Police Blotter is a regular CNET News report on the intersection of technology and the law.
What: A self-described girl lover with no criminal record is ordered to cease posting images of young girls on a Web site, even if the photographs were taken in public places.
When: California appeals court rules on January 15, 2009.
Outcome: Restraining order stays intact.
What happened, according to court documents and other sources:
Jack McClellan enjoys the dubious distinction of being the Internet's most famous pedophile. The self-described connoisseur of prepubescent girls promoted his Web site as the "premier site of the girl-love revolution" and claimed it was both therapy for himself and an encouragement for other girl-lovers to exit the closet. It has been featured in The New York Times and on NPR, CNN, and CBS News.
His now-defunct Stegl.info rated public events and locations, including swimming pools and fast-food restaurants, based on how likely they are to feature girls between 3 and 11 years old. An October 2007 version of McClellan's site captured by Archive.org awards the Oregon State Fair five hearts and concludes it "provided many hours of GL fun and merits my highest rating." GL stands for girl-lover.
McClelland, who is approximately 46 years old, has never been charged with or convicted of a sex-related crime, and denies ever having sex with a minor. He once told Fox News that "if it was legal and if it was a completely consensual thing, I could see myself taking it all the way to a sexual" level. But generally people can't be jailed for what they might do if given the right opportunity and if the law were different.
What makes this case relevant to Police Blotter is that McClellan would regularly photograph fully clothed girls at public events and post the images on his Web site. His locations of choice included areas such as parks, roller skating rinks, bowling alleys, ice rinks, dance recitals, and shopping centers.
UCLA campus police expelled him after they noticed a camera-toting McClellan near a child development center, according to a 2007 article in The New York Times. A CBS News story from around the same time said McClellan was living out of his Ford Escort near Los Angeles while updating his Web site. The story also noted him stating that he opposes sexual aggression: "I don't think any child should be touched sexually or nonsexually against their will."
Eventually, some parents in the southern California town of Santa Clarita claimed that their daughters started to stay away from public events for fear of being photographed. The parents sued, asking for a preliminary and permanent injunction preventing McClellan from posting not just the images of their daughters on his Web site--but any photographs of minors at all.
A trial judge granted a permanent injunction without hearing testimony from witnesses. The injunction said McClellan must stay more than 10 yards away from any place where children congregate. It also prevented him from, in the words of one court, "recording or publishing any image of any minor child without the parent or guardian's written consent." The order applies anywhere in California.
That language is quite broad, and McClellan argued that it violated his free speech rights under the First Amendment and the California Constitution. He would be barred, for instance, from publishing an archived public domain image of a teenage girl who might now be elderly or deceased. More to the point, perhaps, there is no widely recognized icky-pedophile exception to the First Amendment.
McClellan seems to have represented himself during some portions of the proceedings, arguing that the injunction unreasonably targeted his political speech, but he neglected to pursue some of the arguments a media attorney would probably have raised.
Eugene Volokh, who teaches First Amendment law at UCLA, wrote about the restraining order when it was issued. His conclusion: "You can't restrict people's movement, and their ability to take photographs in public places (even of children, something that is routinely done by the media and others and that is presumptively protected by the First Amendment), simply because of their ideology and expressed sexual desire, even when one understandably worries that at some point this ideology plus desire will turn into actual molestation. The premise of our legal system is that restraints...can only be instituted after some showing of concrete evidence that someone has committed or is planning to commit a crime."
A three-judge panel California's Court of Appeal, Second District, Division 3, disagreed. The judges unanimously affirmed the restraining order and permanent injunction, saying they "protected the rights of children." The panel also ordered McClellan to pay the parents' legal fees.
As for McClellan, it's unclear where he is now; an October 2007 post on another Web site apparently devoted to so-called girl love said he had moved to Portland and liked the "overall vibe here better than L.A. and Seattle." Meanwhile, his legacy in California includes not only this month's appellate ruling but also a law that he can claim credit for inspiring. Bill AB 534, which became law in September, says it is a crime to publish a photograph of a child "with the intent that another person imminently use the information to commit a crime against a child."
Excerpts from the opinion of California's California's Court of Appeal, Second District:
Publications, even if true, may constitute an invasion of privacy if they are presented in a lurid or indecent manner. Even if photographs are accurate and taken in public places, there can be a cause of action for invasion of privacy when they are exploitative...
For example, in Gill v. Curtis Publishing Co., a happily married couple was photographed in an affectionate pose when they were at their place of business. A magazine used the photograph in an article on different types of love as an example of mere sexual attraction. The California Supreme Court examined the context in which the article was used. The Court held that even though the couple had been in a public place when the photograph was taken, the plaintiffs had stated a cause of action because the use of the photograph could be actionable as an invasion of privacy...
McClellan states that his activities are not illegal. For example, he states that attending public events is not illegal, publishing photographs is permissible, and engaging in public advocacy for those attracted to prepubescent girls is legal. McClellan misses the point.
McClellan is not prohibited from espousing his controversial views. Rather, he is prohibited from his continuing course of conduct to harass, attack, assault, stalk, and keep under surveillance minor children, as to do so places the children in danger and is threatening to them. McClellan is not prohibited from attending public events, but rather only prohibited from being within 10 yards of any place where children congregate. He is prohibited from tracking young girls by obtaining their addresses or locations so he can post their photographs on his website and he is precluded from recording or publishing any image of any minor child without the parent or guardian's written consent. The prohibited activities are offensive to persons of ordinary sensibilities and threatening. The photographs he posts are not part of a discussion of newsworthy events...
He also presents the children in a false light because the photographs portray the children as being available to pedophiles. The voyeur and stalking nature of McClellan's activities, and his attendance at functions where children congregate, in conjunction with his use of photographs of small children is offensive, frightening, menancing, and not protected by McClellan's free speech or assembly rights. Although McClellan states that he is being punished for his thoughts and the hostile reaction to them, he ignores the response to the victims of his actions who fear for their safety.
Further, the protective order did not preclude McClellan from associating with other persons who share his beliefs or with other pedophiles. He is not prevented from discussing his beliefs with others or expressing those beliefs...The restraining order and judgment of permanent injunction are affirmed.