A Stitch in Haste

An alarming excess of disturbing reports over the past few days:

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ITEM: An 18-year old student in Illinois has been arrested for writing an essay —

Allen Lee, an 18-year-old straight-A student at Cary-Grove High School, was arrested Tuesday near his home and charged with disorderly conduct for an essay police described as violently disturbing but not directed toward any specific person or location.
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Disorderly conduct, which carries a penalty of 30 days in jail and a $1,500 fine, is filed for pranks such as pulling a fire alarm or dialing 911. But it can also apply when someone's writings can disturb an individual, Delelio said.

MY TAKE: That last statement is, of course, utter nonsense, as the ACLU intends to demonstrate in the case. Mere words, especially written words handed to a single individual, can never be "disorderly conduct" just because they are "disturbing" (i.e., as opposed to "threatening"). But so what? You don't want another Blacksburg, do you?

More thoughts from Threat Level, Slashdot.

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ITEM: A Canadian national has been permanently denied entry into the U.S. after the government "Googled" him —

[Andrew] Feldmar took his last hit of acid in 1974.

Thirty-two years, however, turned out to be but an instant in the long, unrelenting U.S. war on drugs. Last summer, in an incident that has just come to light, Mr. Feldmar, now 66, was banned from entering the United States because of his long-ago use of LSD.
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The guards simply looked up Mr. Feldmar on the Internet and discovered his own article about using LSD, written for the scholarly, peer-reviewed journal Janus Head.

MY TAKE: This man had no criminal record (and is now protected by the statute of limitations), and the United States has no grounds whatsoever to suspect him of, well, anything. But keep him out anyway. And that's just over our "almost fanatical position on drugs," [Feldmar's attorney's words] — can you imagine the response to some Google hit relating to the War on Terror? (Via Techdirt.)

(SOMEWHAT RELATED: Not always a First Amendment issue, but the New York Times has an article today chronicling the difficulties law-abiding Arab-American citizens are having crossing the border.

More recent episodes that provoked concern include one in which border agents reportedly Googled the name of an Ohio man and then questioned him about a letter to the editor he had written to The Toledo Blade regarding events in the Middle East.

Maybe it is a First Amendment issue after all.)

(ALSO SOMEWHAT RELATED: A 27-year old would-be teacher had her graduate education degree "demoted" to an English degree, and her pending teaching credentials canceled, on the eve of her graduation after school officials decided she had posted a supposedly inappropriate picture — of her drinking at a Halloween party — on her private MySpace page. She is suing.)

(FUN FACT: You can insert the following simple code into a web page to have it passed over by Google and other search engines --

META NAME="ROBOTS" CONTENT="NOINDEX, NOFOLLOW"
Webheads are encouraged to add any other helpful hints in the comments.)

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ITEM: Is the First Amendment being lynched?

Black lawmakers want police to investigate protesters at a statehouse gun rights rally who held up a banner calling for an opponent to be "hung from the tree of liberty."

Rep. Thaddeus Kirkland, chairman of the Legislative Black Caucus, told reporters the banner displayed Tuesday was "an act of racism, an act of hatred, an act of bigotry and a terroristic threat on the life of a colleague."

"No one has the right to call for the lynching of another human being — no one," he said.
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Paul Estus, one of two men who held up the banner, said during the rally that the lynching tree was "just a figure of speech."

MY TAKE: Bad grammar aside, I have trouble finding "hung from the tree of liberty" to be a literal "terroristic" call for a lynching. Then again, I'm not black. Meanwhile, note that the legislator does not merely want to suppress future incidents (which arguably are protected under the reasoning of Cohen v. California, 403 U.S. 15 (1971)), but also wants the banner-carriers "investigated." That's scary. Crafting an supposedly "necessary" exception to First Amendment protection is one thing, but using purported violations of such an exception as an excuse to "investigate" wrong-thinkers comes a bit to close to, as someone once said, a high-tech lynching.

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ITEM: New York's highest court recently played unforgivably fast and loose with the dictionary in the name of "protecting the children" —

In his appeal, [Jeffrey] Kozlow argued that the 1996 state law used against him required throwing out the charges because the statute said the material sent had to "depict" sexual conduct. The law was intended to crack down on pedophiles using computers to lure minors into sexual encounters.

While the Court of Appeals majority agreed that Kozlow did not send sexually explicit photographs to the undercover officer he thought was a 14-year-old boy in e-mails they exchanged, Judge Eugene F. Pigott Jr. said that didn't matter.

MY TAKE: As the dissent noted, every single dictionary that the judges consulted defined "depict" as, unsurprisingly, pictorial — it's the same word root. If the legislature wants to criminalize knowingly sending naughty text to a minor (which it could undeniably do), then let them (e.g., by using "depicts or describes").

Legislators are elected to legislate — so is it too much to ask that they do it properly and not leave judges guessing? And whatever happened to the lenity doctrine, which demands that any uncertainty about a criminal statute's terms be strictly resolved in favor of the defendant?

A truly disturbing decision — not because the defendant wasn't a sleazeball (he was), but because the court accommodated a sloppy legislature. This courts should never do, and certainly never when the First Amendment is even remotely involved.

The case is People v. Kozlow (PDF - 15 pages). (Via How Appealing.)