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Restraining Order Issued Against Pedophile Blogger:

A court has just issued a restraining order — with no appearance by the defendant — that, among other things,

(1) bars McClellan from "follow[ing], ... keep[ing] under surveillance, or loiter[ing] with or around any minor child,"

(2) bars McClellan from contacting, "photograph[ing], videotap[ing], post[ing] on internet, or otherwise record[ing] any image of a minor child without parent's or guardian's written consent,"

(3) bars McClellan from "loiter[ing] where minor children congregate in, including but not limited to schools, parks, playgrounds, bowling alleys," and

(4) requires McClellan to "stay at least ... 10 yards away from" "any minor child."

The court reports that the order is "based on stalking" and "based on a credible threat of violence and harm to minor children." The order is ambiguous on whether McClellan is also barred from having guns — those provisions on the order form are crossed out in one place but not in another; I take it the court's intent was not to apply them at all.

I don't know what evidence was introduced at the hearing, so it's possible that there was some evidence that McClellan had actually molested children, or was planning to do so. If there was, and the evidence was sufficiently strong, then a temporary order of some sort would be constitutional — a person can, after all, be arrested and jailed just on a finding of probable cause to believe he has committed a crime.

But if the only evidence is what we've seen in the press, which is chiefly that McClellan admits to a sexual attraction to children, believes that sex with children is proper, claims not to have molested children or engaged in sexual touching with them but has apparently said he had "hugged" them, and has in the past photographed children and posted their photos on the Internet with text praising their appeal and promoting the propriety of sex with children, then it seems to me that the order is unconstitutional.

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 on where you can go on in public (and broader freedom, including the freedom to photograph and to post photographs) can only be instituted after some showing of concrete evidence that someone has committed or is planning to commit a crime. The police can't arrest people just because they think they might be dangerous, or because they have expressed support for criminal activity; the courts can't restrict their liberty of movement on those grounds. The controversy about no-fly lists that are based on mere suspicion illustrates this concern, and the outer boundaries of even national security powers; but even the no-fly lists don't go so far as to make it a crime for someone to go to certain places, or be within 10 yards of any child.

Without doubt this general prohibition on prophylactic police and court action poses some dangers. I suspect there are lots of people out there whom the local police understandably suspect of some crime, and who may in fact victimize someone before a crime can be proven. But it seems to me that on balance waiting until there's concrete evidence that a crime has been committed, or is at least being planned — dangerous as such waiting may be — is less dangerous than letting courts restrain movement simply based on people's even repugnant ideologies and desires.

Related Posts (on one page):

  1. Restraining Order Issued Against Pedophile Blogger:
  2. More on the Pedophile Blogger:
  3. The Pedophile Blogger:
scote (mail):

stay[ing] at least ... 10 yards away from" "any minor child,"

This restriction essentially makes it illegal for him to go to any public place since there are bound to be children and he has a legal duty to retreat. He effectively can no longer travel anywhere by public transportation or fly. About the only place he can legally go is a bar and only if he doesn't take a bus, ferry, cable care, trolly, train or walk on the public streets to get there.

As reprehensible as this man's views are, the restraining order seems ridiculous. If he has committed a crime or stated an intent to do so he should be prosecuted but the restraining order is ridiculous.
8.3.2007 3:18pm
KJ (mail):
The police can't arrest people just because they think they might be dangerous, or because they have expressed support for criminal activity; the courts can't restrict their liberty of movement on those grounds.



Isn't a restraining order a court imposed restriction on liberty based on the assumption that someone might be dangerous?
8.3.2007 3:42pm
texas lawyer (mail):
It's hard to win if you don't show up. By not showing up (assuming it wasn't issued ex parte &he received proper notice), he may have waived his argument that the evidence was insufficient.

I'm not sure of the California rules, but in Texas, if there is no record made of the hearing, the presumption is that evidence sufficient to support the order was presented.

Of course, this may just be a temporary restraining order effective for a couple of weeks. Those are ordinarily not appealable. If that is the case, then there will be a full-blown temporary-injunction hearing where more detailed evidence would be presented. That is normally interlocutorily appealable.
8.3.2007 3:42pm
TerrencePhilip:
LaTimes story here. The plaintiffs only asked for the injunction in Santa Clarita, where they were from, b/c he had said he liked going there. The judge issued the injunction STATEWIDE.

One the plaintiffs was an attorney and filed the pleadings and argued. Here are choice quotes from the article:


Outside the courthouse an emotional Zinnanti exclaimed: "Victory!"

Patterson then said that Barry Bonds' push to break baseball's home-run record "is going to pale in comparison to the effect this ruling has on the state of California."

Before it goes into effect, McClellan must be served with the order.

Zinnanti said, as he left the court, that he planned to serve him. "I'm going to go home and change my clothes and get in my jeans and go look for him. I'm not going to do anything crazy, I'm going to effect service."


Emotional speeches; Barry Bonds comparisons; a lawyer bragging about changing clothes to go effect service of an absurd order, which goes even beyond what he had asked for and in parts contradicts itself (i.e. the weapons thing). I guess we're lucky the order didn't deputize a mob to apprehend the (disgusting) respondent.

I love Fridays . . .
8.3.2007 3:44pm
tmittz:
Are judges (this one in particular) elected or appointed in California? If he's elected, I can see exactly why this order was issued - what judge wants to have to explain to the electorate why he didn't act against a pedophile just because of some silly constitutional right?
8.3.2007 4:11pm
TerrencePhilip:
tmittz, even life-tenured judges have made decisions that seem craven and designed to draw praise to themselves (William O. Douglas is a prime example). I don't know a satisfactory way to eliminate that problem.
8.3.2007 4:37pm
EH:
I'm no lawyer, but how is the Plaintiff going to "effect service" of the restraining order when he's a party to the case?
8.3.2007 5:35pm
Kazinski:
Should this constitutionaly protected activity be out of bounds for a judge to consider in a custody hearing?
8.3.2007 5:50pm
Just Dropping By (mail):
I'm no lawyer, but how is the Plaintiff going to "effect service" of the restraining order when he's a party to the case?

If we're repealing the Bill of Rights on an ad hoc basis, why not the Rules of Civil Procedure too?
8.3.2007 6:01pm
David Chesler (mail) (www):
I'd guess most of us straight men should get restraining orders prohibiting us from being within 10 yards of women.
8.3.2007 6:43pm
Dr. Weevil (mail) (www):
EV:
Your first sentence needs a rewrite, and not just for all the awkward "[ing]"s. As written, it says that the judge's order bars this guy from staying at least 10 yards away from children. That can't be right, though I imagine the perv would like to be ordered always to keep one or more children within 10 yards.
8.3.2007 6:54pm
Toren (mail):
I look forward to this forward-looking legal rationale of presumptive harm to be applied to every single gang member in California, or preferably, the United States.
8.3.2007 7:50pm
George Weiss (mail):
great question by kazinski
8.3.2007 8:43pm
Roger Schlafly (www):
Isn't a restraining order a court imposed restriction on liberty based on the assumption that someone might be dangerous?
Often it is based on a proved pattern of harassment, without any threat of danger.
8.3.2007 8:54pm
neurodoc:
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)...EV
Don't I have rights to my own image, so that if someone takesmy picture without my permission, they are limited in what use they can make of it, especially if I am not a celebrity or otherwise newsworthy? Beyond the property rights issue, aren't there privacy ones too? I don't know the exact outlines of such limits, so I am asking.

Surely, one is not free to take the picture of an attractive young woman at the beach and without her permission post it on the Web along with sexual fantasies, perhaps with identify imformation. And similarly, if not more so, wouldn't that be true when the pictures are of children and they are to go up on a pedophile's website.

If any part of the order is not legally defective and unenforceable, I should think it would be the photography of children provision. Am I wrong?
8.3.2007 10:49pm
AdamL:
If you still had doubt after the very interesting Stepparent-Adult-Stepchild Incest Post, it should now be clear that Prof. Volokh will not be running for public office in this century. I say that because I cringe at the thought of someone taking fragments from this post and putting a Nancy Grace spin on it. I do find the topic interesting and the points totally legitimate.
8.4.2007 1:51am
Crunchy Frog:
California judges stand for re-election every ten years, I believe.
8.4.2007 3:03am
David Chesler (mail) (www):
based on a proved pattern of harassment, without any threat of danger.

You can also get a restraining order against your daughter's boyfriend if you disapprove of him or fear he will "steal her innocence". (Search on Kevin Bucchio, a 17-year-old sentenced to three years in the Billerica House of Corrections by Judge Paul McGill in 2003.)
8.4.2007 4:52am
Nikki:
neurodoc: based on my limited reading on this as a casual photographer, if you're in a public place you're fair game to have your picture taken. If I want to distribute or publish it for profit, then if you are identifiable in the photo, I should have a release form. If, however, the photo is to appear in a news publication, then my understanding is that a release form is not required. (Of course the polite thing to do is to ask permission - and my experience is that news photographers not covering a large public event like a demonstration or Harry Potter book release or something generally will ask for permission. My boyfriend and I were reading on the quad once when a student photographer wandered by and asked if he could take our picture for the university paper.)

Ever look through a newspaper and see one of those human/local interest filler type photos of kids running through the sprinklers in the summer, or making a snowman in the winter, or something? In cases like that I assume the photographer asks for parental permission.

This is my impression as a hobbyist photographer and not a lawyer, though, so I may be completely wrong. The impression I got when I did a little digging is that this is a somewhat vague issue which only becomes more defined when a photographer incurs the ire of law enforcement or an individual irritated enough to sue.
8.4.2007 10:43am
CheckEnclosed (mail):
If the papers served on the defendant only had to do with the Santa Clarita area and the court expanded it to California sua sponte after knowing that the defendants had not appeared at the hearing isn't there a wee tiny little problem with notice and due process, notwithstanding the merits of a TRO for Santa Clarita only?

Perhaps the court's idea is that it can get some press for this order and then do something less extreme at the preliminary injunction stage.
8.4.2007 12:02pm
neurodoc:
Nikki, thanks. What you say sounds generally correct, but I would still appreciate a well-informed legal opinion as to the limits here. I very much doubt that McClellan gets the permission of parents to take their children's pictures. And in the very unlikely even that he does, then I wonder what sort of release would encompass posting the photos on his blog, where he spins out his pedophile fantasies. EV makes only passing mention of the photography and doesn't get into the legalities of what may be done with the photos subsequently.
8.4.2007 1:26pm
unhyphenatedconservative (mail):
Eugene,
McClellan has stated in interviews that he has touched children on trips abroad to South America.

But why am I not surprised that the pointy head brigade is more worried about the protection of an avowed pedophile than of the kids he's targeting? Can you honestly tell me that the First Amendment was intended to protect this kind of activity? I am sure that "protect the pedophiles" was quite a rousing cry to gain support for the Constitution and was only left out of the Federalist Papers due to lack of space.
8.4.2007 1:48pm
TruePath (mail) (www):
unhyphenatedconservative:

In an *unsexual* way. I suspect all of us have touched children in an unsexual way. I'm not a big fan of little kids but I don't push away my cousins kids if they come over to hug me.

The rest of your argument is just a general tirade against constitutional rights and the idea that some freedoms should be protected from abrogation by a mob. If you think that the first amendment shouldn't apply when 'enough' people think the behavior in question is really really bad why have a first amendment at all?
8.4.2007 2:46pm
unhyphenatedconservative (mail):
TRuepath,

His statement differentiated from what he said about being asexual type touching in the U.S. Indeed, the very fact that he differentiated in his dealings with children in foreign jurisdictions, rather than those in foreign jurisdictions, is indicative that even he views them as different or else why would he have mentioned them differently? Unfortunately, it was a radio news report I heard him say it on or I would provide a link.

And my point is not that Constitutional rights fail at the thundering of the mob but rather that I think our intelligentsia is too quick to cover things in Constitutional protection that the drafters of the document and its amendment would not have viewed as being protected.
8.4.2007 9:00pm
Anthony D. Zinnanti (mail):
Hi Folks -

I'm that silly lawyer mentioned in the thread. I find some of the comments pretty funny.

1. The opinion regarding the order was stated before anyone read the moving papers.

2. I didn't serve McClellan. I had a process server with me. I'm a party as a Guardian AD Litem. So, I couldn't serve him.

3. The order was based on a pattern of chronicled conduct (coming into evidence per Ev. Code, section 1220, et seq.) including McClellan's self-described smuggling of narcotics onto an international flight (evading law enforcement in the airport), his use of such hallucinogens and, in particular, his chronicle of contemplating luring several children into his vehicle. Specifically, his quote from the blog is "There might have been a single mom or two with kids as well, but they all arrived in cars, so I didn't have the 'need a ride?' offer to use, and the kids never separated from the parents (there weren't any playing in the park's playground on this cold day)." There's a lot more in addition.

Prior restraint of "free speech" is a huge issue. We don't intend to restrict his free speech. Further, the California Constitution sets a platform which tends to create a more stringent standard than a pure First and Fourteenth Amendment analysis. However, it is our position that there is a false light argument with respect to the defamation aspect, in addition to concerns of invasion of privacy by virtue of appropriating a non-consenting minor's image and placing within the paradigm of "pedophilia."

Lastly, I will present a clear and present danger argument in the sense of Sun v. Superior Court (1973) 29 Cal.App.3d 815 with respect to the mention of "specific intent." Here, the blogging regarding luring children into the car may fulfill the criteria. Then again, maybe it won't.

Whether defamation as it regards publication related to non-official action will give rise to prior restraint remains to be seen. Exhibit 14, the surreptitiously taken picture of the little girl and lodged in the website's codebase might be a bit troublesome for Mr. McClellan in that regard.

I have a lot of work to authenticate certain materials and I may take his deposition in the interim.

Lastly, we made every attempt to give McClellan three calendar days notice for the ex parte. As you all know, the CRC requires 24 hours. While we were in court getting the order, McClellan was in the Van Nuys Library doing . . . guess what?

Anyway, don't let the facts get in the way of a good story.

I want one of you to come down and try the case on August 24.

Okay. Sorry to interrupt.

Carry on . . . .
8.5.2007 1:43am
Anthony D. Zinnanti (mail):
Lastly, why is Professor Volokh speaking to criminal probable cause when this is a CCP 527 and 527.6 action?

Please don't render a prognosis before seeing the patient. It doesn't serve to educate the public.

I'm serious when I say I'd like to get an attorney down to court on the 24th. I'll make it clear in the press that you're not adopting his moral views, etc. The matter should be tried by competent counsel. I'm doing CNN on Monday and I'm going to issue the request publicly.
8.5.2007 1:52am
Adam Reed:
I am not a lawyer, but I try to live within the law, and I vote, and I read this blog for those reasons. As I've now learned, a judge has issued a temporary order against a citizen who is not convicted of any crime - and the order prohibits this citizen from coming to court to contest the very order that prohibits this citizen from coming to court to contest it. Please tell me that I've been reading too much Franz Kafka and so I'm having nightmares and not to worry, I'll wake up back in America.
8.5.2007 4:28am
David Maquera (mail) (www):
Anthony Zinnanti, have you even read, much less analyzed, the case of Sun County of San Bernandino v Superior Court??? The issue in the foregoing case was whether the trial court's "gag order" on the press prohibiting the publishing of names of witnesses in a murder case should be upheld? Here, the issue in the present case is readily distinguishable from the Sun County case because in this instance the lower court has gone beyond merely imposing a gag order on McClellan's blogging but in fact imposed what Professor Volokh characterizes as "house arrest" upon McClellan.

Furthermore, the appellate court in the Sun County case actually vacated the lower court's "gag order" so I am not sure you want to rely on the analysis in the Sun County case. Nevertheless, in Sun County, the appellate court's reasoning for determining that the "gag order" failed the "clear and present danger" test is summarized by the following quote from Sun County:

"First Amendment rights may not be sacrificed on the basis of possibility that some evil might occur if the utterance is published." (Internal citations ommitted).

In the Sun County case, the nine witnesses were specifically identified to the court and provided with security by the state. In the present case, no specific child has been specifically identified as being possibly endangered by McClellan's blogging. Instead, the court was presented with the possibility that all children located in Santa Clara might be endangered by McClellan's blogging and the court then went on to enter an order that essentially holds that all children in California are endangered in McClellan's blogging. Therefore, in light of the Sun County case, this case is like a house built on quicksand.

Anyway, don't let some proper legal analysis get in the way of your good story. If you wanted to obtain your fifteen minutes of fame with the press, Zinnanti, you certainly did a good job. However, a lawyer who takes his profession seriously would make an effort to obtain a good result on behalf of his client(s) while staying within the bounds of both the state and U.S. Constitution.
8.5.2007 10:53am
Anthony D. Zinnanti (mail):
Wow. I better keep my mouth shut. I admire the free speech advocates who immediately head for the pejoratives when they find disagreement. Further, sorry you - an apparent free speech advocate - is offended by the new coverage.

Can you clarify when it is okay to have coverage and when it is not? I'll tell the press to turn off their cameras to avoid any appearance of impropriety. You people are rife with contradictions.

The order does not prevent McClellan from coming to court. That's nonsense. As I am sure all of you are aware, ability to comply is one of the elements of contempt. If the order creates an impossibility to comply therewith, McClellan cannot be held in contempt of court for purported violation.

Further, as I'm sure many of you legal practitioners (right?) are aware, Town of Castle Rock v. Gonzalez clearly sets forth that enforcement of a restraining order is wholly within the discretion of law enforcement with respect to any official action related to enforcement. You've read Castle Rock, correct? So, you would know that a restraining order doesn't even give rise to the expectation of enforcement.

I have a lot of experience with law enforcement and the enforcement of such orders. If McClellan is in blatant violation of the order, then law enforcement may do something. If he is in inadvertent violation of the order then, chances are, they will likely not do anything.

As for Sun, yes I have read the opinion. Did I say it was "on all fours"? No. Read the post again. I said with respect to the specific intent aspect of clear and present danger.

Okay scholars, question: Is it a violation of privacy or defamation in the sense of false light to surreptitiously take a photograph of a non-consenting minor child (a little redundant there) and place such photo for public view under the auspices of pedophilia?

Answers please. (BTW - this is a no brainer.)

Lastly, I won't disagree with the free speech advocates anymore. It apparently makes them very angry.
8.5.2007 11:17am
methodact:
TRO's are a dime a dozen. Your question reads like: "When did you stop beating your wife?" Adam Reed and EV both made astute points. You yourself use "pedophilia" in the pejorative and speaking of pejoratives, CNN is a "tool".
8.5.2007 1:45pm
Adam Reed:
I must thank Anthony D. Zinnanti for his clarification. Living in Prague, Franz Kafka may well have been inspired by what he could see just over the border in Germany, a state where the police had been given unrestrained discretion to arrest even a citizen who had not broken any laws, except of course for the law that gave the police this very discretion. Why am I so uncomfortable when a lawyer appears to be similarly inspired by fictions inspired by the reality of such discretionary contingencies?
8.5.2007 4:51pm