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By Lance Rogers
Nov. 18 — A 2012 California voter initiative requiring registered sex offenders to disclose all their e-mail addresses, screen names, social networking user names and other online activities to local law enforcement likely violates the First Amendment, the U.S. Court of Appeals for the Ninth Circuit ruled Nov. 18.
“Although this is not what some might call the classic anonymous-speech case, where speakers allege they are required to disclose their identities directly to their audience, we conclude that the Act nevertheless chills anonymous speech because it too freely allows law enforcement to disclose sex offenders’ Internet identifying information to the public,” the court said in an opinion by Judge Jay S. Bybee.
Lawyers who filed the class action complaint on behalf of the John Doe plaintiffs hailed the decision as a victory for First Amendment rights.
“We're glad the court recognized that everyone, regardless of their criminal history, should have the opportunity to speak freely and anonymously,” Hanni Fakhoury, of the Electronic Frontier Foundation, San Francisco, told Bloomberg BNA.
“While the law may be well-intentioned, its broad language opened the door for the government to chill free speech,” Fakhoury said. These types of restrictions often serve as a “stepping stone” to expand law enforcement power against other classes of unpopular people, he said.
Linda Lye, of the American Civil Liberties Union Foundation of Northern California, told Bloomberg BNA that the decision “recognizes the importance of anonymity in fostering robust political debate.”
“The portions of Prop 35 that unconstitutionally limit what people say online won't help us end human trafficking,” she said.
The Californians Against Sexual Exploitation Act included an amendment to Cal. Penal Code § 290.015(a)(4), (5), which now requires all registered sex offenders to surrender a list of their Internet service providers and “any and all Internet identifiers” they use.
The act further states that if a person covered under the reporting provision switches providers or changes any of the monikers he used, he must send written notice of the change within 24 hours “to the law enforcement agency or agencies with which he or she is currently registered.”
The ACLU and the EFF sued to stall the act's implementation, and a federal district judge granted a preliminary injunction. The Ninth Circuit affirmed, concluding that the plaintiffs are likely to succeed on their claims that the law infringes protected First Amendment activity.
Registered sex offenders who have completed their terms of probation and parole enjoy the full protection of the First Amendment, which includes the right to anonymously engage in legitimate online speech, the court said.
As a threshold point, the court rejected a claim that the CASE Act has nothing to do with First Amendment activity.
“To the contrary, the CASE Act directly and exclusively burdens speech, and a substantial amount of that speech is clearly protected under the First Amendment—just as the Act burdens sending child pornography and soliciting sex with minors, it also burdens blogging about political topics and posting comments to online news articles,” it said.
Applying intermediate level scrutiny to the law, the court agreed with the district judge's conclusion that the CASE Act isn't narrowly tailored to serve the government’s legitimate interest in combating human trafficking and sexual exploitation because “the challenged provisions, when combined with the lack of protections on the information’s disclosure and the serious penalty registrants face if they fail to comply with the reporting requirements, create too great a chilling effect to pass constitutional muster.”
This nation has a respected tradition of anonymity when it comes to advocating political causes, the court said.
Much of the chilling effect has to do with the ambiguity in the law, the court said.
For one thing, the act doesn't make clear exactly what it is that sex offenders are required to report, the court said. The district judge construed the act as requiring offenders to share only those identifiers used to engage in “interactive communication,” not those used for shopping or reading content. But the statutory language isn't that limited, the appeals court said.
The law is also flawed in that it sets no standards for deciding what information will be released to the public and gives law enforcement unbridled discretion to release e-mail addresses and user names, the court said.
It is conceivable, if not predictable, that law enforcement personnel might conclude that this information ought to be released so people can protect themselves and those in their community from communicating with a sex offender, it said.
The fear of disclosure in and of itself chills protected speech, the court said.
“If their identity is exposed, their speech, even on topics of public importance, could subject them to harassment, retaliation, and intimidation,” it said.
Finally, the court found that the act's 24-hour update requirement impedes protected First Amendment activity.
Under the act, sex offenders must register within 24 hours of using a new Internet identifier. This burden is particularly onerous for sex offenders who live in remote areas and requires registrants who want to communicate with a new identifier to first assess “whether the message they intend to communicate is worth the hassle of filling out a form, purchasing stamps, and locating a post office or mailbox.”
Not only is this reporting requirement onerous, it is also applied across the board to all registered sex offenders, regardless of their offense, their history of recidivism or any other relevant circumstance, the court said.
Judges Mary M. Schroeder and Robert J. Timlin, sitting by designation, joined the opinion.
James C. Harrison, of Remcho, Johansen & Purcell LLP, San Leandro, Calif., and Robert D. Wilson, of the California Attorney General's Office, San Diego, argued for the proponents of the CASE Act. Michael T. Risher, of the American Civil Liberties Union Foundation of Northern California Inc., San Francisco, argued for the class-action plaintiffs.
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