NEW YORK — Law enforcement officers investigating sexual predators can pose as children to catch their prey, a federal appeals court ruled Monday, saying the First Amendment provides no refuge for such criminals.
The ruling came in the case of Frank Gagliardi, who was convicted of attempting to entice a child to engage in prohibited sexual activity. His lawyers argued the law used to convict him required an actual child victim.
The 2nd U.S. Circuit Court of Appeals said requiring police to use an actual child as a decoy would significantly impede legitimate law enforcement and that the law itself was clear that an actual child was not required.
The panel also rejected his argument that the law "impermissibly suppresses fantasy speech with adults who happen to be posing as minors." The court said it had already concluded in previous cases that speech is not protected by the First Amendment when it is the "very vehicle of the crime itself."
The panel noted that its findings were in line with similar decisions by six other appeals panels across the country.
Gagliardi was 62 in July 2005 when he began chatting with an adult government informant who posed as a 13-year-old, authorities said.
FBI agents arrested him in October 2005 as he waited in his car, believing he was there to meet two 13-year-old girls. The girls were actually agents posing.