Even a creep has a right to free speech

Posted: Monday, August 20, 2007

Meet Jack McClellan. You might want to shower afterward. Nobody in the greater Los Angeles area will have to ask what I mean. In the last month or so, McClellan has roiled Southern California by saying in effect: I'm a pedophile and there's nothing you can do about it.

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The hell of it is, he's right. You cannot, or in any event, should not, be arrested for what you are, only for what you've done. McClellan has done nothing. Or at least, nothing for which he should be prosecuted, there being no law against making people nauseous.

The story goes as follows. In late July, McClellan was confronted by police. They had been summoned by a woman who saw him loitering around the children's section of a library in Santa Monica. McClellan, who, according to news reports, lives mostly out of his car, was cooperative even to the point of allowing officers to take his picture. He was also candid and unapologetic about his sexual attraction to little girls. But McClellan, 45, evidently has no arrest record or warrants anywhere in the country, so police had no choice but to let him go.

The bizarre encounter quickly catapulted McClellan onto the local news and talk show circuit, where people learned that he had a Web site (since taken down) featuring photos taken of little girls in public places and ranking the best places for pedophiles to see children. It was also said that McClellan was thinking of moving to the city of Santa Clarita.

Two Santa Clarita lawyers were sufficiently alarmed to seek a restraining order requiring McClellan to stay away from the city's children. A judge was sufficiently alarmed to give them even more: an order prohibiting McClellan from coming within 30 feet of "any child in the state." In effect, the judge imposed house arrest on a man who had committed no crime.

Predictably, McClellan was twice arrested last week for violating an order it would be nearly impossible to obey. Just as predictably, legal experts are now saying the obvious: the order is unconstitutional.

Yes, Jack McClellan is a reprehensible freak. And that opinion holds, by the way, even if, as some suspect, he turns out to be merely some kind of bizarre prankster. But for our purposes today, take him at his word that he really is a man with a sexual fetish toward children. The urge to imprison such a creature for the rest of its days is more than understandable.

The problem is, there is no legal rationale for doing so. The law is a broadsword and it is being used here to peel an apple. It can't be done. You only destroy the apple and smear the sword.

There are limits to what the law can do and sometimes you find yourself stranded beyond those limits, faced with behavior that is clearly wrong and yet, just as clearly, legal. To respond to that behavior with acts that please the crowd but stain the law is to cross the line that separates the citizenry from the mob.

Californians should publicize McClellan's face and fetish until every child in the state knows to run, screaming, on sight. Put up fliers, organize online. But they ought not prosecute him for what he has only said.

Yes, fliers and such are unsatisfactory options. But any option - the restraining order included - that did not involve closing a fist on McClellan's windpipe would be unsatisfactory. At least those don't require us to sell out fundamental values for the fool's gold of security.

Even Jack McClellan enjoys the privileges of the First Amendment. He is free to say he's a child molester. He's free to say he's a Satanist. He's free to say he's a racist.

You think it's terrible that a man can say such things? I agree. Indeed the only thing more terrible would be if we lived in a country where he could not.

• Leonard Pitts Jr., winner of the 2004 Pulitzer Prize for commentary, is a columnist for the Miami Herald. Write to him at lpittsmiamiherald.com.



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