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
“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.
@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.
“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.
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.
@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.
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.
@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.
@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.
@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.
“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.
“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.
“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.
@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.
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”.
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?
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?
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.
PS … You’re right … I’m not a big fan of studio music
Or perhaps I am dealing with assumption arguendo … 😉
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.