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
Jonathan Hughes:
“Jesus shames no one.”
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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.
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.
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.
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?
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.
“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.
Gene,
Surefire jail time and (hopefully) a lesson learned, versus the expense and uncertainty of a trial. Juries are unpredictable.
Gene H:
“Are you trying to say this moron was trying to pick a fight with this kid?”
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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.
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.
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.
Gene H:
“Did the child suffer any actual harm and is this punishment equitable are questions that go straight to the issue.”
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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?
@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?
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.
Isn’t there a difference between political speech and child abuse? I think so. Political speech should be protected at all costs.
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.
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”.
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.
@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.
The above answers apply to ST as well.
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.