March 18, 2011

No Fight After All

Last week, I wrote about a guy in Michigan who, after posting a video on Youtube that appeared to show him signing bawdy songs to grade schoolers (and their edited in reactions), was grossly overcharged for producing child pornography.  At the time, there was talk of a plea in the air, and not it appears that a deal has been struck.

Emory pleaded guilty to a oddball statute that, while a felony, can be reduced to a misdemeanor if he doesn't screw up on probation.  I've seen situations where charges are, essentially, held in abeyance pending something similar (they then go away completely), but never something that worked like this.  I can only imagine the confusion these kind of charges cause when doing a criminal history calculation under the Guidelines.

The charge Emory pleaded to is not related to child porn and is not otherwise a sex offense, to he won't be required to register as a sex offender.  Still, 60 days in jail, 200 hours of community service, and two years probation seems awfully harsh for what was, at worst, a prank done in poor taste.

Besides, as Eugene Volokh points out, it's not at all clear exactly how broadly that offense could be construed and whether it would survive close analysis under the First Amendment.  We'll never know, at least not in this case, since entering the plea extinguishes all those potential issues.

Still, I know if I were professional right-wing muckraker/serial fabricator James O'Keefe, I'd stay the hell out of Michigan.

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