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ACLU, EFF Sue to Block Prop 35

By Robyn Hagan Cain on November 12, 2012 | Last updated on March 21, 2019

Tuesday, California voters approved Proposition 35, a measure to increase fines and prison sentences for sex trafficking, as well as require convicted human traffickers to register as sex offenders and disclose internet activities and identities, the Huffington Post reports.

The measure would affect approximately 73,000 currently-registered sex offenders in the state, and require human trafficking convicts to register as sex offenders.

At first blush, it seems like a no-brainer. Human trafficking is bad, and we should punish it. But a number of groups opposed the proposition, citing concerns like a lack of victim restitution, costs, unintended consequences for those who willingly choose to be sex workers, and privacy concerns.

Wednesday, the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) sued on behalf of two registered sex offenders to stop enforcement of the law, arguing that the proposition would stifle sex offenders' First Amendment rights, Wired reports. The same day, District Judge Thelton Henderson temporarily blocked the law pending further litigation.

Specifically, the suit challenges the constitutionality of two newly-enacted California Penal Code sections, which require registered sex offenders to "immediately" provide the police with lists of "any and all Internet service providers: and "any and all Internet identifiers established or used" by the registrant. The plaintiffs alleged that their association and free speech rights would be irreparably harmed under the law.

Judge Henderson agreed, finding that the plaintiffs had raised "serious questions about whether the challenged sections of the CASE Act violate their First Amendment right to free speech and other constitutional rights," and noting that the balance of hardships tipped "sharply in favor" of issuing a Temporary Restraining Order (TRO).

California Attorney General Kamala Harris has until November 13 to file the state's opposition to a preliminary injunction against the CASE Act. Harris will likely argue that the Act was narrowly-tailored and advances significant government interest unrelated to the suppression of speech.

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