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The FBI's Inflitration of NAMBLA:

A fascinating Ninth Circuit opinion upholding a conviction of a would-be child molester (U.S. v. Mayer), a conviction that flowed from an FBI agent's infiltration of the North American Man/Boy Love Association.

The Ninth Circuit rejects, in my view quite rightly, the First and Fourth Amendment challenges to the conviction. One of the ways that the government can fight the harm caused by groups that advocate illegal conduct, whether NAMBLA, the KKK, the Communist Party, or what have you, is precisely by watching the group closely, including from the inside. The groups ought to have the right to speak; but the government is entitled to listen, at least from any vantage that any private citizen can listen from.

I should note, incidentally, that this is not simply a "the government is watching our association" case. The agent not only infiltrated NAMBLA, but also (1) "published an article in the [NAMBLA] Bulletin and wrote a policy statement for NAMBLA's privacy committee, which he had joined," and (2) "offered to host the [2005] NAMBLA conference, and NAMBLA was unable to reschedule it after he revealed his identity." Nonetheless, neither of these items are reason to throw out the defendant's conviction, as the court correctly held (though it acknowledged that the latter action might be an infringement of the organization's First Amendment rights, and might under the proper factual circumstances justify a lawsuit by the organization).

One tidbit from the defendant, though I acknowledge that it's certainly possible that he was mistaken in his opinion: "Agent Hamer suggested that they form a travel group [for traveling to Thailand to have sex with boys]. [Defendant] Mayer responded with NAMBLA kept up pretenses of trying to change society when in fact its members only wanted to travel to meet boys."

Thanks to Howard Bashman for the pointer.

logicnazi (mail) (www):
I tend to agree about the suppression issue. However, I'm somewhat troubled by the specter of entrapment in a case like this. I mean suppose the government approached a private citizen and proceeded to tell them how great drugs were to try before leading them to a government website appearing to offer cheap drugs.

While I think the standard that it's not entrapment if the defendant was inclined to commit this sort of crime isn't a good one I worry whether even that standard can be accurately applied in cases such as this one. In particular there is going to be a strong tendency to interpret protected first amendment involvement in a group lobbying to legalize some activity with proclivity to engage in that activity. After all it isn't enough to merely show the defendant would be inclined to engage in the behavior if it were legal but that he was inclined to engage in the behavior even though it is illegal.

I suspect in this case they may very well have enough evidence to show it isn't entrapment but I just get queasy when the government sets up lures to criminal activity like fake websites offering sex with boys or supportive conversation from an undercover officer. Especially when it occurs in an area that is unlikely to evoke any sympathy for the defendant.
6.6.2007 8:42pm
Clayton E. Cramer (mail) (www):

I suspect in this case they may very well have enough evidence to show it isn't entrapment but I just get queasy when the government sets up lures to criminal activity like fake websites offering sex with boys or supportive conversation from an undercover officer. Especially when it occurs in an area that is unlikely to evoke any sympathy for the defendant.
Here's a thought: don't join an organization committed to repeal of age of consent laws so that adult men can legally sodomize four year olds.
6.6.2007 8:54pm
Daniel Chapman (mail):
And in this corner... Clayton E. Cramer! LET'S GET READY TO RUMBLE!!! *ding*

[/Michael Buffer]
6.6.2007 9:44pm
triticale (mail) (www):
My father, who dropped out of the Communist Party in the early '50s, claimed that it was dues from the FBI infiltrators which kept the party afloat thru that era.

As for entrapment, I've seen reports on some of the drug forums that the DEA is using EBay to sell chambers suitable for growing marijuana and then raiding the homes of the people who buy them. I hope the person who buys one to grow orchids or habenero peppers has a good attack lawyer.
6.6.2007 10:11pm
Jamie (mail):
If I'm not mistaken, NAMBLA supports having sex with boys 8 and older. Which is still quite obviously wrong, but talking about sodomizing four-year-olds is intellectually dishonest.

I don't think it's wrong for the government to have internal surveillance on criminal organizations, but I don't like the idea of any law enforcement official encouraging law breaking to achieve an arrest is unethical. They may well commit a crime, but our government shouldn't be soliciting violations.

Child molestation is abhorrent, but we often let our disgust override our logic and have a purely emotional reaction. It's easy to support throwing the book at pedophiles, and I'm not saying we shouldn't, but every case is nuanced (there's a big difference between an eight-year-old and a teenager).

I'm curious, Mr. Volokh, what you think about the FBI's previous infiltration of the Black Panther Party, which led to the death of Fred Hampton? As someone who is often leery of governmental involvement, when do you think a line is crossed when it comes to infiltration of domestic organizations?
6.6.2007 11:02pm
Richard Aubrey (mail):
Daniel. Nice story. But it was also said that the CPUSA was one end of the world's longest bridge--supported by cables from Moscow.
Gus Hall got pretty rich off the dues. Or the cables. Kept his bad grammar and plaid shirt, though. Did pretty well for a former leg-breaker.
6.6.2007 11:04pm
Richard Aubrey (mail):
Cramer.

You're all about repression, maaan.
6.6.2007 11:04pm
zforce (mail):
Hold on.. NAMBLA is a real organization and not just a fiction from South Park? No way. Next I'm going to learn there is also really a National Association of Marlon Brando Look-Alikes.
6.7.2007 12:00am
Hyde Parker (mail):
I'm seriously creeped out by the fact that someone in my neighborhood--close, but not that close to my apartment--has the wireless network named "NAMBLA." Every so often, when conditions are such that I pick up the further away signals, it's on the list.
6.7.2007 12:16am
Kazinski:

When they came for NAMBLA,
I remained silent
I was not a pervert.
6.7.2007 12:20am
Malvolio:
Here's a thought: don't join an organization committed to repeal of age of consent laws so that adult men can legally sodomize four year olds.
So if guns were outlawed, Cramer would be okay with the government's putting NRA members in jail? Lots of people find the NRA almost as repugnant as NAMBLA.
If I'm not mistaken, NAMBLA supports having sex with boys 8 and older. Which is still quite obviously wrong, but talking about sodomizing four-year-olds is intellectually dishonest.
I don't know about "mistaken", but Jamie is certainly making a pretty fine distinction. There's a huge difference between sleeping with a 14-year-old girl and sleeping with an 18-year-old woman, but between raping a 4-year-old and an 8-year-old? Either way, I would say: feed them into Saddam Hussein's plastic-shredder. And I am reassured that Cramer is not perfectly conversant with the details of NAMBLA's policy papers.
6.7.2007 1:07am
Henri Le Compte (mail):
This was humorous in a pathetic sort of way:

"The agent... offered to host the [2005] NAMBLA conference, and NAMBLA was unable to reschedule it after he revealed his identity."

It sounds like they were going to meet over at his house, and when he turned out to be FBI, well, they had nowhere else to go. The other guy's mother wouldn't let them this year.
6.7.2007 1:07am
Brian G (mail) (www):
The ACLU must be sick over this decision.
6.7.2007 1:14am
Thorley Winston (mail) (www):
Lots of people find the NRA almost as repugnant as NAMBLA.


Name them.
6.7.2007 1:56am
Thorley Winston (mail) (www):
The ACLU must be sick over this decision.


Don't be so sure, if they find out that one of these sickos ever set foot in a church they'll tout it as a "see the ACLU defended the civil rights of Christians!"

(I'm half-kidding)
6.7.2007 1:59am
Kazinski:
Mavolio:

Lots of people find the NRA almost as repugnant as NAMBLA.

Exactly. That statement says much more those "lots of people" than it says about the NRA.
6.7.2007 2:09am
JB:
Hyde Parker: If you live in the Chicago neighborhood in your name, there are lots of strange wireless network names around here. I've seen "Donkeypuncher."

I'm also disturbed to hear that Nambla sets its age target at 8. I mean, the whole organization is fracking creepy, but I could understand an organization devoted to rolling back the age of consent to, you know, puberty.

However, just like it is only unpopular speech that truly requires first amendment protection, it is only unpopular groups that truly require protection against dirty government tactics. I also find it hard to believe that the FBI agent could not have taken on a persona that involved less planning, waited for a real Nambla member to organize an underage-sodomy trip, seen who signed up, and arrested them then.
6.7.2007 9:26am
David Chesler (mail) (www):
My high school homeroom teacher was fired because he was an officer in NAMBLA. Unlike some teachers who made no secret that they saw the older girls, or in some cases boys, as potential (or actual) bed-partners, he never acted improperly in school. After years of investigation nothing could be pinned on him, but the Board of Education said "Sorry, we don't have a spine, so there is a heckler's veto."

As Miss America said in Bananas, "In America, it's OK to be different, as long as we're not too different, because then we become a subversive motherfucker."

As soon as my children are old enough that I can more safely tell DSS to stick it (one week after I blogged about them my family was under "assessment") I'm going to go public with my campaign to lower the age of consent for heterosexual girls from 18 to 17.5.
6.7.2007 9:52am
ejo:
Sorry, if you're an office in a child molestation advocacy group, you don't get to be around children. The fact that years of investigation were needed before the molester was fired does show a lack of spine-it should have been immediate.
6.7.2007 10:36am
Mr. X (www):
The opinion is weakest when it addresses the "outrageous misconduct" standard. Creating a fake website and steering people to it seems a lot like entrapment to me. I think the court was fudging the analysis here due to the nature of the defendant.
6.7.2007 10:55am
David Chesler (mail) (www):
There is no indication that this individual is a molester. (If there were, they'd have done a lot more than fire him.)
He is still allowed around children; he's just no longer teaching for the NYC Bd of Ed.

What other thoughts make one ineligible to teach?

I figure if NAMBLA were as bad as is claimed, after all these years the FBI would have more on them than that they had a picture of a tow-headed boy from a 1967 calendar that bore a striking resemblance to a boy who disappeared ten years later, or that two child-murderers had some of their literature.
6.7.2007 11:12am
OK Lawyer:
Entrapment has always sounded like b/s to me. The example about the government agent enticing someone with great drugs at low, low prices, should somehow exonerate the guy buying the illegal products is silly. Here is a simple tip folks - don't do things you know are illegal. I understand "ignorance of the law is no defense." But we are not talking about some obscure regulation, this is sex with young boys.

I think it is a lie to say NAMBLA is simply an advocacy group. It is a lie just the same as telling yourself that the TSA moron who rifles through my bag at security is making me any safer. It is a little lie that we tell ourselves, so we can sleep better. Because, if we don't tell ourselves those little lies, we have to accept that their are really nasty, evil people out there who want to harm me and my family. Some people are not ready for that.
6.7.2007 11:19am
Adeez (mail):
David Chesler: you wouldn't happen to be a proud alumnus of the Bronx HS of Science, wouldya?
6.7.2007 11:33am
ejo:
yes, I can certainly see why one would advocate for child molestation but not actually want to molest children-thinking hard, hard-I guess I can't see the reason. I am sure the "teacher" has managed to take a few trips over the years to places where 8 year olds(not under 8 as these molesters have standars) are bought and sold like pina coladas to the tourists. I pity the children of a parent who finds this organization and the behavior it advocates appropriate.
6.7.2007 11:51am
ejo:
members of NAMBLA have been convicted of doing exactly what the organization advocates-molest children. It does attract law enforcement attention, as any organization advocating such criminal behavior should and as it deserved in this case. I hope if one formed an organization advocating the murder of people, it would attract law enforcement attention-I would also assume the murder advocacy group is as bad as claimed given what they are advocating.
6.7.2007 11:57am
Houston Lawyer:
Kazinski:

I'm still laughing.

When it comes to groups like NAMBLA and criminal gangs, I think the Supreme Court was wrong to hold that the the first amendment prevents us from prosecuting members based upon such membership.
6.7.2007 12:06pm
Steve:
Unlike some teachers who made no secret that they saw the older girls, or in some cases boys, as potential (or actual) bed-partners, he never acted improperly in school.

I think Mr. Chesler has a point here. As a parent, while it creeps me out to think of a teacher viewing my underage son as a sex object, I'm not any more tolerant if it's my underage daughter instead. (If anything, to be honest, I feel more protective regarding my daughter.)

Yet if a male teacher admits he has feelings for male students, we must get him out of the school community with all deliberate speed, while a male teacher who admits the same feelings towards his underage female students is just being human and we have to live with his libido. I understand the revulsion towards homosexuality, but we're talking about kids here, not adults. The act in question is child molestation either way.

Am I wrong to think something's amiss here? If you're unlucky enough to be the parent of a hot daughter, do you really not care if her male teachers have sexual feelings for her? I thought the age of consent actually reflected some sort of societal norm.
6.7.2007 12:09pm
ejo:
what school system do you live in where male teachers admit they are sexually attracted to their female students and everyone is fine with it. I doubt for the most part anyone would be fine and "we have to live with his libido" would be the standard used. By the way, in the PC world, are you equating homosexuality with child molestation. I thought that was a no no (despite the fact the NAMBLA brigades proudly march in the gay pride parades).
6.7.2007 12:40pm
Steve:
what school system do you live in where male teachers admit they are sexually attracted to their female students and everyone is fine with it.

The one described by David Chesler, where teachers "made no secret" that they'd like to have sex with the attractive girls.

By the way, in the PC world, are you equating homosexuality with child molestation.

Can you read? Here is what I said: "I understand the revulsion towards homosexuality, but we're talking about kids here, not adults. The act in question is child molestation either way."
6.7.2007 12:45pm
ejo:
ah, the anecdotal school where male teachers walked around hitting on the girls and sleeping with them without repercussion but the poor homosexual advocate of child molestation was canned. sorry, I went to public schools my whole life and never saw it and, as a parent, I know it wouldn't be tolerated. as to reading you, you are pretty clear-you equate homosexuality with child molestation and imply that heterosexual molestation of students would be approved conduct while the former is taboo-you are wrong and not quite as difficult to read as you apparently think you are.
6.7.2007 12:53pm
Steve:
Well, if you're going to make up my arguments for me, I guess I have no chance, so I'm forced to concede.
6.7.2007 1:08pm
Andyman (mail):
There were at least two teachers known to have sex with alumni as soon as they graduated from my public high school, at least one teacher that was fired for having sex with a student, and at least one teacher who had very obvious crushes on students and would act in a way that this was apparent to people in the class.

These were all heterosexual, by the way. It wasn't a big deal among the student population that male teachers saw the female students as sexual beings. I have no idea how aware parents were that this was going on, but I think they were mostly out of the loop.

I'm not sure how any homosexual romance or attraction would have gone over.
6.7.2007 2:18pm
Joseph Power:
As one of the people mentioned in the decision, I thought it might be helpful to have our perspective on the case. (For the record, IANAL and my comments here are my own opinions.)

First, NAMBLA's opposition to age of consent laws derives from our view that such laws represent a fundamental misunderstanding of sexuality in general and an animosity towards gay sex in particular. Wishing to replace laws which simply ignore the desires of young people with ones that protect them AND GIVE THEM A VOICE in the proceedings seems at least worthy of discussion.

I think the court should have given greater weight to the entrapment defence. NAMBLA has never organized trips in or out of the country. The fact that agent Hamer was a member for several years and had to create such a trip himself is rather strong evidence of this.

It is also a fact that the FBI and other LEOs have repeatedly infiltrated NAMBLA and have tried before to disrupt the organization (see the book A Witchhunt Foiled for details of one such attempt) yet never once brought charges against us. Because of this case we ceased to have General Membership Confrences - no matter what warnings we gave and what precautions we took, the cops used these confrences to prey upon people's extreme isolation. How did this not deprive people of their right to associate?

(The court's recommendation that NAMBLA file a complaint is unlikely to work for the same reason it was dropped from the Curley suit - as an unincorporated organization it doesn't legally exist.)

As a convenient demon we've been misrepresented, silenced, infiltrated and used to nibble away at people's rights. It doesn't, however, make it right.
6.7.2007 3:28pm
john w. (mail):
Where exactly does the Constitution authorize the *Federal* government to regulate people's sex lives??? (Regardless of how repugnant the activity may or may not seem to the rest of us)

So much for "Limited Powers" !!
6.7.2007 4:49pm
David Chesler (mail) (www):
members of NAMBLA have been convicted of doing exactly what the organization advocates-molest children.

No doubt there have been NORML members busted for pot possession, and NORML members who have traveled to Amsterdam to go to coffeehouses -- but one can generally get away with saying drug laws need to be reformed.

As far as I'm concerned, this has nothing to do with whether I disagree, agree, or advocate for some or all of the changes that NAMBLA does; it is about crossing the line into prosecuting for thoughts.

EJO, to be fair I finished high school in 1979. Our thinking on sexual harassment and hostile environments has changed a lot since then. I don't know if teachers could still get away with putting all the pretty girls up front, or giving higher grades for shorter skirts (or even talking about it) or some of the behavior I saw outside of closed doors, especially on field trips. On the other hand, high school (and younger) girls are dressing a lot more sexualized than they were 30 years ago.
6.7.2007 4:50pm
Sebastian (mail) (www):
I wonder what poor Agent Hamer did to land that assignment. I would imagine having to go undercover as a child molester has to be the bottom of the barrel at the FBI:

"Hamer, Jones over there is going to head undercover keep an eye on Animal Liberation Front. Cruz, he's going to infiltrate a dangerous Al-Qaeda cell. For you, we need you to infiltrate NAMBLA and pretend that you like to bugger young boys. It's a tough assignment, but we think you're up to it!"

And Jones and Cruz would giggle that Hamer got stuck with having to be the child molester. I would imagine explaining it to the family would be tough too.
6.7.2007 5:12pm
Jerry F:
It seems to me that the FBI's politically correct focus on a fringe organization is very unproductive and puts our children at risk. How could it not be far more effective for the FBI to infiltrate more mainstream homosexual organizations such as GLAAD and LAMBDA (or whatever other organizations do parades or run the magazines and websites, I'm not sure what they are) and attempt to "entrap" members into engaging in illegal conduct with children? For one thing, mainstream organizations have far more members and give much better opportunities to get sub-groups together. Further, members of more mainstream organizations would be far less suspicious (at least initially) of government infiltration. Considering how small NAMBLA is and the fact that child molestation is a serious problem that implicates far more people than NAMBLA's members, the FBI's focus here seems overly narrow.
6.7.2007 6:15pm
Some Guy (mail):
Jerry F.,

Your troll-fu is weak. Seriously.
6.8.2007 2:06pm