Criminal harassment laws, speech, and the "no useful purpose"proviso; witch hunts; rationality and criminal law

Wed Aug 8 06:19:10 PDT 2007

I suspect there may be more to the underlying sex crime prosecution in this case than meets the eye.  Why would a juvenile prosecutor ever prosecute a case on these facts?  (Cf. Michael M. v. Superior Court, where Blackmun's concurring opinion suggests physical violence preceded a "consensual" encounter between a 17 year old boy and a 16 year old girl; the girl had testified that the boy, who was the one prosecuted, had punched her after she had initially refused to have sex.)

If I'm right, publicizing this man's presence in the community may be more sensible than it seems.

---- Original message ----
>Date: Wed, 8 Aug 2007 08:47:23 -0400
>From: "michael curtis" <curtism at bellsouth.net>  
>Subject: Re: Criminal harassment laws, speech, and the "no useful purpose"proviso; witch hunts; rationality and criminal law  
>To: "Rosenthal, Lawrence" <rosentha at chapman.edu>,"Volokh, Eugene" <VOLOKH at law.ucla.edu>,<CONLAWPROF at lists.ucla.edu>
>
>Lawrence Rosenthal has changed the facts in one respect.  This was not a 
>request or demand from the boy as the facts are given to us.  It was an 
>invitation initiated by the girl.
>
>I agree that Lawrence v. Texas  is about consenting adults.  Children 
>presumably have no privacy right to have sex.  What strikes me as irrational 
>here is the decision to categorize a sixteen year old boy as a sex offender 
>and to most a sexaul predator based on a voluntary sexual encounter with a 
>girl of nearly the same age when the event was initiated by the girl.  I 
>don't know how many sixteen year old boys would just say no to such an 
>invitation from an attractive  15 year old girl.  At any rate, what is crazy 
>is on these facts to assume that the boy is a life time or long term risk as 
>an adult likely to molest children.  This is insane.  The law sometimes 
>tolerates and imposes a fair amount of insane brutality.  Insane brutality 
>is what is going on here.
>
>Can Eugene give us a cite to the case or does it not have one?  Why was the 
>boy a sex offender--because the girl was 15 or because it was oral sex.  In 
>NC if the kids are within three years of each other in age & the act is 
>voluntary , it is typically not a crime (whatever the sex act)--under the 
>kids having sex with kids statutes.  But if it is oral sex they can be 
>changed under the general crime against nature statute according to our 
>appellate courts.  If that is what made the child here into a sex offender, 
>then it is irrationality squared.
>
>Michael Curtis
>----- Original Message ----- 
>From: "Rosenthal, Lawrence" <rosentha at chapman.edu>
>To: "michael curtis" <curtism at bellsouth.net>; "Volokh, Eugene" 
><VOLOKH at law.ucla.edu>; <CONLAWPROF at lists.ucla.edu>
>Sent: Tuesday, August 07, 2007 10:22 PM
>Subject: RE: Criminal harassment laws, speech, and the "no useful 
>purpose"proviso; witch hunts; rationality and criminal law
>
>
>I too am not sure of the right answer to the First Amendment question.  What 
>does seems clear to me is that the First Amendment protects the right to 
>publicize information obtained from public records, in this case, the sex 
>offender registry.  E.g. Cox Broadcasting v. Cohn (a case involving the 
>press, I know, but the Court keeps telling us that the press has no greater 
>rights than the public).  The question then becomes whether one can lose 
>First Amendment protection under this line of cases because of an improper 
>motive for publicizing the information.  We know from Wisconsin v. Mitchell 
>that motive is not itself protected by the First Amendment, and that 
>legislative determinations about the need to punish and deter based on 
>motive are reviewed deferentially.  The Wisconsin statute also seems 
>generally applicable and content and viewpoint neutral to me because it 
>turns on motive rather than any identifiable content or viewpoint (Allen 
>could violate the statute as readily as his neighbors), and Mitchell again 
>treats illicit motive as content and viewpoint neutral.  Still, Mitchell was 
>considering only unprotected conduct (enhanced punishment for hate crimes), 
>rather than the question whether otherwise protected speech can lose its 
>protection based on motive.  Although Hustler v. Falwell is not quite on 
>point because that case turns in part on the need to protect parody as a 
>form of expression, my guess is that Hustler would carry the day against the 
>Wisconsin statute as applied to the distribution of public records such as 
>these -- when constitutional protection for statements of fact made without 
>malice in the New York Times v. Sullivan sense is lost solely because of the 
>defendant's motive, there is an unacceptable chilling effect on protected 
>speech.  Still, I have some trouble reconciling such a broad reading of 
>Hustler with cases like Dennis, which suggest that an improper objective 
>(driving Allen out of town?) and speaking a part of a course of conduct 
>reasonably calculated to achieve that objective leaves such speech 
>unprotected.  As Professor Volokh's own work demonstrates, this is a 
>difficult area of the law.
>
>I have less trouble with a Lawrence defense to a charge of statutory rape. 
>Lawrence involved the rights of consenting adults.  Nothing I can see in 
>Lawrence suggests that the state must presume that a 15 year old girl is 
>capable of giving valid consent to a request (or was it, at least to 15 year 
>old ears, a demand?) for oral sex.
>
>Larry Rosenthal
>Chapman University School of Law
>------------------------------ 
>
>________________________________
>
>From: conlawprof-bounces at lists.ucla.edu on behalf of michael curtis
>Sent: Tue 8/7/2007 6:05 PM
>To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
>Subject: Re: Criminal harassment laws, speech, and the "no useful 
>purpose"proviso; witch hunts; rationality and criminal law
>
>
>
>I am not sure of the answer to Eugene's first amendment question. Here we
>have a 16 year old boy who agrees to the proposal from a fifteen year old
>girl that she perform oral sex on him.  Making this boy into a "sex
>offender" who must be registered and stigmatized for the rest of his life is
>awful.   Without more, there is simply no reason to think this kid will be
>inclined (for the rest of his life) to prey on children.   These two
>children were within about a year of the same age.  To treat this adolescent
>event as somehow comparable to an adult who sexually molests a young child
>is horrible.  And now at age 25 this young man is hounded and stigmatized by
>a group of neighbors although he has fully complied with all the
>restrictions so cruelly imposed on him.  Of course, the neighbors think they
>are protecting children--but, of course,  the people who burned witches
>thought they were protecting children.  This story is revolting.  To me--at
>least as applied to these facts--the  "no legitimate purpose" seems about
>right although the test would be vague and overbroad in many cases.  This
>story is an example of how ill considered over broad pursuit of a worthy
>purpose can lead to cruel, extreme, and unfortunate results.
>
>The following is a comment only on a general proposition, not on how
>rationality might be treated by courts in this case if they decided to use
>it or whether it should be applied here.  In response to Robert Sheridan's
>thoughtful post, note that Lawrence v. Texas did apply a heightened
>rationality approach to criminal law and so I guess did Eisenstadt v. Baird.
>The Kansas Supreme Court used an equal protection rationality approach to
>strike down a harsher punishment for same sex child on child oral  versus
>much lesser punishment for opposite sex oral sex between otherwise similarly
>situated kids.  The California Supreme Court held that imposing life long
>sex offender registration on a twenty some year old  man who had oral sex
>with an  18 year old woman (these ages are from memory) when no registration
>would be required if they had had vaginal sex was so irrational as to
>violated even low level rational basis.  So sometimes courts do use
>rationality review.  And at other times, as in Michael M., a gender
>discrimination that the dissent argued  had no significant advantage over a
>gender neutral law is upheld.
>
>Hyper active courts can be a serious problem.  So can courts that are
>inclined to ignore blatant injustices and invasions of liberty.  Cases like
>this make me wonder whether a pinch of rationality now and then might not be
>a good idea.  I am not sure how it would or should work here.
>
>Michael Curtis
>
>
>
>----- Original Message -----
>From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
>To: <CONLAWPROF at lists.ucla.edu>
>Sent: Tuesday, August 07, 2007 4:37 PM
>Subject: Criminal harassment laws, speech, and the "no useful purpose"
>proviso
>
>
>> I was hoping I might have list members' thoughts on this
>> question, which I've seen raised in various cases.
>>
>> Some state laws ban "criminal harassment," including behavior
>> defined more or less as "Engag[ing] in a course of conduct [= a pattern
>> of conduct composed of a series of acts over a period of time, however
>> short, evidencing a continuity of purpose] or repeatedly commit[ing]
>> acts which harass or intimidate the person and which serve no legitimate
>> purpose."  The broadest body of caselaw I've seen on this has been in
>> Wisconsin; the statute I just quoted is the Wisconsin one, Wisc. Stat.
>> Ann. 947.013.
>>
>> Naturally, what constitutes "no legitimate purpose" ends up
>> being critical, or else Larry Flynt would be criminally prosecutable in
>> Wisconsin for publishing the material in Hustler v. Falwell (at least if
>> he published it at least twice).  (Recall that "harass" here is not the
>> same as in hostile environment law; presumably it bears its normal
>> English meaning, which would cover Flynt's intentions.)  The statute
>> gives no definitions.
>>
>> In any case, here's a specific instance that tests this:
>> Several Fond du Lac residents live near a convicted sex offender (a
>> Michael A. Allen).  They printed copies of that offender's Wisconsin
>> Department of Corrections Sexual Offender Registry Registrant
>> Information web page, and publicly posted it in various places -- at a
>> gas station, at a YMCA, and several trees and telephone poles.  They
>> were then arrested for harassment.  The arresting officer's report
>> explains that this was "because [their] conduct served no useful
>> purpose.  Michael Allen is following the rules of the registration
>> system and is not breaking any laws.  It appears to be the intent of the
>> suspects to force Michael Allen to move from the area."  (I should also
>> say that Allen's offense strikes me as very minor as sex crimes go --
>> "Court records show that Allen was convicted in 1998 of second-degree
>> sexual assault of a child for receiving oral sex from a 15-year-old
>> girl. The records show that Allen was 16 years of age at the time of the
>> incident, which occurred in 1997 in Shawano County. In a victim
>> statement included with court documents, the 15-year-old girl said it
>> was her idea to perform the sexual act. She also wrote that she didn't
>> think it was Allen's fault or that he should get in trouble."  Should
>> that matter for constitutional purposes?)
>>
>> I take it that defendants believe their conduct does serve a
>> legitimate and useful purpose -- it may inform their neighbors about the
>> possible danger posed by Allen.  Even if they intend to try to get Allen
>> to move, that too may be useful for them and their children, though of
>> course it may lead Allen to move to become a possible threat to other
>> children (again, I don't see him as much of a threat, but obviously they
>> do, and the law does require registration for offenders like Allen).
>>
>> Is the "no legitimate purpose" proviso unconstitutionally vague?
>> Is the statute unconstitutionally content-based, when applied to speech
>> like this that "harasses" because of its content, much as the emotional
>> distress tort, interference with business relations tort, or disturbing
>> the peace law is unconstitutionally content-based when applied to
>> otherwise protected speech because of its content (see Hustler v.
>> Falwell; NAACP v. Claiborne Hardware; Cohen v. California)?  If "no
>> legitimate purpose" is constitutionally permissible when properly
>> interpreted, what is that proper interpretation?
>>
>> The same defendants were also arrested for getting into a fight
>> with the offender over the offender's coming onto their property to
>> remove a copy of the sheet that they had posted on their own property;
>> but that's a separate charge, and I thought we'd set it aside for now.
>>
>> Thanks in advance for any responses,
>>
>> Eugene
>> _______________________________________________
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>
>
>_______________________________________________
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>
>_______________________________________________
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>
>Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University School of Law 
2000 H St., NW 
Washington, DC 20052
(202)994-7053