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Uncivil Disobedience

December 25, 2009

What do Henry Hill, Son of Sam, Rod Blagoyevich, and Balloon Boy’s parents (the Heenes) have in common?

Why, they are all constitutional freedom fighters of course!  See, most of the media depicts the Heenes as exploitative, fame-seeking hoaxsters, but I believe they had a different angle.  And their recent sentence (a relative slap on the wrist of 60 days for the husband and 20 days for the wife out of a maximum 6 years for the felony and 1 for the misdemeanor) gave them the perfect opportunity to take their cause all the way to the Supreme Court.

Most news outlets are focusing on the jail time, but what is significant to me is the Fort Collins judge’s decision to bar the Heenes from collecting or seeking any profits connected to the hoax while they are on probation.  A probation lasting 48 months (something like 125 in meme years).

That means no book deal. No exclusive interviews on Oprah. Putting “I’m the Balloon Boy Dad” on a resume or application for a reality show (the couple appeared on Wife Swap, which is honestly punishment enough) might even land the couple in hot water.

Like the other aforementioned American Anti-Heroes, the Heenes clearly pulled this stunt to test the limits of freedom of expression.  They want answers to the tough questions. Specifically, can criminals profit from misdeeds? Even more specifically, is it constitutional to prevent criminals from profiting off stories of legal deeds that people only care about because of their notoriety?

They wouldn’t be the first to pull one over on the courts.  After working as a ‘wiseguy’ for decades in the Gotti family, Henry Hill (yes, the one from Goodfellas) finished his life’s work as an underground Constitutional scholar when he finally realized his dream of taking a 1st Amendment case to the Supreme Court in 1991.

In Simon & Schuster v. Crime Victims Board, the Court held unconstitutional the Son of Sam laws passed to prevent the titular serial killer from enriching himself with the proceeds from the stories of his murders. Justice O’Connor wrote that the law, which forced publishers to create escrow accounts out of the criminal’s share of the profits from which civil litigants could collect damages, unduly restricted free speech.  Also, I think she had a schoolgirl crush on Ray Liotta. But who didn’t in 1991, am I right?

In response, those scrappy state legislatures decided to circumvent the Court’s ruling by passing laws not just restricting speech specifically, but any economic profit derived from crimes.  But there has yet to be a case to test this new regime. Even in 1991, only a handful of high-profile criminals had been singled out for enforcement, likely to secure some district attorney’s re-election (the laws weren’t used on the Son of Sam killer, Berkowitz, because he gave profits to his victims’ families voluntarily – bless his heart).

What strikes me as odd here is the crime committed by the Heenes: Colorado Criminal Code 18-8-306 “attempting to influence a public servant,” where the influence was based on deceit.

While they certainly did attempt do so, I’m not so sure this influence is the part of the story people really want to read about. I’d like to hear about the construction of the balloon, the motivations behind the hoax, their plan for dealing with the media (not crimes, thank you Cuban government), and the absurd conversation that must have gone down with the son.  I’m also not sure my life could truly be called complete without the Official Balloon Boy coffee mug I need to replace the knockoff versions I bought from a 4chan garage sale.

True, without calling the police and launching the search party, no one would have cared about the balloon boy story. I suppose it depends on how broadly you want to define the deceit – does it cover the act of lying, or the true facts that, since withheld, made the lie a lie?

As O’Connor wrote in her opinion, the Son of Sam laws would have discouraged the publishing of Henry David Thoreau’s Civil Disobedience and The Autobiography of Malcom X, among other classic works describing the criminal activity of the author.

Would it have been legitimate for a judge to have ordered Thoreau to spend 15 days in jail for his tax evasion, and then order him not to collect profits on his seminal work for the entirety of his probation? Using the above reasoning, we’d have to bar the philosophy Thoreau derived from his experience in addition to the description of his prison conditions (stop the presses on Paris Hilton’s “Metaphysics Under The Influence”).

The Colorado court isn’t just limiting the Heenes’ speech about the activities directly relating to their crime. It’s likely imposing the sentence as a deterrent against people using criminal activity to gain notoriety and self-promotion.

But if we really wanted to punish that, would we be willing to silence Johnny Cash? His outlaw image (backed up by several one-night stints in jail for badassery and not-giving-a-fuck, misdemeanors in most jurisdictions) not only made him one of the most successful country singers ever, it also informed much of the content of his music.  If Johnny Cash burns down a federal forest and a court bans him from singing about it, is there still a Heaven?  I think not. (To a lesser extent, see The Lone Rangers triple-platinum hit Live In Prison).

Blago and countless other scoundrels might be interested in resolving these questions.  Perhaps the real answer is that the Heenes, if they really only cared about getting the truth out there, should be willing to give interviews for free.  Thoreau probably wouldn’t have cared about profit – he lived on a pond by himself for chrissakes.  Dude didn’t even have cable.  Or Zhu Zhu pets.

Something tells me that without the promise of heaps of Zhu Zhu pets, or next-best, money, most of these true crime stories would simply never be told. Publishers already fear legislative reprisal and subjects could lose interest due to the massive amount of time proper interviews for these books can take.

I’m just proud that we live in a country where people are willing to lock their offspring up in a dusty attic for days in order to further their careers… as advocates for our civil liberties. God bless the Heenes, and Merry Christmas to all uncivil disobedients, everywhere!

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