Skirting the Line: Restricting Online Pedophilic Guides Within the Confines of the First Amendment

• Publication year: 2009
• Citation: Vol. 32 No. 03

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 32, No. 3SPRING 2009

COMMENTS

Skirting the Line: Restricting Online Pedophilic Guides Within the Confines of the First Amendment

Danielle M. Cross(fn*)

I. Introduction

Discover Dance (Seattle). Mar 24, McCaw Hall at Seattle Center. The most spectacular and beautiful series of performances by prepubescent children I've witnessed! Admission was $10, but a woman gave me an extra ticket she had. There were over 400 youth participating, and most of them were girls. The show was approximately 2 hours, and included a 20 minute intermission-which was an opportunity to mingle with LGs from the audience in the multilevel lobby. GL-paradise!(fn1) - Jack McClellan

Posted on the website of a self-proclaimed pedophile,(fn2) blog entries like this one shocked the nation and spurred two fathers into action. In the summer of 2007,(fn3) two attorneys with young children successfully convinced a California judge to issue a restraining order and a permanent injunction against Jack McClellan, the creator of the website, making it nearly impossible for the 45-year-old to remain in the state.(fn4) At the heart of the controversy was McClellan's website, Los Angeles Girl Love, which provided users with a database of local functions, parks, family activities, and general locations to view "LGs" or little girls.(fn5) The website also displayed pictures McClellan had taken of children at various local events.(fn6) As upsetting as the website was, however, parents in California were more shocked when they realized that Jack McClellan had not violated any laws in posting pictures of their daughters online.(fn7)

Californians were not the first to deal with McClellan.(fn8) Before moving to California and starting Los Angeles Girl Love, McClellan lived with his mother in Arlington, Washington, where he maintained another website, Seattle-Tacoma-Everett Girl Love(fn9) McClellan was effectively run out of Washington(fn10) when his website began generating media attention, and his mother demanded that he leave her home.(fn11) In June 2007, McClellan moved from western Washington to the Los Angeles area and began attending local activities, looking for children, and posting his findings and pictures on the Internet.(fn12) Desperate to stop McClellan from visiting and photographing family events, two community members took action.

California attorneys Anthony Zinnanti and Richard Patterson filed for a restraining order and a permanent injunction to stop McClellan.(fn13) Although McClellan's Internet service provider had already shut down his website,(fn14) Zinnanti and Patterson continued to pursue the restraining order and the injunction, asking a judge to restrain McClellan from "abhorrent" conduct after McClellan was spotted at a California bowling alley.(fn15) Taking the action one step further, the judge imposed a highly restrictive restraining order that forbade McClellan from going within thirty feet of any child within California.(fn16) When Zinnanti learned that McClellan was about to leave for Illinois, he raced to Los Angeles International Airport and served the restraining order on McClellan himself.(fn17)

Are parents left only with self-help when confronted with a self-proclaimed pedophile photographing and chronicling innocent family outings?(fn18) Is there no recourse in our justice system to combat these types of websites from the outset? Is there any way to stop these predators without subverting the First Amendment?

Parents should not be left to self-help remedies to combat websites like Jack McClellan's. It is possible to limit the content of these websites and to limit the use of innocuous photographs taken of unknowing children without running afoul of the First Amendment. This problem should be tackled on two fronts: state legislative action and federal congressional action. At the state level, state legislators should regulate the content of websites like McClellan's by borrowing from the legal framework of California's Surrogate Stalker Act (SSA).(fn19) Enacting statutes based on the SSA will give state prosecutors the tools to restrict the content of these websites, posted with the intent to harm children. At the national level, Congress should regulate the use of photographic images on websites like McClellan's by redefining the term "sexually explicit conduct" and by codifying a definition for "lascivious exhibition" in the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT Act), a federal statute that criminalizes the distribution of certain images of children.(fn20) Congress can regulate these pictures, without infringing on First Amendment rights, by redefining "sexually explicit conduct" to include innocuous yet sexually gratifying images.

Part II of this Comment explores the psychological make-up of a pedophile by introducing the diagnostic criteria of pedophilia and by examining lengths to which pedophiles will go to find children. This Part also describes the danger created by websites with seemingly innocuous images and writings, explaining how these websites enable and validate pedophilia. Then, Parts III and IV tackle the issue on two fronts, through state action and federal congressional action, respectively. Part III describes and discusses the SSA, a recent addition to the California Penal Code. In so doing, this Comment advocates that other states consider similar measures. Part IV focuses on the need for federal regulation of pictures like the ones posted on McClellan's website. These Parts pose a solution that will limit what can be posted on websites like McClellan's without running afoul of the First Amendment.

II. The Website and the Pedophile:

Dangers of Online Pedophilic Guides

To understand the need for state and federal regulation of websites like McClellan's, a cursory examination of pedophilia is necessary. The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) provides the diagnostic criteria for pedophilia:A. Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors including sexual activity with a prepubescent child or children (generally age 13 years or younger). B. The person has acted on these sexual urges, or the sexual urges or fantasies cause marked distress or interpersonal difficulty. C. The person is at least age 16 years and at least 5 years older than the child or children in Criterion A.(fn21) Pedophilic behavior typically begins at adolescence; however, some pedophiles claim that their attraction to children did not begin until middle age. (fn22) Pedophiles may be attracted to either prepubescent girls or prepubescent boys.(fn23) The pedophile who acts on his(fn24) sexual urges toward children is likely to justify or rationalize his behavior by claiming that sexual acts provide "educational value," that the child enjoyed the experience, or that the child was promiscuous.(fn25)

Another significant characteristic of pedophilia is deriving sexual satisfaction from otherwise innocuous situations, publications, and places.(fn26) For example, although child pornography is generally the pedophile's first step toward illegal activity,(fn27) the pedophile can also gain sexual gratification through more innocuous publications like department store catalogs.(fn28) Similarly, an otherwise benign visit to a department store can also prove sexually gratifying: the pedophile may touch children's clothing and may even purchase the clothing to use later to stimulate himself.(fn29)

Given these basic traits found in individuals diagnosed with pedophilia, websites like Jack McClellan's enable and validate pedophilia in two troublesome ways. First, the websites enable pedophilia by furnishing sexually gratifying images and fostering the pedophile's perverse search for gratification, telling the pedophile exactly where to go and how likely he is to blend in.(fn30) Second, the websites validate pedophilia by serving as online forums and communities for the pedophile.

A. McClellan 's Website Enables Pedophilia by Conveying Sexually Gratifying Images and Suggesting Locations to Find Children

McClellan's website fuels the pedophile's desires and disease by displaying innocuous images intended to produce sexual gratification. At one point,(fn31) the website contained pictures of girls in public places, including pictures McClellan had taken at a dance recital in the Seattle area.(fn32) If a Sears catalog can prove sexually gratifying to a pedophile,(fn33) it requires no stretch of the imagination to see how a picture of a child taken at a family function and posted on McClellan's website can also prove sexually gratifying. The exploitative nature of these pictures creates numerous concerns for families. Not only do the photographs "portray . . . children as being available to pedophiles,"(fn34) they also "establish the [photographed children] as victims of the sexual acts promoted by McClellan."(fn35)

Websites like McClellan's further exacerbate the mental health problems the pedophile faces by making it easier for him to find new places to discover potential victims. The pedophile will likely seek out this type of information partly because of his obsessive nature.(fn36) In a series of prison interviews conducted by researchers, pedophiles...