By Darren Smith, Weekend Contributor
Plaintiffs representing unnamed registered sex offenders and sponsors of the non-profit California Reform Sex Offender Laws won a victory in their quest to declare unconstitutional the Californians Against Sexual Exploitation Act on free speech grounds.
The act, among other matters, requires registered sex offenders to within twenty four hours submit the “internet identities” and Internet Service Providers (ISPs) they use to engage in conversation and participation in the experience of the Internet, amending California Penal Code § 290.015(a)(4)–(5).
The court upheld a district court judgment granting an injunction against the State of California enforcing the statute which was filed by plaintiffs the day the law was effective.
The Ninth Circuit cited curtailment to free speech rights after the offenders were released from prison who were then afforded the full protection of the first amendment and that such provisions of the law would amount to a chilling effect of the free speech rights of this class of individuals.
In 2012 voters in California passed Initiative 35, the CASE Act that added provisions to the California Penal Code’s Sex Registration requirements relating to Internet activities of those subject to the act. The act required registered sex offenders to submit “[a] list of any and all Internet identifiers established or used by the person.” In addition, the act provides:
If any person who is required to register pursuant to the Act adds or changes his or her account with an Internet service provider or adds or changes an Internet identifier, the person shall send written notice of the addition or change to the law enforcement agency or agencies with which he or she is currently registered within 24 hours. The law enforcement agency or agencies shall make this information available to the Department of Justice.
The appellees represented a class of registered sex offenders who regularly use the internet to advocate anonymously on behalf of sex offenders and to comment on news articles, forums and blogs. They argue the act infringes on their First Amendment guarantee of free speech and assembly and on Fourteenth Amendment grounds for unconstitutional vagueness.
The District Court opined that the act did not satisfy a narrowly tailored requirement to serve the government’s interest in combating sex trafficking and exploitation because “the challenged provisions, when combined with the lack of protections on the information’s disclosure and the serious penalties the registrants face if they fail to comply with the reporting requirements, create too great a chilling effect to pass constitutional muster.” The District Court further concluded that the provisions of the act causes an irreparable injury and that “the balance of balance of equities and the balance of the public interest weigh in favor of granting injunctive relief.”
The District Court noted that both sides of the case agree that “speech by sex offenders who have completed their terms of probation or parole enjoys the full protection of the First Amendment.” But the Ninth Circuit panel extended this by adding that the plaintiffs in the original hearing belonged to a special category in that they were neither on probation or parole. Both persons involved were convicted of sex crimes more than twenty years prior. Although they were still required to register as such they were no longer in the “continuum” of state-imposed punishments. The court cited that in Williamson v. Gregoire a sex offender registration “is more properly characterized as a collateral consequence of conviction rather than a restraint on liberty.” As such, they are no longer subject to criminal penalty with regard to lawful speech activities.
The state argued before the Court that there can be limits on free speech as a result of accepted compliance of the laws, however the Panel concluded that the requirement of twenty four hour notice to the state to engage in speech curtails this class from engaging in free speech by making such burdensome and their willingness to speak on the Internet.
The Panel also held that the effect of the law burdened sex offenders’ ability to engage in anonymous online speech. The US Supreme Court held that requiring disclosure and speaker regulations are subject to First Amendment scrutiny citing McIntyre v. Ohio Elections Commission. The Court held In McIntyre that the Ohio statue requiring leafleters to put their names on campaign literature “undeniably impeded protected First Amendment activity. The Court explained that an author’s decision to remain anonymous, as with omissions or additions to the content of a publication, is a protected aspect of free speech.
The court also noted that the compliance with the reporting requirements for sex offenders subject to the act would also be chilling on free speech in that in order to participate in free speech under a particular user name or identity, the person would be required to complete written forms, travel to the post office, purchase stamps, and deposit into the mail the required paperwork. Such a burden would likely curtail an aspect of speech in that the state has burdened the speaker unconstitutionally and acted in a manner to cause fear in the minds of sex offenders of punishment via criminal prosecution for engaging in a protected activity.
The Panel did note that the state could argue a genuine interest in curtailing speech that caused criminal violations of sex trafficking and exploitation that is easily accessed through the conduit of the internet. But, the CASE Act failed to narrowly tailor the law by limiting a class of individuals from all speech otherwise.
It is important to recognize that constitutional protections must be afforded to all regardless of the public having a perception of certain classes having a pariah reputation. The Court held once again that the general sense of free speech should not be stopped by the possibility that citizens might potentially engage in acts deemed to be offensive to the state.
By Darren Smith
Doe v. Harris, Ninth Circuit Court of Appeals (pdf 13-15263)
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