Those who want a sense of what the self-described pedophile blogger's site has looked like in the past can see archived pages here. The blogger is obviously a disturbed and disturbing man -- at best someone who has fun scaring the wits out of parents, and at worst a child molester -- but I think it's necessary to see his work to get a sense of what legal responses would be permissible or impermissible.

Most of the pictures aren't included in the archive, which is good for the pictures' subjects but makes it a little harder to evaluate. The one picture I saw, which was purportedly taken in South America, does fit with the media reports that the pictures on his sites have not themselves been pornographic (though obviously they are disturbing and menacing in context).

A court has just issued a restraining order — with no appearance by the defendant — that, among other things,

(1) bars McClellan from "follow[ing], ... keep[ing] under surveillance, or loiter[ing] with or around any minor child,"

(2) bars McClellan from contacting, "photograph[ing], videotap[ing], post[ing] on internet, or otherwise record[ing] any image of a minor child without parent's or guardian's written consent,"

(3) bars McClellan from "loiter[ing] where minor children congregate in, including but not limited to schools, parks, playgrounds, bowling alleys," and

(4) requires McClellan to "stay at least ... 10 yards away from" "any minor child."

The court reports that the order is "based on stalking" and "based on a credible threat of violence and harm to minor children." The order is ambiguous on whether McClellan is also barred from having guns — those provisions on the order form are crossed out in one place but not in another; I take it the court's intent was not to apply them at all.

I don't know what evidence was introduced at the hearing, so it's possible that there was some evidence that McClellan had actually molested children, or was planning to do so. If there was, and the evidence was sufficiently strong, then a temporary order of some sort would be constitutional — a person can, after all, be arrested and jailed just on a finding of probable cause to believe he has committed a crime.

But if the only evidence is what we've seen in the press, which is chiefly that McClellan admits to a sexual attraction to children, believes that sex with children is proper, claims not to have molested children or engaged in sexual touching with them but has apparently said he had "hugged" them, and has in the past photographed children and posted their photos on the Internet with text praising their appeal and promoting the propriety of sex with children, then it seems to me that the order is unconstitutional.

You can't restrict people's movement, and their ability to take photographs in public places (even of children, something that is routinely done by the media and others and that is presumptively protected by the First Amendment), simply because of their ideology and expressed sexual desire, even when one understandably worries that at some point this ideology plus desire will turn into actual molestation. The premise of our legal system is that restraints on where you can go on in public (and broader freedom, including the freedom to photograph and to post photographs) can only be instituted after some showing of concrete evidence that someone has committed or is planning to commit a crime. The police can't arrest people just because they think they might be dangerous, or because they have expressed support for criminal activity; the courts can't restrict their liberty of movement on those grounds. The controversy about no-fly lists that are based on mere suspicion illustrates this concern, and the outer boundaries of even national security powers; but even the no-fly lists don't go so far as to make it a crime for someone to go to certain places, or be within 10 yards of any child.

Without doubt this general prohibition on prophylactic police and court action poses some dangers. I suspect there are lots of people out there whom the local police understandably suspect of some crime, and who may in fact victimize someone before a crime can be proven. But it seems to me that on balance waiting until there's concrete evidence that a crime has been committed, or is at least being planned — dangerous as such waiting may be — is less dangerous than letting courts restrain movement simply based on people's even repugnant ideologies and desires.