Thursday, October 25, 2007

When Speech Is Part Of The Crime

No First Amendment Rights For Sexual Predators


The Cool Justice Report
Oct. 25, 2007

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report,

The United States Second Circuit Court of Appeals ruled on Monday that law enforcement officers investigating sexual predators may pose online as children without violating the First Amendment rights of the targeted predator.

In United States v. Gagliardi, the court rejected the defendant's claim that he was engaging in role playing fantasy. Gagliardi claimed that the law "impermissibly suppresses fantasy speech with adults who happen to be posing as minors."

His lawyers argued that the law used to convict him required an actual child victim. The Appeals Court rejected constitutional challenges to the law as vague and overbroad.

Penal laws -- those that define criminal conduct -- must be precise and circumscribed so as to provide clear notice that the failure to conform to that law constitutes a crime. When a law -- particularly one implicating speech -- can be viewed as also criminalizing otherwise innocent or innocuous conduct, it is viewed as overbroad. That is, it ensnares the innocent and the guilty alike with no distinction. If the terms of the law are so vague that its plain meaning does not provide precise notice of the conduct it criminalizes, then that law is unconstitutionally vague.

Gagliardi was convicted of attempting to entice a child to engage in prohibited sexual activity.

Chris Hanson's To Catch a Predator series provides a real life view of the epidemic of child internet predation. Typically, as so many of Hanson's targets proclaim, the predator believed he was engaging in fantasy role playing and thought he was meeting an adult, or at least someone above the legal age of consent. Decoys from, a vigilante group, pose as children available for sex. In most federal cases, vigilante organizations are not employed. Federal or state law enforcement agents, trained in the art of communication in the cybersex world, patrol chat rooms playing the role of underage teens. Sensitive to the issue of entrapment federal investigators will not instigate the sexual banter, but react to the lead of the target predator.

Entrapment has been tried and generally has failed as a defense in such cases. The defendant who raises the defense of entrapment must, of necessity, admit his participation in the crime, claiming instead that he resisted and only succumbed because of undue pressure from law enforcement. In the usual case the government will endeavor to prove that the defendant possessed a predisposition to commit the offense. Once predisposition is proven the defense of entrapment fails. Typically those trolling fantasy role playing chat rooms have multiple hits from undercover agents, a fact clearly indicative of predisposition. Following an arrest, the seizure and forensic inspection of the defendant's computer often reveals emails or child pornography that also demonstrate his proclivity to commit this conduct -- independent of the opportunity offered by an undercover cop online.

In the typical investigation a target reveals himself in chat rooms like "I love older Men" or others similarly named to suggest adults looking for underage sex. These chat rooms are also occupied by adults who want to fantasy role play, whether as the minor or the adult. In the typical internet sting the undercover allows the predator to take the conversation to specific sexual acts, encouraging, without suggesting. Arrangements are then discussed for a meeting. The First Amendment is not truly implicated by these chats, standing alone. If the target never makes an attempt to meet the subject, the chatting alone has not been found to violate any laws. Once the effort is made to meet, however, state and federal crimes are violated.

In some investigations the police conduct a surveillance of the suspect the first time he travels to the appointed location, but do not arrest at that time. There then follows continued online chatting about why the "child" failed to show and another rendezvous is scheduled. The initial surveillance helps establish the real identity of the predator as well as corroborate the fact that he intends to have sex at the meeting. The feds refer to these as "Traveler" cases, so named because the target is encouraged to travel to meet the intended victim.

In Connecticut's state court the offense charged is Criminal Attempt to commit Risk of Injury to a Minor, as well as Criminal Attempt to commit Sexual Assault. There are multiple degrees of sexual assault depending on the conduct and the age of the victim.

In 2006 the Connecticut Supreme Court rejected a claim that in the absence of an actual minor, there was no real attempt to commit these crimes. In State v. Sorabella the court rejected a number of legal challenges to this type of prosecution, making it clear that in Connecticut, the Cybersex Traveler faced major prison time.

In the federal court the usual charge is Use of an Interstate Facility -- the Internet and online electronic communication -- to Attempt to Persuade a Minor to Engage in Sexual Activity. Often the accompanying language includes Sexual Assault in the Second Degree and Risk of Injury to a Minor in violation of Title 18 United States Code §2422 (b).
The government must prove the defendant believed with victim was under the age of 18.

That offense carries a maximum prison sentence of 30 years, a $250,000.00 fine, and a mandatory minimum penalty of 5 years in prison, following which the court can impose a term of supervised release up to life. Although the age of consent in Connecticut is generally 16 -- unless a teacher, coach or other supervisor is involved -- federal prosecutions raise that age level to 18 for these crimes.

Those found to have traded child pornography, a common activity among the cyber predators, are charged with the additional federal crime of Transportation of Child Pornography in violation of Title 18 United States Code § 2252A(a)(1). That offense carries a maximum of 20 years and a mandatory minimum of 5 years, with the same fine and supervised release provisions as the traveler offense. Under federal sentencing guidelines the offenses are grouped for sentencing purposes, and depending on the number of child porn images found, sentences range well into the double digits.

The framers of the Constitution never envisioned that the freedom they empowered in the First Amendment's guarantee of free speech would be used to shield this type of conduct. The Court of Appeals reiterated an established rule of constitutional law that speech is not protected by the First Amendment when it is the "very vehicle of the crime itself."

Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website,

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