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Bills push at privacy, speech boundaries

Sun., Feb. 3, 2008

OLYMPIA – Spurred by headline-grabbing crimes and election year politics, Washington lawmakers are targeting familiar criminals – drunken drivers and sex offenders – with plans that raise troubling questions of constitutional precedent, civil liberties and even practical enforcement.

In some cases, lawmakers and the state’s top elected officials acknowledge serious court challenges will follow if their bills become law. But they remain unabashed, even if the chances of surviving court review are questionable.

It is clear that in 2008, some officials have left behind the more typical tweaking of sentences and other punishments, reaching instead into touchy areas of privacy and free speech. Their proposals include bills that would:

“Revive the long-abandoned practice of suspicionless police searches for all cars on a particular stretch of road in hopes of catching drunken drivers.

“Force anyone convicted of several misdemeanors – including animal cruelty and simple assault – to submit a sample of their DNA to a government database.

“Create the crime of viewing child pornography on the Internet – even accidentally – with people urged to report any accidentally viewed child porn to police if they want immunity.

“Ban Web sites that list places where children gather, when the publication is aimed at “arousing or gratifying sexual desire” – which treads very close to violating the First Amendment.

Looming in the background is the November election, when the entire state House, half the Senate, and all statewide elected officials – including Gov. Chris Gregoire and Attorney General Rob McKenna – will be up for another term.

“You get votes for passing a bill like this,” said Mark Prothero, a defense lawyer who testified against the DNA database expansion. “And two years later, when the Supreme Court throws it out, no one comes and takes your votes away.”

The expansion of the DNA database is a worry for defense lawyers and civil libertarians. The bill is meant to target sex offenders but also includes more mundane misdemeanors such as second-degree animal cruelty and fourth-degree assault.

The low-level assault convictions particularly worry defense lawyers – someone can get that on their record for an angry shoving match, a punch that misses its mark or school-bus fight, lawyers said.

“If there were a list of the most popular crimes ever, that would probably be at the top of the list,” said Amy Muth of the Washington Association of Criminal Defense Lawyers.

Rep. Chris Hurst, D-Enumclaw, a former police detective, doesn’t doubt the broader DNA database will be challenged in court. But he downplayed the civil liberties risks.

“What’s the harm to a person that never comes back in the system again? It’s not like they’re being labeled or named,” Hurst said. “What’s the danger if it sits there for the rest of their life?”

Another measure targets one particularly bizarre case: that of Jack McClellan, a self-described pedophile who said he never physically acted on his attraction to young girls but maintained Web pages detailing areas frequented by children.

That behavior is now being targeted by Sen. Eric Oemig, D-Kirkland, who was frustrated that McClellan couldn’t be prosecuted because of free speech protections.

“I said ‘Free speech, baloney. This is terrorist speech,’ ” Oemig said.

Behavior like McClellan’s is obviously troubling, Muth said. “But at the same time … legal behavior is going to be encompassed within the scope of this law,” she said.

Examples like these leave Prothero and others shaking their heads. But at the same time, he said, it’s clear lawmakers have to push for what the public wants, and what gets them re-elected, “and leave it to the courts to be the bad guys and say ‘You’ve gone too far.’ “

“Generally, they kind of cater to the whims of the popular vote, whereas the Supreme Court caters to the constitution,” Prothero said.


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