BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                           Senator Gloria Romero, Chair              A
                             2007-2008 Regular Session               B

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          AB 2718 (Runner)                                           8
          As Amended June 4, 2008
          Hearing date:  June 24, 2008
          Penal Code
          JM:mc

           INJUNCTIONS CONCERNING PERSONS WITH SEXUAL INTEREST IN CHILDREN 

                CONTACT AND DISSEMINATION OF INFORMATION OR PICTURES  



                                       HISTORY

          Source:  Office of the Governor

          Prior Legislation: AB 534 (Smyth) - 2008, pending in Senate  
          Appropriations

          Support: Los Angeles County District Attorney

          Opposition:Taxpayers for Improving Public Safety; American Civil  
          Liberties Union

          Assembly Floor Vote:  Ayes 75 - Noes 0



                                         KEY ISSUE
           
          SHOULD A PERSON BE ENJOINED FROM CONTACT WITH A CHILD OR CHILDREN,  
          OR FROM DISSEMINATING INFORMATION ABOUT A CHILD OR CHILDREN, WHERE  
          THE FOLLOWING ARE SHOWN: THE PERSON HAS DEMONSTRATED AN UNNATURAL  




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          SEXUAL INTEREST IN A CHILD OR CHILDREN THROUGH, IN PART,  
          DISSEMINATION OF INFORMATION OR PICTURES OF THE CHILD OR CHILDREN  
          WHO ARE THE SUBJECT OF THE PERSON'S SEXUAL INTEREST?





                                       PURPOSE

          The purpose of this bill is to provide that a person may be  
          enjoined from contact with children, or from disseminating  
          information about or pictures of children where the person has  
          shown an unnatural sexual interest in children by, in part,  
          disseminating information about or pictures of a child or  
          children who are the subject of sexual interest.

           Existing law  states every person who annoys or molests any child  
          less than 8 years of age shall be punished by a fine not  
          exceeding $5,000; by imprisonment in a county jail not exceeding  
          one year; or by both the fine and imprisonment.  (Pen. Code   
          647.6, subd. (a)(1).)  Decisional law provides that the  
          defendant must be motivated by an unnatural or abnormal sexual  
          interest in children and that the average person would certainly  
          find the defendant's conduct to be disturbing or irritating.   
          (People v. Lopez (1998) 19 Cal.4th 282; People v. McFarland  
          (1988) 206 Cal.App.3d 459.)

           Existing decisional law  provides that annoying or molesting a  
          child can be proved by a single act or a continuous course of  
          conduct of separate acts.  A single act, such as kissing a  
          child, can constitute a violation of section 647.6.  In another  
          case, a course of conduct might involve acts that would not  
          amount to a crime, but that would constitute annoying or  
          molesting a child when considered together.  (People v. Moore  
          (1986) 185 Cal.App.3d 1005, 1014-1016.)

           Existing law  states any person who willfully and lewdly commits  
          any lewd or lascivious act, including any of the acts  
          constituting other crimes provided for in existing law, upon or  




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          with the body, or any part or member thereof, of a child who is  
          under the age of 14 years, with the intent of arousing,  
          appealing to, or gratifying the lust, passions, or sexual  
          desires of that person or the child is guilty of a felony and  
          shall be punished by imprisonment in the state prison for three,  
          six, or eight years.  (Pen. Code  288, subd. (a).)

           Existing California Supreme Court decisions  state that the  
          "touchstone of the public nuisance doctrine" is the "notion of  
          the community and its collective values."  (People ex. rel Gallo  
          v. Acuna (1997) 14 Cal.4th 1090, 1109.)

           Existing law  defines a nuisance thus:  "Anything  injurious to  
          health, including  illegal sale of controlled substances, or   
          indecent or offensive to the senses, or an obstruction to the  
          free use of property, so as to interfere with the comfortable  
          enjoyment of life or property, or unlawfully obstructs the free  
          passage or use  of any navigable lake, [body of water], or any  
          public park, square, street, or highway, is a nuisance."  (Civ.  
          Code  3479.)


           Existing law  provides that a person may obtain a court order for  
          an injunction - an order that another person or entity not  
          engage in specified behavior.  (Code. Civ. Proc.  595.) 

           Existing law  includes the crime of contempt.  One form of  
          criminal contempt involves willful disobedience of any court  
          process or order.  Criminal contempt is a misdemeanor,  
          punishable by imprisonment in a county jail for up to six  
          months, a fine of up to $1,000, or both.  (Pen. Code  166,  
          subd. (a).)

           Existing law  includes civil contempt.  Civil contempt can  
          involve disobedience of a court order.  Trial of civil contempt  
          is by the court.  The maximum penalty for civil contempt is a  
          fine of up to $1,000, a jail term of up to five days, or both.   
          (Code Civ. Proc.  1209, 1217-1218.)






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           This bill  creates a new civil injunction action in the section  
          defining the crimes of "annoying of molesting a child."  This  
          new provision states:


               Notwithstanding any other law, any person who, by  
               clear and convincing evidence, demonstrates an  
               unnatural or abnormal sexual interest in a child or  
               children, which includes the dissemination of personal  
               information or photographs of the child or children  
               who are the subject of the sexual interest, may be  
               enjoined pursuant to [] 527 of the Code of Civil  
               Procedure from further activity that includes direct  
               or indirect contact with, or the dissemination of any  
               personal information or photographic representations  
               of, that child or children.


              RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
          
          California continues to face an extraordinary and severe prison  
          and jail overcrowding crisis.  California's prison capacity  
          remains nearly exhausted as prisons today continue to be  
          operated with a significant level of overcrowding.<1>  A year  
          ago, the Legislative Analyst's office summarized the trajectory  
          of California's inmate population over the last two decades:

              During the past 20 years, jail and prison  
              populations have increased significantly.  County  
              jail populations have increased by about 66  
              percent over that period, an amount that has been  
              limited by court-ordered population caps.  The  
              prison population has grown even more dramatically  
              during that period, tripling since the  



              --------------------
          <1>  Analysis of the 2007-08 Budget Bill:  Judicial and Criminal  
          Justice, Legislative Analyst's Office (February 21, 2007); see  
          also, court orders, infra.






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              mid-1980s.<2>

          The level of overcrowding, and the impact of the population  
          crisis on the day-to-day prison operations, is staggering:

              As of December 31, 2006, the California Department  
              of Corrections and Rehabilitation (CDCR) was  
              estimated to have 173,100 inmates in the state  
              prison system, based on CDCR's fall 2006  
              population projections.  However, . . . the  
              department only operates or contracts for a total  
              of 156,500 permanent bed capacity (not including  
              out-of-state beds, . . . ), resulting in a  
              shortfall of about 16,600 prison beds relative to  
              the inmate population.  The most significant bed  
              shortfalls are for Level I, II, and IV inmates, as  
              well as at reception centers.  As a result of the  
              bed deficits, CDCR houses about 10 percent of the  
              inmate population in temporary beds, such as in  
              dayrooms and gyms.  In addition, many inmates are  
              housed in facilities designed for different  
              security levels.  For example, there are currently  
              about 6,000 high security (Level IV) inmates  
              housed in beds designed for Level III inmates.

              . . .  (S)ignificant overcrowding has both  
              operational and fiscal consequences.  Overcrowding  
              and the use of temporary beds create security  
              concerns, particularly for medium- and  
              high-security inmates.  Gyms and dayrooms are not  
              designed to provide security coverage as well as  
              in permanent housing units, and overcrowding can  
              contribute to inmate unrest, disturbances, and  
              assaults.  This can result in additional state  
              costs for medical treatment, workers'  
              compensation, and staff overtime.  In addition,  
              overcrowding can limit the ability of prisons to  

              --------------------
          <2>  California's Criminal Justice System:  A Primer.   
          Legislative Analyst's Office (January 2007).



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              provide rehabilitative, health care, and other  
              types of programs because prisons were not  
              designed with sufficient space to provide these  
              services to the increased population.  The  
              difficulty in providing inmate programs and  
              services is exacerbated by the use of program  
              space to house inmates.  Also, to the extent that  
              inmate unrest is caused by overcrowding,  
              rehabilitation programs and other services can be  
              disrupted by the resulting lockdowns.<3>

          As a result of numerous lawsuits, the state has entered into  
          several consent decrees agreeing to improve conditions in the  
          state's prisons.  As these cases have continued over the past  
          several years, prison conditions nonetheless have failed to  
          improve and, over the last year, the scrutiny of the federal  
          courts over California's prisons has intensified.

          The federal court has appointed a receiver to take over the  
          direct management and operation of the prison medical health  
          care delivery system from the state.  The crisis has continued  
          to escalate and, in July of last year, the federal court  
          established a three-judge panel to consider placing a cap on the  
          number of prisoners allowable in California prisons.  It is  
          anticipated that the court will reach its decision this year.

          In his order establishing the judicial panel, Judge Thelton  
          Henderson stated in part:

            It is clear to the Court that the crowded conditions  
            of California's prisons, which are now packed well  
            beyond their intended capacity, are having - and in  
            the absence of any intervening remedial action, will  
            continue to have - a serious impact on the Receiver's  
            ability to complete the job for which he was  
            appointed:  namely, to eliminate the unconstitutional  
            conditions surrounding delivery of inmate medical  
            health care.



            ----------------------
          <3>  Analysis 2007-08 Budget Bill, supra, fn. 1.



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            . . .  (T)his case is also somewhat unique in that even  
            Defendants acknowledge the seriousness of the  
            overcrowding problem, which led the Governor to declare  
            a state of emergency in California's prisons in October  
            2006.  While there remains dispute over whether crowded  
            conditions are the primary cause of the constitutional  
            problems with the medical health care system in  
            California prisons, or whether any relief other than a  
            prisoner release order will remedy the constitutional  
            deprivations in this case, there can be no dispute that  
            overcrowding is at least part of the problem.  . . .   
            The record is equally clear that the Receiver will be  
            unable to eliminate the constitutional deficiencies at  
            issue in this case in a reasonable amount of time  
            unless something is done to address the crowded  
            conditions in California's prisons.  This Court  
            therefore believes that a three-judge court should  
            consider whether a prisoner release order is warranted  
            . . . .  (Hon. Thelton Henderson, Order dated July 23,  
            2007 in Plata v. Schwarzenegger (N.D. Cal) No. C01-1351  
            TEH (citations omitted).)

          Similarly, Judge Lawrence Karlton stated:

            There is no dispute that prisons in California are  
            seriously and dangerously overcrowded.  ()  The  
            record suggests there will be no appreciable change  
            in the prison population in the next two years.   
            (Hon. Lawrence K. Karlton, Senior Judge, United  
            States District Court, Order dated July 23, 2007 in  
            Coleman v. Schwarzenegger (E.D. Cal.) No. S90-0520  
            LKK JFM P (citations omitted).)

           This bill  does not appear to aggravate the prison overcrowding  
          crisis outlined above.


                                      COMMENTS

          1.  Need for This Bill  




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          According to the author:

               This bill explicitly authorizes a parent of a child  
               who has been the focus of a person with an unnatural  
               sexual interest in children to seek a preliminary  
               injunction against dissemination of information if the  
               behavior includes the publication of information about  
               the victim or victims.  An injunction would allow law  
               enforcement to place restrictions on the activities  
               and whereabouts of this type of offender, similar to  
               Jack McClellan, affording additional protection for  
               children. 



          2.  The Strange Case of Jack McClellan  

          This bill is in response to the behavior of a man named Jack  
          McClellan.  McClellan has made headlines nationwide for  
          operating a Web site in which he candidly discussed his  
          attraction to pre-pubescent girls.  One article in the New York  
          Times stated that McClellan describes himself as a pedophile but  
          claims to have never committed a crime against a child.   
          Nonetheless, McClellan caused widespread outrage by posting (non  
          pornographic) photos of young children on his Web site as well  
          as describing places where children are likely to be found.

               Two months ago, Mr. McClellan said, he was more or  
               less run out of Washington State, where he lived  
               off and on with his parents, after the news media  
               there and various Web sites drew attention to his  
               activities, making him worry about his safety and  
               that of his family.  He had been posting nonsexual  
               pictures of children on a Web site intended to  
               promote the acceptance of pedophiles, and to  
               direct other pedophiles to events and places where  
               children tended to gather.

               So he moved to Los Angeles, where he was born, to  




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               try to live a Southern California version of his  
               former life.  The climate was one draw  but also  
               "there are so many world-class children's  
               attractions here."

               Mr. McClellan has refrained from posting pictures  
               of children on his Web site, which was shut down  
               by its host several weeks ago but which he intends  
               to start again, he said, with a Dutch host.  On  
               the site, he has described fairs, festivals and  
               other spots that he hits at least three days a  
               week, all to the fury of parents.  

               It is both his actions and inactions that vex law  
               enforcement officials here, who, while suggesting  
               that they keep an eye on Mr. McClellan when they  
               can, say they have no legal recourse against him.   
               (Parents' Ire Grows at Pedophile's Unabashed Blog,  
               New York Times, July 28, 2007.)

          While McClellan's behavior has caused considerable alarm among  
          parents wherever he is rumored to be residing, law enforcement  
          officials have stated that he does not appear to have broken any  
          laws.  Another media report stated the following:

               "There is no law against someone making you feel  
               uncomfortable," said Laurie Levenson, a former federal  
               prosecutor and a Loyola Law School professor.   
               "There's a line to cross and I don't think he has yet.  
                He's tiptoeing around the law."

               Some child advocacy groups worry that it's only a  
               matter of time before McClellan acts on his thoughts.   


               "Even the most outrageous thoughts are protected (by  
               law) but it appears Mr. McClellan is doing more than  
               expressing them," said Ernie Allen, president and CEO  
               of the National Center for Missing & Exploited  
               Children.  "It's a question if he crosses the line  




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               into illegal activity or encourages others to do so."

               It's not a crime to be a pedophile -- by definition an  
               adult who fixates on children as sexual objects.  It's  
               only a crime for pedophiles to act on their desires  
               and molest a child.  And while California has tough  
               penalties for stalking and harassment, McClellan's  
               conduct apparently hasn't risen to a criminal level.

               Several law enforcement agencies, both in California  
               and his former home state of Washington, have  
               monitored or investigated his activities but not  
               charged him with a crime.

               McClellan, who mostly has lived out of his car since  
               arriving in California a few months ago, maintained a  
               Web site for years where he posted pictures of  
               children he had photographed in public places.  It has  
               since been taken down by the server.

               He said earlier this month that running the site,  
               where he also discussed how he likes to stake out  
               parks, public libraries and other areas where little  
               girls congregate, was therapeutic because it allowed  
               him to share his thoughts.

               "I thought it was the best therapeutic thing for my  
               own head to kind of put this out there, what I'm  
               thinking," he said before his arrest.  "I'm determined  
               not to do anything illegal.  I haven't done anything  
               illegal."  (Experts: Pedophile Blogger Tiptoes Around  
               Law, Associated Press, August 16, 2007.)

          This bill would provide that a person such as McClellan, who  
          states that he has a sexual interest in prepubescent girls, and  
          who distributes information about children or photos of children  
          manifesting such interest, could be enjoined from contact with  
          children or distributing information or photos of children.

          An August 24, 2007, Associated Press article described a  




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          court hearing in which a  Los Angeles County Superior Court  
          judge issued a permanent injunction against McClellan:

               A judge Friday ordered self-described pedophile Jack  
               McClellan to stay at least 10 yards from places where  
               children congregate, including schools, playgrounds  
               and child-care centers.  Superior Court Judge Melvin  
               Sandvig issued a permanent injunction narrowing his  
               initial order earlier this month that had barred  
               McClellan from coming within 30 feet of any person  
               under 18 anywhere in California.  The new order also  
               prohibits McClellan from contacting, videotaping, or  
               photographing children without written consent from  
               their guardian or parent.

               The injunction allows civil action against McClellan  
               if it is violated.  A three-year restraining order  
               carrying the same restrictions was also issued and  
               given to all law enforcement agencies in the state.

               As he left the hearing, McClellan told reporters: "I  
               don't know what I'm going to do now."

               McClellan, 45, came to the attention of authorities  
               for a Web site where he posted photos of children in  
               public places and discussed how he liked to stake out  
               parks, public libraries, fast-food restaurants and  
               other areas where little girls congregated.  McClellan  
               maintained he launched the site as a form of therapy  
               and wouldn't do anything illegal.  He has never been  
               charged with molestation.  His Internet service  
               provider took down his Web site more than a month ago.

               The orders issued by Sandvig bar McClellan from  
               publishing any image of a child without parental  
               permission.  McClellan has been unemployed and living  
               out of his car since arriving in Southern California  
               this summer from Washington.  He received a police  
               escort Friday into the courthouse after arriving in  
               the parking lot and donning a shirt in his car.




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               Sandvig did not give specific reasons for revising his  
               initial order but indicated he was aware of concerns  
               about its constitutionality given its sweeping nature.

               "Minor children are a group that do need extra  
               protection because they can't be watched 24-seven,"  
               the judge said.

          An Internet search by Committee staff has found no current  
          information about Jack McClellan.  Further, there were no  
          stories about the legal status of the injunction.  

          3.  Code of Civil Procedure Section 527

           This bill states a person may be enjoined pursuant Code of Civil  
             Procedure (CCP) Section 527 from further disseminating  
          information about a child if the court finds clear and  
          convincing evidence that he or she disseminated the information  
          with an unnatural or abnormal sexual interest.  Code of Civil  
          Procedure Section 527 concerns grants before judgment of a  
          temporary restraining order and a preliminary injunction and  
          states, in relevant part, "A preliminary injunction may be  
          granted at any time before judgment upon a verified complaint,  
          or upon affidavits if the complaint in the one case, or the  
          affidavits in the other, show satisfactorily that sufficient  
          grounds exist therefor."  (Code Civ. Proc.  527, subd. (a).)

          CCP section 527, subdivision (b), explains the grounds for  
          granting a temporary restraining order:

               No temporary restraining order shall be granted  
               without notice to the opposing party, unless both of  
               the following requirements are satisfied:  it appears  
               from facts shown by affidavit or by the verified  
               complaint that great or irreparable injury will result  
               to the applicant before the matter can be heard on  
               notice.

               The applicant or the applicant's attorney must certify  




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               one of the following to the court under oath: that  
               within a reasonable time prior to the application the  
               applicant informed the opposing party or the opposing  
               party's attorney at what time and where the  
               application would be made; that the applicant in good  
               faith attempted but was unable to inform the opposing  
               party and the opposing party's attorney, specifying  
               the efforts made to contact them, and; that for  
               reasons specified the applicant should not be required  
               to so inform the opposing party or the opposing  
               party's attorney.  (Code Civ. Proc.  527, subd.  
               (c)(1) and (2).)

          Presumably, both of these remedies are available under  
          existing law to a person who can show inappropriate  
          dissemination of information caused irreparable injury. 

          4.  Conduct Beyond Speech Described in This Injunction May be a  
          Crime Under Current Law  

          As noted in Comment #5, below, this bill may illegally prohibit  
          protected speech.  A person's statement that he is a pedophile  
          is protected speech, regardless of how much that statement  
          disturbs others.  Where the bill can be applied to not violate  
          the First Amendment, the defendant's conduct already could be a  
          crime, making an injunction unnecessary.

          This bill provides that a person can be enjoined from either  
          direct or indirect contact with a specific child or children, or  
          enjoined from dissemination of information about such child or  
          children, where the person demonstrates an unnatural sexual  
          interest in children, including through the dissemination of  
          personal information about the child or children.

          Penal Code Section 647.6 provides that a person who demonstrates  
          an unnatural sexual interest in children through conduct towards  
          a child that a reasonable person would find to be disturbing or  
          irritating.  Where a defendant demonstrates an unnatural sexual  
          interest in children by posting photographs or information about  
          children, it is quite likely that a reasonable person would find  




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          the defendant's conduct objectively disturbing.  However, if the  
          information or photographs were not conveyed or displayed to a  
          child, the defendant did not annoy or molest a child, but rather  
          disturbed or irritated an adult, and the defendant has not  
          violated Section 647.6.  However, the child at whom the conduct  
          was directed need not be disturbed or irritated.  (People v.  
          Lopez, supra, 19 Cal.4th 282, 290.)  A person could be guilty of  
          violating Section 647.6 by photographing or videotaping  
          adolescent boys in a disturbing manner.  (Ecker v. Raging Waters  
          (2001)87 Cal.App.4th 1320, 1330-1331.)

          The child pornography crime laws prohibit a person from  
          possessing or distributing images of a child or children engaged  
          in actual or simulated sexual conduct.  Sexual conduct is  
          broadly defined to include posing done or directed with the  
          purpose of sexual stimulation of the viewer.  (Pen. Code   
          311.4, subd. (d).)  (As noted above, Mr. McClellan did not  
          violate child pornography laws.)

          McClellan's website and other speech or conduct were not  
          directed at nor displayed to children.  It appears that  
          McClellan communicated with adults.  Because the images  
          displayed on his Web site were not pornographic, and because his  
          disturbing statements, photographs and conduct were not directed  
          toward children, he did not violate Section 647.6.



















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          IF THE CONDUCT THIS BILL ADDRESSES IS EITHER PROTECTED SPEECH OR  
          A CRIME UNDER CURRENT LAW, WHAT IS THE PRACTICAL EFFECT OF THIS  
          BILL?

          5.  First Amendment Issues 

          The United States Supreme Court has recently issued important  
          rulings concerning free speech in the Internet age.  These cases  
          include (Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234,  
          245-246.)  The Court in Ashcroft ruled:

               As a general principle, the First Amendment bars the  
               government from dictating what we see or read or speak  
               or hear.  The freedom of speech has its limits; it  
               does not embrace certain categories of speech,  
               including defamation, incitement, obscenity, and  
               pornography produced with real children.

               Furthermore, the mere tendency of speech to encourage  
               unlawful acts is not a sufficient reason for banning  
               it.  The government "cannot constitutionally premise  
               legislation on the desirability of controlling a  
               person's private thoughts."  (Citation.)  First  
               Amendment freedoms are most in danger when the  
               government seeks to control thought or to justify its  
               laws for that impermissible end.  The right to think  
               is the beginning of freedom, and speech must be  
               protected from the government because speech is the  
               beginning of thought.

               To preserve these freedoms, and to protect speech for  
               its own sake, the Court's First Amendment cases draw  
               vital distinctions between words and deeds, between  
               ideas and conduct.  (Citations.)  ("The normal method  
               of deterring unlawful conduct is to impose an  
               appropriate punishment on the person who engages in  
               it.")  The government may not prohibit speech because  
               it increases the chance an unlawful act will be  
               committed "at some indefinite future time."   




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               (Citation.)  The government may suppress speech for  
               advocating the use of force or a violation of law only  
               if "such advocacy is directed to inciting or producing  
               imminent lawless action and is likely to incite or  
               produce such action."  (Ashcroft, supra, 535 U.S. 234,  
               253, citations omitted.)

          Speech that is intended to be used to incite a crime against  
          children would appear to be protected under the First Amendment  
          unless it is both intended to incite or produce  imminent  lawless  
          action  and  is likely to produce such action.  This bill contains  
          neither of these features.


          DOES THIS BILL VIOLATE THE FIRST AMENDMENT RIGHT TO FREE SPEECH?

          6.  This Bill in Contrast with AB 534 (Smyth) 

          AB 534 (Smyth) was also introduced in response to the McClellan  
          matter.  AB 534, which passed this Committee earlier this year,  
          would create a new Penal Code section 273i that reads as  
          follows:

               Any person who publishes information describing or  
               depicting a child [under the age of 14, the physical  
               appearance of a child, 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 

          AB 534 does not restrict protected speech.  The bill prohibits  
          specific conduct that creates a specific danger to a child.  The  
          conduct described is a crime, not the basis for an injunction.   
          As such, a person who violates this section can be immediately  
          arrested and prosecuted.  In contrast, under this bill a parent  
          or other party would need to obtain an injunction against the  
          person who could pose a danger to a child.  No more action could  
          be taken, including arrest, unless and until the person violates  












                                                           AB 2718 (Runner)
                                                                      PageQ

          the injunction.  Arguably, the bases for an injunction under  
          this bill would be subject to uncertain application, including  
          the application of the term indirect contact with children.  



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