Can the Balloon Boy’s Parents Really Go to Prison for a Hoax?

“Poor kid” is right, Emily. The Heenes are not only spectacularly bad parents, but they might soon become inmates in Colorado state prison. In the span of one short weekend, the Balloon Boy drama has turned out to be just that—an elaborate one-act theatrical work put on by the Heene Family Players, staged on television stations and computer screens across the country. We now know that the Heenes' ordeal was just one more attention-grabbing stunt in what appears to be an agonizingly protracted audition for a TLC-style reality television show—the last act in a series of questionable parenting moves.

In response, the state has decided to press felony criminal charges. According to authorities, “among the charges being considered are three felonies: conspiracy between the husband and the wife to commit a crime, contributing to the delinquency of a minor and an attempt to influence a public servant, the last of which carries a prison term of six years.”

Sure, it’s not terribly responsible to lie to the police and whip hundreds of rescue workers into a frenzy, not to mention jerk with the emotions of untold numbers of viewers at home. But do the Heenes really deserve to be put behind bars?

According to the Colorado Criminal Code, a Class Four felony such as this one requires a sentence of two to six years imprisonment. The crucial elements of the most serious offense are “(1) an attempt to influence a public servant (2) by means of deceit ... (3) with the intent to alter or affect the public servant's decision,” where “deceit” is defined as in Webster’s Dictionary as “any trick, collusion, contrivance, false representation, or underhand practice used to defraud another.”

Under this statute, the Heenes’ statements and actions seem to qualify as unlawful deceit. Their hoax conned Colorado police officers, firemen, and naval helicopter pilots, to name a few.

But if this was all an intricate piece of performance art, then couldn’t the Heenes' stunt qualify as constitutionally protected speech under the First Amendment’s Freedom of Speech Clause?

Yes and no.

In Schad v. Borough of Mount Ephraim, the U.S. Supreme Court declared that the First Amendment protects “motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works.” So if the Heenes admit they were merely acting, can these master thespians avoid the slammer? Probably not. The First Amendment protects against censorship, not criminal prosecution. They have the right to perform their twisted audition, but the performance may still run afoul of criminal statutes. You may, for instance, perjure yourself before a jury without being silenced but would still be liable for prosecution. The Heenes’ motivation—whether artistic expression, malice, delusions of grandeur, or perhaps all three—is irrelevant so long as the behavior is criminally proscribed. At this point, their best chance of avoiding jail time is to seek leniency for being first-time offenders.

Instead of a family-friendly TLC reality show, it looks like Richard and Mayumi are headed for a guest appearance on MSNBC’s Lockup. I sure hope they’re not “pussified.”