California Sex Offender Internet Identification Law Held Unenforceable

Digest Commentary First Amendment
By Jesse Goodwin – Edited by Michael Shammas Doe v. Harris, No. 13-15263, 2014 WL 6435507 (9th Cir. 2014). Slip opinion. computer-typing1The 9th Circuit Court of Appeals affirmed a district court ruling granting a preliminary injunction prohibiting enforcement of Proposition 35, the Californians Against Sexual Exploitation (“CASE”) Act. In a unanimous holding, a three-judge panel found that, although California “has long required registered sex offenders to report identifying information,” requiring that they provide written notice of “any and all Internet identifiers,” slip op. at 5–6, within 24 hours to the police likely imposed an unconstitutional burden on protected speech. In so holding, the court noted that the plaintiffs were not “prisoners, parolees, or probationers,” and enjoyed full First Amendment protections. Id. at 13–14. The Los Angeles Times and American Civil Liberties Union provide an overview of the case and analysis of the law. According to the Electronic Frontier Foundation (“EFF”), the CASE Act’s requirements provide that all sex offenders, irrespective of the level of their offense, must notify in writing law enforcement a list of all Internet user names and Internet service providers. Plaintiffs filed suit against the CASE Act the day of its passage, representing a class of registered sex offenders who used the Internet as a platform for anonymous advocacy for sex offender rights.  Slip op. at 7–8. After moving for a preliminary injunction, the official proponents of the CASE Act, Chris Kelly and Daphne Phung, intervened. Id. at 8. The district court, concluding that the Act was content neutral, applied intermediate scrutiny, and found that it was not “narrowly tailored [enough] to serve the government’s important interest in combating … human trafficking and sexual exploitation,” and produced a “chilling effect” on speech Id. at 9.  In affirming the district court’s decision, the Court of Appeals agreed that the CASE Act implicated the First Amendment and that an intermediate level of scrutiny was appropriate. Id. at 22. The decision notes that the Act burdened not only “sending child pornography and soliciting sex with minors,” but also “blogging about political topics and posting comments to online news articles” and “ability to engage in anonymous online speech.” Id. at 17. In addition to finding that the 24-hour reporting requirement was “onerous and overbroad,” because of ambiguities in what sex offenders were required to report and a lack of safeguards against public disclosure of submitted information, the court concluded that the Act “unnecessarily chills protected speech.” Id. at 25. While recognizing that the grant of a preliminary injunction places “some hardship on the state” in its efforts to investigate Internet-related sex crimes, the court maintained that both the balance of the equities favored the plaintiff’s case as well as the public interest. Id. at 36. The EFF praised the decision, finding the law “well-intentioned” but a “stepping stone for the expansion of law enforcement power against other classes of unpopular people.” Bloomberg reports that proponents of the Act argued that the reporting requirement gave law enforcement “a head start to investigate when a parent reports that a child has been communicating with a stranger online and was going to meet that person,” and that the office of California Attorney General Kamala Harris was reviewing the ruling. Jesse Goodwin is a 2L at Harvard Law School.