Jack McClellan was arrested in Los Angeles yesterday for exercising his First Amendment right to freedom of speech. Well, officially he was arrested for violating a restraining order that forbids him to come within 10 yards of any minor in California. But the restraining order was issued based on his public discussion (online, on TV, and in print) of his sexual attraction to little girls, coupled with the perfectly legal photographs of (clothed) girls that he took in public places and posted on his now-defunct website (which was shut down by the company that provided his server space due to public complaints). McClellan, who has never been convicted of a sex crime, says he has never acted on his impulses and will not as long as doing so remains illegal. According to Fox News, he "said he created the Web site to promote association, friendship and legal, consensual cuddling between men and pre-pubescent girls."
McClellan, then, has not done anything illegal; he has not even advocated doing anything illegal (which also would be protected speech, unless it was intended and likely to result in "imminent lawless action"). He may be perverted (not to mention stupid), and he is probably not an ideal babysitter. But his situation is analogous to that of a neo-Nazi who says Hitler had the right idea and wants Congress to take legislative cues from the Third Reich. Both are despicable and unpopular, but well-loved people who say uncontroversial things have no need for the First Amendment. Were it not for the hysteria about allegedly rampant sexual abuse of children by wandering predators, the parallel would be obvious to everyone (or at least to the judge who issued the restraining order).
UCLA law professor (and reason contributor) Eugene Volokh tells the Los Angeles Times the injunction against McClellan won't "stand up as a means to keep him away from children." He adds:
If he takes pictures of kids in public view, they cannot stop him. He may be a guy to be concerned about, but it is not enough….This man is obsessed with this. He is willing to ruin his life. It is clearly spooky. But it is legal to advocate pedophilia and not act on it.
The Times mentions that locking up McClellan for violating the court order could be viewed as a kind of preventive detention, which the courts also tend to frown on. Notably, the Supreme Court has made an exception for sex offenders, allowing states to lock them up indefinitely in mental hospitals after they've served their prison terms. Ostensibly, this is "treatment," not preventive detention. Unlike the prisoner in that case, McClellan has not been convicted of any sex crimes. But one of the lawyers who sought the injunction suggests that shouldn't matter, asserting that McClellan "is really sick" and "cannot control his impulses."