Wednesday, August 29, 2007

Can't Touch This (Jack McClellan and Constitutional Rights)

Over the years, the ACLU has taken some unpopular stands that would seemingly anger their supposed liberal audience - siding with the Nazis' right to march through Skokie, for example. But some things are too much even for the ACLU, as Independent Sources notes.

Because of publicity regarding [Jack] McClellan and his site a parent sought, and received, a restraining order which prohibited McClellan from coming withing 30 ft of any person under 17 anywhere in California. McClellan was arrested for violating this order on 14 August and charged with tresspassing. The LA City Attorney declined to press charges because the order was issued improperly. On 24 August the judge issued a new order which prohibited McClellan from coming within 30 ft of places children may congregate. McClellan now says he must leave the state because he can’t possibly obey the order and the ACLU while agreeing that the order is overly broad and unconstitutional has declined to represent him.

Don’t take this wrong I am not defending McClellan, where there’s smoke there is generally fire. I do find it amusing that we have finally found a line the ACLU (stalwart defenders of al-Qaeda, Ward Churchill, the Piss Christ, and NAMBLA) won’t cross, even though every lawyer I have heard talking about this case agrees that the restraining order is unconstitutional on two grounds.

First it is overly broad, essentially forcing McClellan to leave the state.

Secondly it punishes thought not actions, and the US doesn’t have thought crimes.

The ACLU was quoted in a Newsweek article that appeared on August 4, before either of the restraining orders were filed:

"There are cases where the courts have limited speech when they concluded that people have done nothing more than create instruction manuals on how to commit a crime," says Peter Eliasberg, managing attorney for the ACLU of Southern California, whose group has not taken a stand in the McClellan matter. "Generally, those are cases where there are very explicit sets of instructions or directions. I have not seen the Web site, so I can’t say whether it fits or not."

For reference, here's part of what the ACLU website says about free speech:

Free speech rights still need constant, vigilant protection. New questions arise and old ones return. Should flag burning be a crime? What about government or private censorship of works of art that touch on sensitive issues like religion or sexuality? Should the Internet be subject to any form of government control? What about punishing college students who espouse racist or sexist opinions? In answering these questions, the history and the core values of the First Amendment should be our guide.

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