because some words are so intertwined with an action they cannot be disengaged from it (to paraphrase Justice Black) does not mean all words cannot be disengaged from an action. It is the freedom of speech and consequently thought that must be preserved, no matter whether you like the content or not. You are free to disapprove of content all you like, but the action in restricting content is simply censorship. One thing is clear from the 1st Amendment is that the Founders were not into censorship. That the courts have continually ruled against such practices as book bannings and the like bolsters this contention. There are ways to punish people like this, but criminalizing speech is not the way. Enhancing the tort sentencing options provides remedy without infringing upon any right so long as the enhancements are equitable and not cruel and/or unusual.

  107. @Gene: You are advocating abridging a fundamental right in the name of what exactly? Your personal sense of outrage?

    Not my personal sense of outrage, on the fact that a super-super-majority of people viewing this man’s actions find his behavior cruel and abusive on sight.

    As I have said many times on this blog, most law we pass is a consequence of people doing something that was previously lawful but evokes public outrage. So although my personal outrage is typical, it is only one in the majority. The justification is the public outrage, which I think is apparent. And I agree with Blouise and reject your characterization of this man’s actions as a “fundamental right.”

    I do not believe the full force of freedom of speech between adults applies without any modification to freedom of speech between an adult and a child. I believe there are exceptions to be made, and I think this is one of them.

  108. Jesus H. Tapdancing Christ you are dense.

    “I think it is a criminal issue of an adult abusing a child; punishment of criminal issues should never rely upon whether the injured party can afford the expense and risk of going to court.”

    What you think it immaterial to what the law is. Like I said before, you can play the supposition game all you like, Mr. Scientist, but I’m dealing with the reality of the law and the facts presented. The law for proving child abuse requires establishment of a pattern of behavior – a much higher burden than that the of the tort of IIED where a pattern is not required, merely proof of intent. That is for good reason, Tony. One is a crime you can be incarcerated for and the other is not. That you think IIED should be criminal is about as bright as Greenspan saying fraud should be legal (which he does, btw). IIED? It’s not an easy tort to prove, but in this case, not so much. Plus you take your tortfeasor as you find them. They the economics of the transaction may not make suing a winning proposition is another matter. This guy probably doesn’t have property or other assets worth getting.

    If your problem is access to courts? That’s a different issue than criminalizing free speech because you’re offended by the content. Criminal wrongs and civil wrongs are discrete for a reason. Your solution to restrict speech is draconian, oppressive and based in emotion, not reason.

  109. “Not my personal sense of outrage, on the fact that a super-super-majority of people viewing this man’s actions find his behavior cruel and abusive on sight.”

    Supposition. You have no proof most want this kind of speech criminalized. Also you ignore that remedy is available in tort. If you don’t like the legal standards required to prove criminal child abuse, take it up with your representatives.

    But you’re not really interested in preserving rights if your solution is to criminalize speech when other remedies at law exist. Your entire argument boils down to one big Nirvana fallacy: you don’t think the solution is perfect so your reaction is to overreach and restrict rights unnecessarily and unwisely out of a sense of moral outrage. You’re no better than a book burner taking that stance. You want to censor content of speech just as they do. And they are usually looking to “protect the childrens” too. So you have that in common as well going for you. Which is nice.

  110. @Gene: Supposition. You have no proof most want this kind of speech criminalized.

    Now you are trying to put words in my mouth. For what I said, this blog and others are the evidence; I haven’t seen a commenter yet that doesn’t believe this guy is jerk, aszhole, etc. I do not think it is a stretch to generalize their reaction as outrage over him being cruel and abusive toward a child. I did NOT say most want this kind of speech criminalized, I said most are outraged, and that is something that in the past has often prompted the crafting of laws to prohibit previously legal behavior.

    I did not ignore that remedy is available in tort, in fact I explained why I found that to be a flawed approach; that is the opposite of ignoring it, I addressed it.

    Your entire argument boils down to “speech to children is no different than speech to adults.” That is YOUR fallacy.

    The rest is just angry insults; and you are the one that overreaches. I am not a book burner, they want to prohibit speech between adults and I abhor that. So that is another application of your fallacy, equating the prohibition of outrageous speech to children with the prohibition of outrageous speech in general. I do not want to censor speech between adults.

    And no, I am not dense, I just do not believe you have made a good case; it is an assertion of amorphous danger I do not believe exists.

  111. “Not my personal sense of outrage, on the fact that a super-super-majority of people viewing this man’s actions find his behavior cruel and abusive on sight.”

    Yet you find fault with civil remedy and want what as the alternative? There is only one alternative aside from modifying civil penalty and that is to criminalize the speech.

    “Your entire argument boils down to “speech to children is no different than speech to adults.” That is YOUR fallacy.”

    That’s not the basis of my argument. The basis of my argument is protecting a right, not excusing this guy for being an ass to a kid.

    “The rest is just angry insults; and you are the one that overreaches. I am not a book burner, they want to prohibit speech between adults and I abhor that.”

    No. You want to criminalize speech based on content. That’s what book burners do. And quite often they do come bearing the “think of the childrens!’ banner. But they aren’t picky about who they would restrict content to. They don’t want anyone “reading that garbage”. I’m not angry that you overreach. I’m disappointed.

    “And no, I am not dense, I just do not believe you have made a good case; it is an assertion of amorphous danger I do not believe exists.”

    And that’s your belief. An opinion. You’re free to believe what you like and express those beliefs, but just because you don’t recognize a danger doesn’t mean it doesn’t exist or that you’ve disproven its existence, only that you don’t believe it. The fact is that in law, rights taken away are rarely if ever given back if a “mistake” is made. They usually have to be taken back and by force at that. That’s precisely the lesson and the danger you see with the 4th Amendment and the Patriot Act and yet you fail to see that as applicable to the 1st Amendment as well. That is, in a word, dense. “Hey, Tony! There’s a lion over there. It looks just like the lion that ate Bobby last week.” “No there isn’t. I don’t believe in lions even though I’ve seen them.” Upon which our story ends with Tony being eaten by the lion he doesn’t believe in.

  112. tony c:

    in my opinion Gene H is right about this. In my opinion you always err on the side of doing nothing when it concerns a restriction of individual rights.

    We have lost enough rights already because of the Patriot Act. I wish some current or future politician would have the balls to make it his singular reason for living to abolish that evil beast and the temple it created.

  113. @Bron: I agree we have lost rights due to the Patriot Act, I agree I would like to see it repealed in its entirety. I disagree that situation conflates with this one; a violation of one’s right to privacy should not give somebody permission to abuse a child.

    Rights aren’t a long balloon, where we expect downward pressure on one right to inflate the rest of them.

    In my opinion, as Madison noted in the closing sentence of his letter to Thomas Jefferson, “It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power…”

  114. “I disagree that situation conflates with this one; a violation of one’s right to privacy should not give somebody permission to abuse a child.” You have the guts to say “conflate” when you make a statement like that? We’re not talking false equivalences here, Tony. We’re talking enumerated rights being eroded by law (or proposed law) – an exact equivalence. We aren’t talking about one right excusing another. That’s gibberish. You also conveniently and completely gloss over that “too much” part in Madison’s letter, Tony. That’s some pitiful cherry pickin’ there. The refutation is in the same sentence.

    I don’t expect you admit you’re wrong on this Tony. It’s not in your nature. But I did expect a better argument from you than rank emotionalism, straw men and a willingness to throw your rights under the bus in the name of “think of the childrens!” – especially when remedy can be had albeit not to your satisfaction.

    Your satisfaction seems to hinge on criminalizing speech.

    That’s just sad from a self-proclaimed liberal.

  115. Come on Gene, Tony’s argument is just fine and there is very little emotion tied to it. Protecting children from the abuses of adults isn’t an emotional issue, it’s a practical matter and the reasons listed as to why, when, and where are legitimate. To refute them you must disprove them and claiming “emotionalism” doesn’t do the job because it is a false claim to which you tied yourself early on with your first sentence:

    “Oh noes! Think of the childrens!”

    Now that was emotionalism.

    The slippery slope tactic is not working simply because we who disagree with your argument recognize the vulnerabilities of the class in question (children) and society’s responsibility to that class as reflected through our Constitution.

    And I am still waiting for your explanation as to how, exactly, William Bailey’s First Amendment rights were violated in that Court Room?

  116. No, Blouise. Tony’s argument is for criminalizing speech when it isn’t necessary to address the problem because when other remedy that doesn’t touch upon rights at all are available rationalized because children are involved. It’s a crap argument from a rights preservation standpoint and from a justice and equity standpoint. He’s trying to make a crime out of a situation that is arguably an existing tort. He only had to move the goal posts twice to do it too.

    “‘Oh noes! Think of the childrens!’

    Now that was emotionalism.”

    No. That was mockery of emotionalism underlying the “protect the children” argument for criminalizing said speech. I’ll remind you mockery isn’t against the law. But that’s what Tony proposes. Neither is satire, parody or insult.

    “I am still waiting for your explanation as to how, exactly, William Bailey’s First Amendment rights were violated in that Court Room?”

    And you can wait until you turn blue. No one said his rights were violated, but rather that the DC charge seemed to be punishing him for the content of his speech out of proportion to his actions. Punishing someone for an action – speaking and the content of that speech – one doesn’t approve of under the color of a crime is a miscarriage of justice. It creates the appearance of a kangaroo court. The menacing charge is appropriate. He threatened the mother. The DC charge reeks. Ask yourself this: if the child hadn’t been present, would he have been charged with DC? Absolutely not is the only correct answer. Disorderly conduct is a nebulous charge to begin with. If the DA had gone with menacing only or with the greater charge of criminal child abuse (assuming a pattern could have been sufficiently established) we wouldn’t even be talking about this case. Charges must be appropriate for the crime and the punishment must be for an actual crime. He’s arguably being punished for something else: the content of his speech. And I’m most certainly not okay with that. It does present a Constitutional issue. A slippery slope argument is not invalid when there is actually a demonstrable slippery slope effect created by abridging rights. It’s only a fallacy if the negative consequence is described as inevitable. I’ve said “likely” or some variation thereon all along and pointed to historical examples of such slippage in regard to fundamental rights. Further erosion might not happen. However, with a fundamental right in question and given our recent track record as a nation on protecting our Constitutional rights, it’s not a chance worth taking when there are other remedies to be had.

    Other ways to punish this behavior exist that don’t bring the 1st Amendment into play. They just aren’t criminal in nature applying the facts at hand in the present case. You want a criminal remedy for the content of his speech? Prove a pattern of psychological abuse and let the DA file for criminal child abuse. Then both content and intent become relevant. That’s already on the books. But this? Is a distortion to criminally punish for something not in and of itself a crime. It’s arguably (and I think strongly arguably) a tort: IIED. It’s a tort based on his intent. It is not, however, a crime based on the content of his speech – the appearance the DC charge creates.

    I’m arguing against the notion his speech should be criminalized which is what you two both seem to think is an appropriate remedy.

    You and Tony may be willing to gamble with the 1st Amendment – apparently in the name of protecting children being your prime rationale which is noble but misguided as it invites further degradation of the right by establishing precedent.

    I am not.

    “To protect the Constitution from enemies foreign and domestic.” That’s the oath. And it applies to protecting it from well-intentioned do-gooders as well as enemies.

  117. Gene,

    Thank god I won’t be turning blue for it is as I suspected … a teaching device used to further discuss and explore the Civil Libertarians view on Free Speech.

    Exit Mr. Bailey … a weak basis upon which to mount any argument.

    Now … as to your slippery slope contention … Tony answered that quite well with the following and several other paragraphs repeating the same:

    “But the Constitution was written with implicit reference to adults throughout, it does not specify anything about children; other than setting various minimum ages of eligibility for voting and offices. All existing laws governing the interaction of adults with children, and adult speech with children, are exceptions to the absolute right of free speech. What I propose should be the law is nothing different; there are forms of speech from which children should be protected due to the immaturity of their minds, emotions and cognitive ability. Presumably a condition recognized by the Founding Fathers in prohibiting them from voting.” … “In such restrictions, it is their age that acts as the fence that keeps us off any slippery slopes.”

    Once again, this is not do-gooderism or emotionalism … it is practical recognition of fact. We evolve and the Constitution must be a part of that evolution or … well, you know what happens.

  118. Gene H.
    1, November 30, 2012 at 2:18 pm
    BTW, I do admire that you’re both well-intentioned do-gooders. Intent counts in more ways than one.

    ———————————————————————–

    I bet all three of us could be some very good do-badders … ;)

  119. @Gene: I don’t expect you admit you’re wrong on this Tony. It’s not in your nature.

    On the contrary; it IS in my nature to admit when I am wrong, I just do not believe that I am wrong, in this case. If you have anything to complain about my nature, it is that I am stubborn and demand a higher standard of proof than your mere assertion of danger. I admit you are better informed than I on the matter of law, but that better informed condition has produced nothing of note in this argument; you simply continue to reiterate your stance that nothing should violate absolute freedom of speech. That is not self-evident to me. Stamping your feet or re-shouting it does not convince me; but hey, feel free to do that as much as you want; I will stand by.

    My position is that we have in effect criminalized all sorts of speech between adults and minors that is entirely legal between adults; and this would be just one more; that adults have a responsibility to be careful when communicating with children that are not in their care.

    The courts have no problem distinguishing these other forms of speech that result in criminal charges when addressed to children, adults can still propose a sexual relationship to another adult without facing charges. Despite that obviously successful exercise in prohibiting certain forms of speech to children, you still insist this would be a precedent that invites degradation. The precedents exist already, and the courts and lawmakers have successfully refrained from broadening them beyond their applicability to children.

    I think you are wrong but do not expect you to admit it, because I don’t think you believe it. What you find self-evidently true, I do not, and vice versa.

  120. The First Amendment would support the right of any number of people to march in front of this guy’s place of work and/or home with signs saying: “CRUELTY TO DISABLED CHILDREN IS REPREHENSIBLE” and “ANY MAN WHO DELIBERATELY INSULTS A CHILD IN PUBLIC IS BAD” and “OUR SOCIETY HEAPS SCORN ON STUPID MALICIOUS ADULTS WHO ABUSE CHILDREN” and “NOBODY WHO MOCKS THE HANDICAPPED SHOULD BE RESPECTED” and etc. etc. etc.

    The First Amendment would support little films called “The Innocence of [that guy’s name, may it be forgotten] going viral on YouTube.

    Etc.
    Etc.
    Etc.

    Remember, the father and mother in NJ who named their little boy “Adolph Hitler” had First Amendment rights. But they lost their kids. Our society and even our law has room for the Society to express itself. Freely.

  121. In short, it’s not what you want to do the that’s the problem. It’s how you want to do it.

    Using age as a factor on criminalizing speech in no way prevents the precedent being applied to other applications. Any abridgement of the right creates an opening for arguing further abridgement. That’s just how precedent works. You take something similar to the outcome you desire and you argue (usually by analogy) that precedent should be controlling. Creating such openings is simply not a chance one should take with a fundamental right unless other remedy is not possible. We have other remedies possible to protect children. Again, the problem isn’t protecting children. It’s seeking to protect children by criminalizing speech, not intent (a protection that already exists).

    It’s not practical recognition of fact. It’s not recognizing that your means do not justify the ends in limiting a fundamental right. It’s ignoring creating a potential Constitutional crisis for the sake of crafting a remedy that is available via other means. Just because the Constitution is a living document doesn’t mean you should kill it because you want a specific outcome. That’s the same flawed reasoning corporatists and the GOP use.

    There is no ambiguity in the language of the Free Speech Clause. It’s not nebulous like the Commerce Clause. There is no wiggle room. All of the exceptions we have for free speech? IIED, defamation, fighting words, sedition and incitement? Are related to intent, not content.

    And I’m pretty sure if I were of an evil bent, that I could do quite well as a do-badder just on my own. With you two? Eh, I’m thinking we’d be drone fodder given the current climate.

  122. evolution isnt necessarily a good thing. The evolution must take place with the philosophical underpinnings of the document intact.

    Basically it is the individuals right to his own life, that he is a free agent belonging neither to a king, to the state or to his neighbor. We are so far beyond the confines of the philosophical intent that I imagine Jefferson and Madison, should they be re-animated by some Voodoo juju, would hardly recognize the country they started. Assuming of course they had full consciousness and not that of a zombie.

    They would be happy that slavery had been abolished and women had the right to vote but the endless wars and debt and the diminution of our rights? Not so much.

  123. “My position is that we have in effect criminalized all sorts of speech between adults and minors that is entirely legal between adults; and this would be just one more; that adults have a responsibility to be careful when communicating with children that are not in their care.”

    Thus revealing the fundamental flaw in your thinking, Tony. Legally speaking, those situations are governed by the intent of the speaker, not the content of the speech. What they say isn’t prime facie criminal. It’s why they are saying it, the mens rea seeking to further an actus reus of molestation or psychological abuse that is illegal. Seeking harm, not merely speaking words. It’s not simply criminalized speech. I can see how a layman would make that mistake, but it is a mistake nonetheless. If the speech itself was criminalized, as I said before, you wouldn’t be able to buy a copy of Nabakov’s Lolitia. It’s a fine but necessary distinction you are failing to recognize.

    I won’t admit I’m wrong because legally speaking? I’m not wrong as a factual matter.

  124. Gene H:

    “It’s not nebulous like the Commerce Clause.”

    you are right about that, I learned that you are right from an Objectivist legal professor. He schooled me real good on it too. I was quite amazed as you can probably imagine based on my dogm er point of view.

  125. @Bron: No thanks. The title alone is hypocritical enough; since the speaker obviously thinks he can help people by giving a talk instead of listening.

    It’s like, I don’t know, Blankfein telling me I need to be more willing to sacrifice.

    Shall we get biblical and talk about motes and beams?

  126. @Gene: It’s why they are saying it, the mens rea seeking to further an actus reus of molestation or psychological abuse that is illegal.

    I think it is hypocritical to claim that merely seeking to engage in the psychological abuse of a child can be a crime, even if it is a fictional child and no abuse or harm of a child ever actually occurred, but actually acting with the obvious intent of causing psychological abuse of a child is protected speech.

  127. Gene wrote: “Legally speaking, those situations are governed by the intent of the speaker, not the content of the speech. What they say isn’t prime facie criminal. It’s why they are saying it, the mens rea seeking to further an actus reus of molestation or psychological abuse that is illegal. Seeking harm, not merely speaking words.

    1) Guy communicates with a kid over the Net. He gets his jollies by talking dirty with a child. He had no intention of touching or having sex with the child. His intent is simply fantasy for his own gratification. His intent has nothing to do with the child.
    The child is actually a law enforcement officer.

    2) Guy engages in bullying a disabled child. His intent is to make the child feel bad about something that she has absolutely no control over. His intent is to cause unhappiness and stress for her and her family.
    The child is actually a child.

    (1) is a crime
    (2) is protected speech enshrined in the Constitution.
    Hooray for the good (legally speaking) guys!

  128. Tony,

    “It’s why they are saying it, the mens rea seeking to further an actus reus of molestation or psychological abuse that is illegal. Seeking harm, not merely speaking words.”

    Perhaps I should have been clearer.

    “It’s why they are saying it, the mens rea seeking to further an actus reus of molestation that is illegal. Seeking harm, not merely speaking words. It is the result of what they are saying, the actus reus, that defines psychological abuse that is illegal. Causing harm, not merely speaking words.”

    There. Complain about that instead.

    *******************

    ST,

    “(1) is a crime
    (2) is protected speech enshrined in the Constitution.
    Hooray for the good (legally speaking) guys!”

    Only partially correct.

    The first is a crime because it’s an action in furtherance whether he completed the action or not. It’s the same way they look at conspirators. You may know about something some people are planning, but unless you take an action in furtherance of the conspiracy yourself? You are not a co-conspirator. He’s free to fantasize to his twisted lil’ hearts desire, but once he involves another party, he’s taken a step in furtherance whether he intends to follow through or not.

    The second may or may not be a crime depending on the circumstances. If a pattern of mistreatment can be established, it may constitute psychological criminal child abuse. Absent said pattern, it may be covered by the tort of intentional infliction of emotional distress. Content of your speech is protected. How you use it is not always protected. Therein lies the problem with criminalizing speech itself. You are free to say what you like, but what you say can have consequences. Consider perjury. It’s not against the law to lie. It’s against the law to lie on the stand once sworn in. Consider defamation. Again, not against the law to lie. It’s against the law to lie about another for the sake of harming them and/or for material gain of some sort. Consider it’s not against the law to mock a kid. It’s against the law to intentionally inflict emotional distress but its a tort, not a crime. If it happens repeatedly though, it can be used to establish a pattern of psychological abuse, grounds for filing criminal child abuse charges.

  129. Bron,

    Although there is room for interpretation of the Commerce Clause, the Constitution is interpreted through the jurisprudence surrounding it. That’s what gives you Objectivsts/Libertarian/Randian/Austrian Schoolers trouble.

  130. According to ABC, Bailey faced two charges: one for misdemeanor disorderly conduct for his bus stop bullying, and one for misdemeanor aggravated menacing in a separate incident that Knight alleges occurred the same day and involved Bailey “swinging a tow chain on his porch” and threatening to choke her.

    His 29-day jail sentence, which begins Jan. 2, reflects the aggravated menacing charge, but Fitzsimmons told ABC that the incidents are “all interrelated” and “the judge took into account all the actions of Mr. Bailey.” Bailey must also pay court fees topping $400.

    Bailey has said he was not making fun of Hope. The Repository noted that Bailey claimed he was reacting to insults that had been directed at his own son, while he reportedly told the New York Daily News that he had been injured at work and had a genuine limp. Regardless, Bailey pled no contest to both charges against him.

    Knight has discussed the incident with the bus driver and the school’s principal, and she now drives Hope to school, ABC noted.

    Fitzsimmons told the Repository that she hopes the case with call attention to bullying problems.

    “It’s unfortunate it had to be at the expense of a family and a little girl who has it rough as it is,” she added.

    Read more: http://newsfeed.time.com/2012/11/30/man-jailed-after-bullying-disabled-child/#ixzz2DkZAjfK1

  131. This defendant should have lawyered up instead of taking a plea and waiving his rights. This is bogus and malicious prosecution based on public opinion that directly violates the defendant’s Constitutional rights. The district court judge can hide behind the broad and general charges of disorderly conduct and disturbing the peace, but those charges would have been dismissed if the due process of criminal litigation played itself all the way out. This should not be about ethical code here, it is a question of law and in this case, the law has contradicted itself for reasons not coinciding with the enforcement of the true intent of law … at least federal law which trumps state law and any of the lesser municipality laws.

  132. “This defendant should have lawyered up instead of taking a plea and waiving his rights.” (Saintsman)

    He had a very good lawyer

  133. @Bron: No, Blankfein recently said that about the middle class receiving social security, medicare and medicaid. He was saying those programs could not be afforded, and people better get used to it.

  134. @Gene: It is the result of what they are saying, the actus reus, that defines psychological abuse that is illegal. Causing harm, not merely speaking words.”

    Except those are not how the facts play out. If a perpetrator is talking to an adult pretending to be a child, then no molestation occurred and nobody was ever in danger. As I said before, the speech is effectively criminalized. Conspirators have real targets, real banks they intend to rob, real people they intend to murder, real bombs they intend to plant in real malls. In the predator cases, everything they were talking about was a fiction. They never spoke to a real child, 100% of their speech was to an adult. It is equivalent of convicting somebody of conspiring to rob a non-existent casino in a non-existent country.

    Perhaps you do not understand my use of the word ‘effectively.’ Regardless of how it is justified the ultimate effect, as proved by jailed wannabe predators, is that if you engage in sexual speech with a child, or even if you are just tricked by lies into believing you are talking to a child, you can be charged with a crime and go to jail, with no REAL victim anywhere, and no actual child ever in imminent danger.

    Exactly the same speech to an adult, with the belief that it is an adult, is entirely legal.

    Two identical acts of speech, the only difference between freedom and jail is the speaker’s belief in the age of the listener.

    Not only was no “harm caused” by that speech, there was no furtherance of any molestation or psychological trauma, because reality was purposely arranged such that no molestation or harm to an actual child could ever be committed.

  135. Tony,

    I understand the word “effectively” just fine.

    You just haven’t used it until now.

    The only other use of the word “effectively” on this page before your last post was by shano on November 29, 2012 at 8:09 pm. http://jonathanturley.org/2012/11/29/is-mocking-a-crime-ohio-man-sentenced-to-one-month-in-jail-for-mocking-disable-girl/#comment-457069

    Effectively criminalizing speech and actually criminalizing speech are different things and that is precisely the distinction I have been pointing out to you. If that is what you had meant to say, then this would have been a different discussion. However, that is not what you said as a matter of fact. You used no such qualifier.

  136. Gene H:

    the professor was most probably in substantial agreement with your thinking on the commerce clause. If I remember correctly, he said it was rather a broad brush.

  137. @Gene: You just haven’t used it until now.

    My comment of November 30, at 3:43 pm to you, reads as follows:

    “My position is that we have in effect criminalized all sorts of speech between adults and minors that is entirely legal between adults; …”

    In my world, “in effect” is synonymous and interchangeable with “effectively.” I will change my statement: Perhaps you did not understand my use of the words “In Effect.”

  138. @Gene: And I will point out you quoted that line in response to it; so presumably you read it. Apparently it did not make the discussion any different at all.

  139. “Apparently it did not make the discussion any different at all.”

    No, it didn’t. It might have if that had been for first comment instead of your nearly last comment. Consider your response and my response to it in the context of the greater conversation, Tony. The bulk of our conversation was over when you posted that although I should have read your response more carefully, true. Mea culpa on the sloppy reading but this isn’t my day job. It would not have altered my response to you much though. My response was valid though in showing the flaw with the bulk of your argument. You did spend most of the thread arguing for criminalizing speech, not effectively criminalizing speech by criminalizing something else – which was the point I was trying to make to you all along about remedy being available without criminalizing speech. That something else you wish to criminalize though – IIED when children are involved – is going have the same effect of creating precedent to argue for criminalizing it with adults. IIED is a tort for a reason. It’s not against the law to be a jackass, Tony. Even to kids. That’s because simply being a jackass doesn’t always rise to the level of harm of psychological abuse as defined by law even if the incident contains abusive content. We already have a crime on the books for when it does: criminal child abuse – which was not charged. As I said to OS, that may be an error on the part of the DA or there may not be sufficient evidence of a pattern to make that case. What you propose creates openings for abuse by the system as well. Children are children. As such, they are not always rational actors. Should a parent or adult be open to criminal prosecution for criticising a child? That can be just as insulting and painful from the child’s perspective even when done in the most innocuous and helpful of ways. Yet criminalizing IIED with children for an interaction that is simply insulting or abusive simply because a child was involved on that granular level would create situations exactly like that where a child didn’t like being told they couldn’t wear that ugly outfit out was grounds for arrest of the adult who told them that. It may have been distressing to a child to hear that, but it’s hardly criminal. If you create that opening for criminal sanction with children, it will create an opening to arguing for creating it with adults and thus contributing a problem that is discussed here all the time: the increasing criminalization of every day life.

    You can’t protect children from everything unpleasant in the world, Tony.

    It’s a nice noble and completely futile idea.

    The guy here isn’t out of the woods for retribution. He still faces what looks like a very real tort case in IIED. That the punishment would be pecuniary and injunctive and not satisfy your lust to incarcerate him further is moot. Not every problem has a solution that pleases everyone including this particular problem. The problem here is still that the DC charge seems putative rather than substantive. He’s being punished for what he said, not how he said it. Content over context. Every instance where we as a society have chosen to limit free speech (defamation, incitement, etc.) are context dependent and with the exception of fighting words/menacing, criminal child abuse and sedition (which I think is a political crime, not an actual crime), they are to a one a tort, not a crime.

    If our history is proving anything, it should be that jailing people is not always the best solution for a problem and it in fact often creates more problems than it solves.

  140. You’ll have to pardon me if further response is a longer time in coming on this, Tony. I’m partying with NyQuil today trying to head off this cold before it turns into something worse. Cursed micro-organisms.

  141. @Gene: I think we have beat the horse enough; in this instance what you find self-evidently true, I do not, and vice versa. I don’t know how to resolve that disconnect, and there are only so many ways for each of us to say we disagree.

  142. @Bron: That is cryptic enough I cannot even discern what it means. You know I am no fan of Rousseau? Or has that escaped you? I suggest you read his writings, his only claim to fame is to consistently take the unexpected side of an argument (unexpected for his culture at the time). That art and culture are a terrible influence on humanity, that education does more harm than good, that being free is slavery and being subjugated by society is freedom, and so on.

    He was not a trained philosopher, he was a college dropout, something of a hypocrite, but stumbled upon the “devil’s advocate” literary device that won him some prizes in essay contests open to the public. What was popular in such contests at the time was (what I regard as) a juvenile enthusiasm for hyperbolic comparison that resulted in black-and-white contrasts, and Rousseau excelled at that style.

    Hence his unrealistic portrayal of the “state of nature” as brutal, selfish, complete anarchy, compared to democracy (invented by Athens thousands of years earlier) as an idyllic paradise. That is what the consumer wanted, at the time, not just from Rousseau but his contemporaries. Black and White contrasts without a hint of gray.

    I find that juvenile; literally. It is the way I remember children arguing when I was a child among them. I am no fan of Rousseau; I find his argument easily dismissed; I find the “state of nature” he describes a straw man alternative. As you noted before, anarchy is pretty easy to argue against.

  143. tony c:

    then my mistake. I thought you liked JJR. Some of your views on the state are similar or at least, to me seem similar.

  144. I have a now 7 year old grandson, who has Autism.
    My daughter abruptly moved him out if his home in one day and they lived with this man for a little over two years. During that time the psychological/ emotional abuse in the form of name calling, mocking his uncontrollable tics, throwing away toys as a form of punishment, threats with spankings some with a belt, taking him to a shooting range causing him to wet his pants then mocking that. The abuse became so bad that my grandson now has PTSD, anxiety disorder, panic attacks, depression, sleep disturbance disorder, behavioral problems and I can’t remember the rest ADDED to his Autism. This 6 year old boy begged his mother to get him out of the house, he made video recordings in my phone, he write her letters, be threatened to run away, all to no avail, she betrayed him just as badly as this man abused him, on his visit with me over the Christmas vacation he had with him a run away note and was never going to go back to that house. He told me frankly, and seriously that his head was going to explode and he couldn’t handle anymore, I’d rather be in Heaven, he was 6 then. I have permanent custody of him now but he has nightmares, and a host if other psychological problems. None of us can say that only mocking the way one walks, talks or behaves because of a disability is just plain stupid but not criminal. How do you know that they haven’t been subjected to so much “it’s no big deal” mocking that the next instance won’t cause them to see life worth not living anymore. You don’t know, your not stepping in, or just passing it off as not criminal just kid stuff could very well cost them their life. My grandson is 7…he’s on suicide watch. I got no help for him during those two and a half years because it was all “harmless fun”. He’s not living a fun life right now. Next time try getting up and stepping up instead of blogging.
    You never know the life you may have saved. Thank you and please, for those of you who do please pray for my grandson.
    He’s too young to die, his eyes look emotionless except when graphically describing how he wants to kill this man.
    He last comment in his journal ( I am supposed to them, I’m not invading his privacy) was that he can never be happy again until “…”is dead! Please do not pass my grandsons abuse off as not being criminal. I live in Ohio and I plan to pursue every avenue I can until this “B…..” is in jail.

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