To Catch a Predator

The First Amendment is intended to protect everyone’s rights, right? Well maybe that shouldn’t be the case anymore. There are some people who should not be allowed to use the First Amendment in their defense. Previously, there have been child solicitors attempting to use the First in their defense. They claim that people have the right to speak to children online. Frank Gagliardi tried to defend himself using that mindset.

In July of 2005, at the ripe old age of 62, Frank Gagliardi entered a chat room titled “I Love Older Men” and happened to come across the screen name Teen2Hot4U which turned out to be Lorie, the 13 year old. They chatted it up a bit and he eventually broached the subject of sex. Gagliardi was well aware of her age and asked to meet her in person to engage in prohibited sexual activity. He explicitly said, “I want to meet you . . . make love to me anytime . . . no strings attached.” Lorie was slightly afraid and asked him if a friend of hers could accompany her. Gagliardi was unquestionably fine with that. Lorie told him to e-mail her friend Julie who also happened to be 13 years old. Gagliardi did so and sent his picture along. He decided to meet the two on September 29, 2005 and even said “I will dream about you 2 all night.”

Now here’s the twist! It turns out that “Lorie” was a Federal Bureau of Investigation informant that had helped catch many sexual predators in previous years. Uh-Oh! Looks like things aren’t turning out too well for Gagliardi. It gets worse: “Julie” turned out to be FBI special agent Austin Berglas. When Gagliardi went to go pick up the two girls, he was met with handcuffs instead. After searching his vehicle, Viagra and two condoms were found. Aside from all of the online chat evidence, this tangible evidence was enough to convict him for intending to engage in sexual activity with minors.

Gagliardi was found guilty, but he decided to appeal to the 2^nd Circuit Court of Appeals in Manhattan. There, he argued that in United States Code 18 section 2422 (b) is too vague and implies that an actual child needs to be used in order for his solicitation to be a crime. The law reads:

“Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 5 years and not more than 30 years.”

Now, technically it does not say that an impersonator can be used to catch the predator, but it does say that the offender has to knowingly persuade someone 18 years of age or younger. For all Gagliardi knew, the person he was talking to was 13 years old. Even if this law would not put Gagliardi in jail, the court said his speech is unprotected by the First Amendment because it is the “very vehicle of the crime itself.” The 2^nd Courts of Appeals ruled that his speech is unprotected, but it is okay for FBI or other governmental agents to pose as children in order to catch predators like Gagliardi.

People could argue that Gagliardi is protected by the First because his solicitation was online. People can choose to go wherever they want online and are not forced to listen to things as they are when listening to the radio. Parents can protect their children by blocking the chat mechanisms and monitoring their children’s online activities. However, this puts the burden on the parents when it should be the government who should be able to keep the children of America safe and innocent as long as possible.

The 2^nd U.S. Circuit Court of Appeals also said that “requiring police to use an actual child as a decoy would significantly impede legitimate law enforcement and that the law itself was clear that an actual child was not required.” It is just morally wrong to use a child as a decoy to catch a sexual predator.

The courts decision was the right one in not granting Gagliardi his freedom of speech. He is sentenced to jail for 5 years. There should be more measures taken when it comes to catching these sexual predators, but not allowing them their freedoms is a good place to start.

Sources:

http://www.firstamendmentcenter.org/news.aspx?id=19225

http://wtop.com/?nid=104&sid=1275522

http://seattlepi.nwsource.com/national/1110AP_Sexual_Predators.html

http://www4.law.c

http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTQ1NDEtY3Jfb3BuLnBkZg==/06-4541-cr_opn.pdfornell.edu/uscode/html/uscode18/usc_sec_18_00002422----000-.html

The "Key" to Expulsion via Facebook

Facebook, Facebook, Facebook, here we go again… Adam Key, a Regent University Law student, is in deep doggy doo doo for posting a picture of Regent’s president, Pat Robertson, flipping the bird. Can you imagine THE televangelist, Robertson, giving the finger?? Well, you were right, you can’t imagine it, Key photo shopped a Youtube video where Roberts was innocently scratching his nose with the notorious finger. After finding the picture, school officials demanded Key take the photo down. Key did not exactly listen (the picture is up right now, just search Adam Key on Facebook) and he sent out an e-mail to all students using the school’s list serve informing them of what happened and how the school’s rules and guidelines are used to suppress their Freedom of Speech. According to their handbook, the school does not allow “profane or obscene expressions ... which violates accepted standards of decency and Biblical conduct.” Key mocked this rule in his e-mail which did not help his case in remaining a student at the university. The administrators just got all riled up again and gave him impossible choices. One was to take down the photo and send an apology through the list serve again and the other option was to write a brief on what he did. So instead of doing what the officials most likely wanted (sending an apology), he got under their skin some more and wrote a 14 page brief about how his First Amendment Rights have been violated. The administrators looked over his brief and decided he was to be banned from the school!

Key’s case cannot be decided by a public school’s standards or rules because, unfortunately Regent is a private school with its own private rules. The first amendment does not apply to the student’s rights because there is no state action involved in his case. All mercy falls into the hands of the school administrators. It is unlikely that they will be sympathetic to Key. Key even says that the school will punish anyone that has something to say that the officials do not agree with. To test what is allowed or not, just ask whether or not it will be allowed in a G-rated movie. If it passes the test, then by all means, speak your mind! If not, then keep it to yourself.

To make Key look like a criminal, the law school’s associate dean Natt Gnatt (yes, that’s his real name) said that students “have reported, among other things, that you said that you brought a gun on campus, which is a violation of University policy.” Key neither denied nor confirmed the allegation. The administrators are bringing up unrelated activity to bring Key’s legitimacy down along with his status as a student.

Some might consider Key’s post of Robertson as libelous because it puts Robertson in a false light, but Key can argue that he did not intend to make it appear that the president was sticking up his middle finger. It seems that what once seemed like a safe place on the internet, is now deteriorating and Facebook is being used as a weapon against students rather than the socializing tool it was intended to be. When will University and High School officials get the hint to stay out of a student’s life when he is not a student on campus. Even private universities should make up their own rules that give students paramount rights to freedom of speech. The universities should instill the values that were meant by our founding fathers to promote the free market place of ideas. If there is no robust and uninhibited debate in colleges, then where would it be??

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The Facebook Fiasco

Facebook has faced many tribulations since its popularization among the college students. Nowadays, it has been facing many freedom of speech issues. Caitlyn Casseday, a West Lafayette High School student, received an in-school suspension after she called a school official an “ass” on a Facebook group. This was not an unwarranted verbal attack on the administrator. Earlier that week, a few students were suspended because of a loud fight in a computer lab; Casseday and a few other students were punished because apparently they insulted school administrators. Casseday believes that she should not be suspended and rightfully so. Shouldn’t students have the right to speak out about what their school is doing? Absolutely. Corruption can be prevented by being able to use our freedoms of speech and of the press.

Casseday used the word “ass” to describe the assistant principal, Ron Shriner. He took her into his office and not only suspended her, but told her he hated her! This is what some might call unprofessional. Now, if Caitlyn used a different word or phrase to convey her feelings, she might not have been suspended. But why should the content matter? It shouldn’t. In Cohen vs. California, Cohen sported a jacket with the words “Fuck the Draft” on the back. His offense was not for the words that appeared on his back, but for his conduct. He was in a public place where words such as those might offend people. The case was ruled in his favor, but nonetheless, this case could be applied to Casseday’s situation. It is clear that the administration has a problem with the word she used, but according to Cohen she should have every right to speak her mind. However, there may be a catch: Casseday is a high school student. According to the federal courts, high school students should not receive the same rights as everyone else.

The Morse v. Fredericks case severely inhibits high school students’ rights. The Supreme Court argued that the “BONG HiTS 4 JESUS” banner Morse held up at a school sponsored event allegedly promoted illegal drug use. The drug use is only illegal because the government says it is, so even if Morse was promoting illegal drug usage, it should be seen as a kind of subtle political protest. In any case, Casseday was simply protesting the actions of her school officials and this can technically be seen as a “political protest” against the policies of her public school.

Tinker v. Des Moines Independent Community High School District gives high school students “a right to political speech subject to disruption — that the speech not be disruptive.” If Casseday’s speech can be defined as a type of political speech, then she should be protected under the Tinker case because she did not cause any disruptions at school. The comments she posted were off school property and should not be subject to punishment.

Before Casseday’s case, the school’s code of conduct book said that in order for suspension or expulsion to occur students must have been “engaging in speech or conduct ... that is profane, indecent, lewd, vulgar ... or is plainly offensive to school purposes” on or off school property. However, the internet is not mentioned in the book so there should be no grounds to punish Casseday because she made these posts on her own computer and on her own time. The school is considering amending the conduct code to include vulgar speech on online forums as well. It seems as though the school is finding ways to punish these students because they simply do not like what they wrote on the forum. Disliking speech is not grounds to punish students and the administrators should not be so adamant in defending their behinds; it makes them look suspicious.

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The Free Flowing Silence

The freedoms of speech and of the press have been hotly contested over since the beginning of U.S. history. There have been cases like Watergate and the Valerie Plame fiasco that have cast doubt on whether or not journalists or reporters should testify in court releasing their confidential sources. It is important to protect the speaker in cases where he is considered a whistle-blower. A whistle-blower is a person that basically tattles on someone else, usually a high ranking official or reveals secrets that are highly controversial and would have never been revealed otherwise.

States already have court decisions and laws called state shield laws that protect the reporter from testifying in court without a properly justified reason. The court has to “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.” This exception was created in the ruling of the federal case, Branzberg v. Hayes. In this case, a journalist, Branzberg, wrote an article about marijuana in Kentucky. He came across two dealers and was able to obtain important information after promising he would not testify against them in court. The activities of the dealers was illegal and the court brought it up and asked Branzberg to testify. He refused by using the First Amendment Freedom of the Press in his defense. The court ruled against him, but established that journalists are not compelled to testify unless the court has overwhelming evidence against the individual or source in question and it is a benefit to the public to know the source.

Most states have a shield law protecting journalists, but not all do. The shield law varies state by state. Senator Christopher Dodd (D-CT) proposed a bill that would make a federal law protecting journalists and reporters from being compelled to testify under court subpoena. The bill does not allow the legislative, judicial, or executive branch to force a journalist to give information about their sources whether the sources were promised confidentiality or not. The only way the government can force the journalist to talk is when there is absolutely no other way to receive the information and it is in the public’s interest or safety to receive the information.

Opponents of this bill that is to be named the Free Flow of Information Act suggest that the terms journalist and reporter are not clearly defined. In some cases child pornographers can be identified as journalists or a spy posing as a journalist is considered one as well. Gangs that spread information wide can be considered journalists as well. The bill is a necessary one to protect the robust freedom of speech and keep the marketplace of ideas as truthful as possible. There is fear that national security would be compromised if the bill became a law. People posing as journalists would have access to information and can easily put the secret information in the wrong hands putting our country in danger. If the term journalist was defined more properly to not include people maliciously trying to do damage then the bill would be fit for passage and the freedoms of speech would be rightly protected.

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The FOBulous Freedom of Speech

Immigration, illegal or not, has been an integral part of American history. Our founding fathers were illegal immigrants for Christ’s Sake! The first colonists boarded the Mayflower and illegally navigated the seas arriving at the famous Plymouth Rock. They were the first FOBs (Fresh Off the Boat) of America. The big question in contemporary times is what to do with illegal immigration? Some people say loosen the immigration restrictions and let people in the country with greater ease. Others say tighten the borders and deport the current illegal immigrants back to their homeland of oppression. Isn’t the United States the land of the free and the home of the brave; the land of opportunity? Who is to say who is allowed to benefit from what Old Glory has to offer?

Regardless of what beliefs people hold, another part of being an American is having the right to the freedoms of speech and of the press. Andrew Smith, wrote an article, “Immigration,” for his California high school newspaper, The Buzz, speaking against illegal immigration. The article was radical for a high school newspaper and caused a lot of discontent and opposition from parents and students. In one part of the article he visibly compares illegal immigration to a drug bust:

“It would be so easy to bust these illegals. All they would have to do is illegally hire them and if they can’t provide a green card, then it’s bye bye for them.”

A letter of apology was sent out and extra newspapers were collected. Smith was later beaten up by schoolmates for his controversial stance on immigration. Even after the trouble he caused, he published an even more tactless article called “Reverse Racism.”

He argued that whites in this country are treated more harshly than minorities and affirmative action was also racism against whites.

This last article was cleared for publication by the school principal again, but the publication was delayed and in September of 2002, Smith sued for infringement on his freedom of speech. The lawsuit called for one WHOLE dollar in nominal damages.

In Smith vs. Novato Unified School District, the superior court ruled in favor of the school district, but Smith appealed the case and the decision was overturned. According to the California Court of Appeals:

"[A public high] school may not prohibit student speech simply because it presents controversial ideas and opponents of the speech are likely to cause disruption. Schools may only prohibit speech that incites disruption, either because it specifically calls for a disturbance or because the manner of expression (as opposed to the content of the ideas) is so inflammatory that the speech itself provokes the disturbance." A District's response infringes a student's right to free speech when it ‘would chill or silence a person of ordinary firmness from future First Amendment activities.’"

The position the California Court of Appeals took was more libertarian than the way the United States Supreme Court decided cases concerning students’ rights. California will only prohibit speech if it will imminently cause danger. If it will probably cause danger, then the speech is protected. Did Smith’s writing contain material that incited people to act violently against illegal immigrants? No, but was the material damaging to people’s morale? Yes. The U.S. and California Constitutions say that it is alright for there to be risk in the media. According to the Libertarian approach in interpreting the First Amendment, the speaker should be protected and the readers should have to deal with the speech. The First Amendment supports tolerance; basically, if you don’t like it, suck it up.

The Court protected the “manner of the expression (as opposed to the content of the ideas).” The ideas may have been controversial and hurtful to many, but he also did not force his ideas upon anyone. Nothing that was written was unconstitutional.

In Lopez v. Tulare Union Junior High School, there was the notion of loco parentis which suggested that school officials need to act in place of parents when children are at school. With regard to this case, in many people’s eyes, the principal did not act in loco parentis and should be punished accordingly. The principal should not have allowed the material to be published.

Nevertheless, Tinker v. Des Moines said that a student’s rights are not breeched once they set foot on campus even when dealing with loco parentis. The court also quoted Termeniello v. Chicago by stating that “[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” In the end, the public good and the market place of ideas should not be compromised because some people are upset. Isn’t that the speech that needs to be protected? The more unpopular, the more protection it should receive, especially if it is political speech like Smith’s was. It is a good thing that Smith was able to publish his ideas because the article also served as a safety valve for Smith. It is better to let him say what he has to say rather than become angry and possibly violent.

The interesting part of the Smith case is that if it was decided by the U.S. Supreme Court, then the decision may have been in favor with the school. In the Morse v. Fredrick case, Morse was expelled from school by displaying a “BONG HiTS 4 JESUS” banner off of school property. The U.S. Supreme Court has ruled that some student rights are compromised once they set foot on campus. This is to prevent further tainting of “innocent” minds. Children just might do an illegal bong hit in the name of Christ when they get home. California courts say that a student’s rights are the same when they are on or off campus. It all depends on how narrowly the First Amendment is defined. California sees the amendment in a broader sense and gives students the same rights as adults everywhere. The U.S. justice system may want to take a hint.

Sources:

http://www.courtinfo.ca.gov/opinions/documents/A112083.DOC

http://www.cfac.org/AGOpinions/opinion_79_58.html

http://www.dailycasereport.com/index.php?q=adv_sheet_by_court/174

http://www.splc.org/pdf/novatoeditorials.pdf

http://www.firstamendmentcenter.org//news.aspx?id=19101&SearchString=smith_reverse_racism

http://www.cartoonstock.com/lowres/hsc3602l.jpg