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 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.
@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.
tony c:
Gene H is right about this subject. Your JJ Rousseau is showing on this issue.
@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.
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.
“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.
@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.
@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.”
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.
Bron,
I’ll look into it, but I’m probably not writing a column until tomorrow.
Gene H:
could you or mespo write an article about this?
http://www.citypaper.net/cover_story/2012-11-29-civil-asset-forfeiture.html?page=1&c=y
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.
@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.
@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.
“This defendant should have lawyered up instead of taking a plea and waiving his rights.” (Saintsman)
He had a very good lawyer
SwM,
Yet another fact about the Free Speech Poster Man, Bailey:
“In June, Bailey was convicted of aggravated menacing in an unrelated matter and served 10 days in jail, Stark County court records show.”
http://www.cantonrep.com/news/x493674090/Man-accused-of-bullying-disabled-girl-faces-criminal-charges
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.
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
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.