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
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.
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.
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:
(Warrant Required For eMail Searches).
Aggravated menacing. Really?
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.
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.
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!”
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.
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.
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.
@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.
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.
The constitution is connected to religion being godless. It is a substitute for Gods law of loving whoever as yourself working out your own salvation.
@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.
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.
@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.
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.
Gene H:
that was well said.
the post at 11:44 am
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….
Religious people are the ones who wanted to shame mock Jesus. Jesus shames no one. Therefore the mocker needs to do one thing, and one thing only, and that is repent.
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.
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?
@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.