Ninth Circuit Upholds Preliminary Injunction Against Enforcement of California’s CASE Act As Curtailing Free Speech Of Registered Sex Offenders

By Darren Smith, Weekend Contributor

200px-US-CourtOfAppeals-9thCircuit-Seal.svgPlaintiffs 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.”

California flagThe 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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12 thoughts on “Ninth Circuit Upholds Preliminary Injunction Against Enforcement of California’s CASE Act As Curtailing Free Speech Of Registered Sex Offenders”

  1. Good. These people will pay for these actions for the rest of their lives. Conviction for these deeds will always be with these people.

  2. Everyone is entitled to free speech. If anyone’s or any group’s free speech is curtailed legally, then are any of us safe?

  3. Pedophilia is permanent. There is no treatment that negates the desire. Once a pedophile attacks a child the only way to protect children from them is life in jail. I know, I can hear the yelling. But sometimes you must accept the facts. I don’t think life in prison has to be the punishment. But life controlled in some way to keep them off our streets is the only way to keep it from happening again. Otherwise, in time it will happen again. They have no control over themselves. There is no successful rehabilitation or drug program to stop it.

    1. Sandi – not all sex offenders are pedophiles. Depending on the state, if the age difference is more than 2 years between you and your girl friend and you have sexual intercourse, you can be convicted and tagged as a sex offender for the rest of your life. Now, do you think that person should lose their internet privileges?

  4. Given the trend toward prosecutorial overreach in the US, where everyone becomes a ham sandwich, restricting the power of the state after time served seems wise.

  5. One problem in Illinois is the broad brush application of the sex offender registry. Consensual sex between high school peers can result in one young adult being charge and a conviction of a misdemeanor would require registry and placed on the same list as a 50 year old child murdering. These crimes are not even in the same universe but are treated the same when it comes to sex offender registration.

    Sex offender registration is long overdue for revision

  6. For those that are curious, here is the next step, expect it in a state such as Texas, Mississippi or some other state with a similar cultural bent. An algorithm (sic) will be created that, when a certain pattern of specific worlds can be “read” for any of the designated ex cons (who will have to register privately, at first, as part of their release), will cause them to be “outed” sufficiently such that their communication path would be subject to registration and publishing. The Supremes will hear the controversy in 6 years after a series of mixed applications of the reasonable relation, rational goal, analysis, with the appropriate allowance for the freedom at issue, perhaps, not coincidentally, expressed in the first post document creation thought of the “founders” (1st Amendment). It really is an amazing process, witnessed by more and more, courtesy of mediums such as this.

  7. Much as I disagree with the Ninth Circuit on just about everything, I do think they got this one right.

  8. This is one of those times where I honestly have trouble living by the rights of Free Speech. I grudgingly admit that Darren is right. You can’t limit speech.

    I hope the State goes back to the drawing board and comes up with a workable law to protect kids from internet predators.

    The problem with pedophiles is that their sexual attraction does not dissolve the moment they are released from prison. It’s not like auto theft where prison time can knock the desire to steal right out of them. Or deciding to better their life. That hideous compulsion is still there. I mistrust pedophiles until they day they die. I wish the penalty for pedophilia sexual assault was life on an inescapable island.

    However, I do think the laws need to be amended to prevent 18 year olds dating 16 year olds from getting lumped in with the Sanduskys.

  9. What the convicted perps need to do is begin sending emails to all the folks in government such as the perps who passed that law. Then report them! Then post the report on the internet on some website.

  10. However, if a sex offender is deemed non predatory, and engages in sexually suggestive banter, and is outed, he/she[remember all those female teachers] needs to have these tough sanctions immediately place upon them.

  11. Great piece. Sex offenders do pose a unique problem in our culture. The incorrigible ones use the freedoms this great country provides to prey upon the weak. Predators, in the animal world and ours, separate the vulnerable, the young, the needy, from the protection of the herd. Then they pounce. While sex offenders have always posed a threat, the internet helped grow their predatory skills exponentially. The key, as I see it, is to identify the really bad ex offenders, the incorrigibles. For them, the lost of their freedom of speech bothers me not one iota. But, the one time offenders, who have shown no obsessive compulsion to prey, should not be subject to these tough sanctions.

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