Q&A: Can a Pedophile Be Law-Abiding?

Is there such a thing as a lawful pedophile? Parents and children's advocates in the Los Angeles area have grown worried about Jack McClellan, a self-described pedophile who in recent months has maintained an on-again, off-again Web page where he charts his trips to family-friendly venues like parks, county fairs and bowling alleys to meet what he calls LGs—little girls. McClellan tells reporters that he gets a "high" from being around girls between 3 to 11 years old, but insists he does not molest them. (Pedophilia covers a continuum from legal fantasy to illegal molestation and rape.) So far, law-enforcement officials agree with him. L.A.-area cops say McClellan is not under investigation. "We've monitored his Web site, and at the moment we're determined that it does not cross into that area where it's criminal in nature," says Capt. Joe Gutierrez, commander of the Los Angeles Sheriff's Special Victims Bureau, which handles sex crimes and child-exploitation cases.

(On Friday, a pair of California fathers decided to use the courts to stop McClellan. Anthony Zinnanti and Richard Patterson, who are also lawyers, successfully obtained a temporary restraining order that bars McClellan from approaching or photographing children under 18 anywhere in California. Los Angeles Superior Court Judge Melvin D. Sandvig ordered McCellan to "stay at least 10 yards" from any minor child in the state, barred him from photographing or using an image of kids without parental consent and commanded him not to "loiter where minor children congregate including…schools, parks, playgrounds, (and) bowling alleys." McClellan wasn't present at the hearing, and the order couldn't take effect until he was formally served with it. After a frantic search for the self-proclaimed pedophile, Zinnanti found him by mid-afternoon—at LAX, boarding a flight for Chicago. Zinnanti served the papers, and later explained to NEWSWEEK why it was important to stop McClellan through the court. "I wanted to protect the kids and also to give the community the sense there is recourse through the system," Zinnanti says.)

McClellan is atypical; he seems to enjoy the spotlight, whereas most practicing pedophiles stay in the shadows. The 45-year-old—who lives in local motels, and, he told reporters, has had bouts of depression and supports himself with disability checks—came to local prominence in Washington state in the spring. He'd been running a similar site, called Seattle-Tacoma-Everett Girl Love, freely discussing the merits of meeting young girls at Easter-egg hunts, "bouncy houses" and church socials and offering how-to advice for other pedophiles. ("Most libraries have frequent programs and events for children, and sometimes you can get quite close to LGs there," ran one post last spring.) But a public outcry led the service provider to shut his Web site and he moved to the L.A. area, where he soon went public with a similar site. He talks to reporters and even allowed the Santa Monica Police Department to shoot a mug shot of him—which he thought might help eliminate him as a suspect in future cases—though he got angry when police used it in a "Public Information Bulletin" warning residents about a "Notorious Pedophile Advocate."

Gutierrez won't say what steps his department is taking to keep an eye on McClellan, whose latest Web site is currently down (it's unclear whether McClellan took it down voluntarily). Surveillance, undercover operations, information sharing and joint operations with other police agencies are options—even before police launch a formal investigation. "We will be proactive," he says. "We don't necessarily wait for a crime to occur."

Cops face a tough dilemma. If they do too little, they risk letting something horrible happen to a child—and enraging a community that will be hard-pressed to understand why someone on law-enforcement's radar could get away with a crime. If the police act too quickly, they might violate the civil liberties of a law-abiding citizen, no matter how repugnant to community standards his predilections might be.

Courts rarely restrict free speech—except in a few fact patterns, including when the writer is clearly instructing readers on how to commit crimes. "There are cases where the courts have limited speech when they concluded that people have done nothing more than create instruction manuals on how to commit a crime," says Peter Eliasberg, managing attorney for the ACLU of Southern California, whose group has not taken a stand in the McClellan matter. "Generally, those are cases where there are very explicit sets of instructions or directions. I have not seen the Web site, so I can't say whether it fits or not.

But the fact that McClellan can speak out so publicly is disturbing to Ernie Allen, president of the National Center for Missing & Exploited Children. Allen says he trusts that police in Washington and California are being vigilant. But he doubts that McClellan will be able to resist engaging in molestation. And he says that McClellan's how-to advice should not be given free-speech protections. Allen spoke to NEWSWEEK's Andrew Murr about how the cops should handle McClellan—and his belief that instructing potential pedophiles about places to meet kids is tantamount to yelling "fire!" in a crowded theater. Excerpts:

NEWSWEEK: Law-enforcement officials say McClellan is not breaking the law by cruising family-friendly parks and fairs and posting it online? Do you agree?
Ernie Allen: We think this strains the limits of free speech. This is [like] communications from the people who tell you how to make bombs on the Internet. We certainly believe in the sanctity of the First Amendment and free speech, but when the nature of the speech takes on the character of illegal action, when it counsels and advises and informs people about techniques for committing crimes, I find that really troubling. It really goes right to the edge. And in so many of these kinds of instances, when you look more closely, it really does go over the line.

For example, we were very interested in some child-modeling sites. They aren't illegal. But in some cases law enforcement has scrutinized them and found they have indeed resulted in the victimization of children offline. Many times these things are a cover for abuse and they also are fanning the fantasies of those who access these sites. But the First Amendment is not just a constraint, it's a very real protection and we espouse and support it.

Are you satisfied that law enforcement is looking carefully at this man?
We know that law enforcement has looked closely at this guy. And you just have to keep doing that. This is a really serious concern.

Is it the pictures that concern you or the words that surround them that talk about good places to spot little girls, or both?
It's both. The reality is that I don't think there is any question about the purpose and intent of what he's doing. He's not disguising it. It's sort of a primer on where to go. And the fact that he is using photographs of children, so that there's no question in my mind what the message is. I think law enforcement is right, that as long as this is public it probably doesn't violate the law. But our view is that you need to look real close at this guy.

What else bothers you about him?
There's an irony in how scary and creepy this guy looks. We have spent a lot of time communicating to moms and dads and kids that the stereotypical view of offenders [as a creepy stranger] is very different [from the reality]. We know for a fact that those who prey upon children are people who seek legitimate access and don't look like stereotypes. These are doctors, lawyers, schoolteachers and executives and police officers; it really crosses the societal spectrum. The vast majority don't look the way children expect them to look. We've done focus groups with kids. They all get the idea they shouldn't talk to strangers. But when you ask them what a stranger is, it's invariably somebody who is big and scary and dirty and ugly: people who look like they are going to hurt you. But really, [the pedophile] is far more likely to be someone who is a friend, a coach. One of the most negative things from Mr. McClellan's work is that he is playing directly into the myth that we are trying to dispel.

Think he's doing that deliberately?
I have no idea whether it's conscious or not. But there's no question that what he's doing is certainly capturing the attention of a lot of parents. We've gotten calls about him. How can this happen? How can someone do this? Unfortunately, as the L.A. Sheriff points out, this is a guy who knows to go right to the line and not cross it. Our view is that we need to look more closely. Because it's not conceivable to us that somebody can do this without crossing the line.

How rare is it that people behave this publicly?
It's rare. And I'm sure part of it is for effect. But it's troubling. There's the National Man/Boy Love Association, NAMBLA. Its view has always been that it does not engage in physical acts against children. They say they are a civil rights organization. There have been efforts by some to incorporate them into the gay and lesbian rights issues, and they have been rejected by the gay organizations.

And there have been reporters who have infiltrated some of [these kinds of] groups. A few years ago, a man went into one of these groups with a hidden microphone. Well, the people at the so-called "civil rights" group spent the whole meeting trading photos of kids and talking about how they could access kids. That's why I am deeply skeptical about these kinds of behaviors. It's usually driven by the desire to access and harm real kids.

Are the laws against pedophilia adequate? Is the beginning of the spectrum of what is illegal in the right place? Should what this guy is doing be illegal?
I think we know that there is a long history protecting free speech going back 100 years to Schenck v. U.S. [the 1919 Supreme Court case which established that speech must present a "clear and present danger" of leading to harm before it can be abridged] and shouting fire in a crowded theater. Free speech is so sacred that in order for it to be limited, it should take on the character of illegal action. I think in this case, where this guy shows real children where he is not getting prior consent [for photos] and where he is getting a how to for pedophiles on where to find children—in my view that certainly crosses the line.

We are not in any way second-guessing law enforcement. This is right at the edge of shouting fire in a crowded theater. Certainly by inference this promotes illegal action. This is a cookbook on how to be successful as a pedophile. Children do not have the ability to consent. I understand that free speech is easy when it is popular, but when there is an exercise of speech that in my judgment advocates illegal [activity] that results in the victimization of children, there's a real need to look closely at it. I'm not suggesting that he's crossed the line, but he's hovering on the edge of it.

He's been very overt on his Web sites. Is there any reason to think he might be playing an elaborate practical joke?
From our perspective it doesn't much matter what his motives are. This may be a practical joke. I think you have to look at that. He may have a need to draw attention to himself and be enjoying the media spotlight. But whatever his motives, the content causes harm. Certainly, it enhances the risk to real children. The more you mainstream this kind of philosophy and lay out the techniques, you are persuading or inducing somebody who says, well, yeah, it's easier than I thought. I think what we've learned in this Internet age is that there are far more people out there who are attracted to children sexually than any of us thought possible. I talk about one lead to our cyber tipline that led to the arrest of a husband and wife in Texas who went into the child-pornography business. When the Dallas police shut them down, they had 70,000 customers who'd paid $29.95 a month to access graphic images of small children.

McClellan has said that he has "attractions" but he hasn't let it get "out of control."
I am deeply skeptical that true pedophiles are able to do that. We hope that treatment programs and other interventions use the Alcoholic Anonymous model. I think there is abundant evidence that significant subsets are not able to do that. As it relates to child pornography, if you say they should be able to look at them if they didn't make them, our basic message is that these are crime-scene photos. Every time you show that photo you are revictimizing that child, so there's zero. Far better for the people he's reaching to go get treatment rather than learn from him how you can access children embellished by photos of real children.

Where do you think this matter with McClellan is going to wind up?
I think ultimately law enforcement is going to have to assess this and make a decision about whether he has crossed the line. It reminds me of the dramatic and difficult free-speech cases. It reminds me of the case when the American Nazi Party wanted to march through a Jewish community [in Skokie, Ill.]. I think this is of the same order. I would not be surprised whether his intent isn't to test the limits of free speech. My view is that you have a right to swing your arm anywhere you want, limited only by where my nose is. I'm afraid the impacts of his free speech will translate into real action, the harming of real children. He's flaunting it.