Obama v. pro-pedophile site

[Malla Pollack]

It might be civily actionable under the "false light" doctrine-if that
doctrine survives current Supreme Court views on libel.  The class example
of "false light" is printing a local hero's picture on a newspaper page in a
way that allows careless readers to believe it goes with an article about a
bank robber.

 

Malla Pollack

Professor, American Justice School of Law

mpollack at ajsl.us

270-744-3300 x 28

articles http://works.bepress.com/malla_pollack/

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, March 06, 2007 11:22 AM
To: conlawprof at lists.ucla.edu
Subject: FW: Obama v. pro-pedophile site

 

Any thoughts on this item, as described by
<http://sexcrimes.typepad.com/sex_crimes/2007/03/obama_v_pedophi.html>
http://sexcrimes.typepad.com/sex_crimes/2007/03/obama_v_pedophi.html?  The
Obama daughters' pictures have been removed, but the legal question remains
interesting.  I should say that use of children's pictures this way is
morally reprehensible, and not just because the site is pro-pedophile; but I
don't quite see how it's constitutionally unprotected (except, oddly enough,
to the extent it infringes the copyright in the pictures, if it's not fair
use).

 

Eugene

 

This is just too strange to explain, so I'll let the
<http://www.thesmokinggun.com/archive/years/2007/0304071obama1.html>
Smoking Gun do it:

Senator Barack Obama is threatening legal action against a self-described
pedophile who has posted photos of the Democratic politician's young
daughters on a web site that purports to handicap the 2008 presidential
campaign by evaluating the "cuteness" of underage daughters and
granddaughters of White House aspirants. In a February 26 letter to the web
site's operator, an Obama lawyer demanded the removal of a photo of the
Illinois senator's two daughters, noting that the image's inclusion on a
site advocating pedophilia "is not simply defamatory, but is a criminal
act." Robert Bauer, general counsel for Obama for America, also demanded
that references to Obama and his family be scrubbed from the site and that a
link to the candidate's web site also be removed.

There are several odd things in that paragraph, but legally two points stick
out.  First, there is Obama's claim that the posting of the images "is a
criminal act."  While this may simply be exaggeration for purposes of the
civil suit, I wonder what criminal statute that Obama thinks has been
violated.  The letter (on the Smoking Gun site) seems to allude to some
conspiracy or inchoate type crime, but it isn't specified.  Apparently the
web site for these pictures openly advocates pedophilia.  While such a site
is most likely protected by the First Amendment (without knowing the exact
details, I couldn't say with any certainty), it is possible that the
language used could rise to an inchoate crime.  However, that seems
unlikely.  The website sounds like it is in absolutely horrible taste and
wrong on so many levels, but it doesn't strike me, based upon the
descriptions in the letter, as something inherently criminal.

Second, I'm not really sure how the mere inclusion of a picture of the kids
can be defamatory.  Perhaps there is more to it than described in the
letter.  This isn't an area of law in which I have any expertise, so I would
have to defer to someone else on the issue.  I can understand the alleged
copyright claim, but the defamation claim confuses me because I don't know
how the picture of the kids implies an endorsement of the website by Obama.

Either way, this is a bizarre case that seems to illustrate the struggles of
regulating the margins of child pornography under existing free speech
doctrine.

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