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
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.
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!
tony c:
I think Blankfein recently did say that on an interview in regard to wealthy people paying more taxes.
@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.
@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?
tony c:
not to change the subject and OT but you might like this TED Talk:
http://www.ted.com/talks/ernesto_sirolli_want_to_help_someone_shut_up_and_listen.html
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.
“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.
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.
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.
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.
@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.
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.
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I bet all three of us could be some very good do-badders … 😉
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.
BTW, I do admire that you’re both well-intentioned do-gooders. Intent counts in more ways than one.
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.
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?
“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.
@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…”
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.