Friday, the Assembly passed this bill (Assembly Bill 534), by a 72-0 vote:
Any person who [making the information available to another person through any medium] [any] informationdescribing or depicting a child, the physical appearance of a child [defined as age 14 or younger], the location of a child, or locations where children may be found with the intent that another person imminently use the information to commit a crime against a child and the information is likely to aid in the imminent commission of a crime against a child, is guilty of a misdemeanor, punishable by imprisonment in a county jail for not more than one year, a fine of not more than one thousand dollars ($1,000), or by both a fine and imprisonment. [Emphasis added.]
This is likely constitutional — but only because it's so narrow as to cover virtually nothing, except what is already almost always felony aiding and abetting. It certainly doesn't cover the menacing behavior of "pedophile blogger" Jack McClellan, whose behavior I suspect prompted the law.
The Supreme Court has recognized an exception to First Amendment protection for so-called "incitement" — "advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." (That's the Brandenburg v. Ohio test.) The statutory language seems clearly borrowed from the incitement test, and the statute is therefore likely constitutional. It's true that it speaks of provision of information rather than advocacy of conduct, but I suspect courts will read the Brandenburg exception to equally cover pure information and advocacy, so long as both are intended to and likely to produce imminent lawless action. Information is at least as dangerous in such a situation as is advocacy (and may be more dangerous), and since it's no more constitutionally valuable in such a situation than is advocacy.
But while the narrowness of the proposal makes it constitutional, it also makes it largely pointless. "Imminent," in the Court's incitement jurisprudence, basically means "to happen within a few hours or at most a few days." The Court has expressly concluded (in Hess v. Indiana) that when the contemplated action is "at some indefinite future time," the imminence requirement isn't satisfied. So all that the law will cover are statements like, "Here's where you can find that girl whom you're planning to rape or abduct tonight," which would usually qualify as aiding and abetting of the crime — a felony or an attempted felony — in any event. (The one situation where the law might make a difference is if no felony is actually attempted by the recipient; since criminal liability for aiding someone is derivative of that someone's committing or attempting a crime, generally speaking an attempt to aid someone who does nothing with the aid isn't criminal aiding and abetting. But even there it may well be criminal solicitation, or in some situations evidence of a criminal conspiracy.)
On the other hand, the statements that McClellan was making, and that probably aren't already covered by the law (partly for First Amendment reasons) — "Here's a picture of this girl, isn't she hot, wouldn't it be great if it was OK for us adults to have sex with her" — wouldn't be covered by this statute, either: If they assist any action, it is action "at some indefinite future time," which under Hess doesn't qualify as "imminent" action.
Of course, California courts have the power to read the statute more broadly than the U.S. Supreme Court's incitement exception. But I doubt they will, given how clearly the statutory text is modeled on that preexisting legal rule. (It's a longstanding rule of statutory construction that statutes that appear to refer to existing legal doctrines will be interpreted as incorporating the existing definitions of those doctrines.) And if they do interpret it so broadly, that will likely make the law unconstitutional.
The statute also provides that, "Any parent or legal guardian of a child about whom information is published in violation of [the provision quoted above] may seek a preliminary injunction enjoining any further publication of that information." I think that's likely unconstitutional under Vance v. Universal Amusement Co., for reasons discussed here.
If you're really hungry for more — much more — on the problem of crime-facilitating speech, you might take a look at my Stanford article on the subject.
The 4th Circuit held that the case did not fall within the First Amendment exception because the book, by it's combination of personal exhortation and instructions to people likely to follow it, solicited murder rather than merely advocating it or supplying information about it in the abstract.
The presence of exhortations clearly distinguishes the case from one of simply providing information. However, the 4th Circuit did seem to depart from the idea that a specific known individual has to be known to be contemplating committing a crime within a short period of time, and seemed to indicate that it was sufficient for a court to conclude that such an event was simply likely to occur. In other words, one can solicit without having a specific individual in mind, simply by advertising to people likely to be in the target audience. Such an interpretation, while still fairly confined would seem to place a web site advocating the conduct at some measure of greater risk and not to be quite as narrow.
Doubtless the 9th Circuit (and perhaps Professor Volokh) might disagree with the 4th Circuit on this issue; it remains to be seen what the Supreme Court will say.
I bet it will work.
I doubt very much that the result would have been the same if the publisher were tried for A&A or under some accompliss theory.
The Palladin Enterprises case explicitly distinguished its facts from Hess v. Indiana:
Palladin Press held that providing specific, detailed information moved it beyond "vague, rhetorical threats of violence" and hence outside what Hess protected.
This is clearly a narrower view of Hess than Professor Volokh's reading.
But the unanimous vote shows that it's for show. Who's going to vote against a law to "protect children"... even against nothing?
I wrote a lengthy paper on that very question back in law school. Wish I remembered what it said. Or better yet, that I'd gotten it published.
Roy: I mention conspiracy as a possible theory for criminal liability in some such cases; but it would only apply when there's an agreement between the parties to enter into a joint venture (e.g., if A communicates information about a child to B hoping that both will kidnap or rape the child together). In some situations, there won't be some such agreement, which is why aiding and abetting or solicitation may be the more apt theory.
Two questions come to mind:
1. Does the California statute language ("with the intent that another person imminently use the information to commit a crime against a child and the information is likely to aid in the imminent commission of a crime against a child") require a specifically identified person, or can "another person" refer to whoever reads the book or web site, as in Palladin? It's not clear to me the latter reading is excluded.
2. Could a court have concluded, under the facts of Palladin, that the author of Hit Man intended that another person use the information in the book to commit a crime? If such a conclusion could reasonably be reached by circumstantial evidence -- the author exhorted the readers to commit murder and authored detailed practical instructions, the book was consciously and intentionally written, therefore the author intended that another person would follow the exhortations and instructions -- then I don't see how the wording of the California statute (construed in this broader sense) would lead to a result narrower than what occurred in Palladin.
Prof. Volokh, ultimate conspiracy liability need not include some specific intent as to an end result, only an intent to enter into some criminal enterprise, right? The agreement having been made and the other requisites in place, the "gotcha" of conspiracy is the "natural and probable consequences," that can, for instance, tie a co-conspirator into a homicide when that was the last thing on his mind. In your example conspiracy liability seems a given, but even under less strenuous circumstances A's liability for a foreseeable end result should not depend on an "end result" intent, should it?
have a hard time seeing that working when the only overt act is not itself criminal, such as a posting somewhere like: "This little cutie can be found at *wherever* at 6pm on Wednesdays, come check her out"
I have a hard time seeing a close enough tie between such a post and any action a third party ends up taking with such information.
The imminence requirement (and probably the likelihood requirement, though that's not clear) also keeps the bill from adopting the Paladin-proposed exception for speech intended to cause harm. The legislature could have tried to push the envelope by relying on Paladin; but it didn't, because it included an imminence requirement that Paladin didn't rely on (since of course in Paladin, even if we assume the author intended to promote contract killings, book authors don't generally intend to promote imminent action, but instead at most intend to promote action at some unspecified future time).
Redlands: I think conspiracy requires a general agreement to act together (even if an implicit and not very specific agreement). Simply providing one piece of information to the other person and then walking away, without the other person's agreeing to use it, and without any preexisting agreement that one provide it, isn't a conspiracy.
Public_Defender: Your point is generally a good one, but here if the prosecutor and others want to threaten that the law will be applied more broadly than it's written, I'd think they can do the same with aiding and abetting law or conspiracy law, which at least don't have an express written element ("imminence") that keep them from applying. Perhaps the greater specificity of the law, with its focus on information about children and attacks on children can deter some people (either if they hear about it generally or if they're threatened with it in a specific case); but I'd think the greater specificity as to imminence would largely negate that extra deterrence.
More broadly, advertising one's pedophile interests and one's willingness to potentially help child molesters, is something most intelligent people don't do in the first place -- even setting aside the risk of prosecution for that, they face risk of greater police attention that could lead to arrest or prosecution for something, as well as the risk of social ostracism. The rare bird who wants to do what McClellan did would probably need more than this statute to provide some marginal extra deterrent.
Finally, if the theory is to incapacitate him by the jury's stretching the statute and appellate judges' affirming, I suppose that's possible, though not good (I think we agree on the "not good" part). But it seems to me that judges that are willing to stretch that far would have been equally willing to uphold a statute that just didn't require imminence at all, for instance one that was indeed crafted to follow Paladin Enterprises and some of the other cases that have taken that approach. (I don't support such a statute on First Amendment grounds, for reasons I gave in my Crime-Facilitating Speech statute; but I think such a hypothetical no-imminence-required statute would be more constitutionally defensible, see Paladin than an application of this bill with "imminence" creatively read out of it.)