9th Circuit to Hear Prop 35 Sex Trafficking Case?

Last November, California voters overwhelmingly approved Proposition 35, also known as the CASE Act. Nearly 81 percent of voters supported the initiative.

Proposition 35 placed new restrictions on those who traffic in humans, either for labor or for the sex trade. One of those restrictions led to an injunction by the district court, and could lead to the Ninth Circuit.

What's the issue? Free speech, naturally.

While admitting that the information mandated by the initiative could come in handy in preventing sex trafficking and other related sex offenses, the district court judge also felt that the statute's lack of limitations on the use of the data and protections for offenders created a chilling effect on speech. In addition, the severe penalty for failing to disclose - up to three years in prison - strengthens the chilling effect.

In making its decision to issue an injunction, the court compared the law at issue here with two similar laws: one in Utah, which was upheld as constitutional, and one in Georgia, which was not.

Utah

In Doe v. Shurtleff, the Utah legislature originally passed a law quite similar to the CASE Act, which required offenders to turn over identifiers as well as passwords, with few restrictions on the use of the data. After the district court issued an injunction against enforcement, the Utah legislature stepped in, removed the password requirement, and added restrictions on the use of the data.

The changes were enough to lead the Tenth Circuit to uphold the law in 2010.

Georgia

Georgia passed another CASE-like law, which required the disclosure of usernames, within 72 hours of adding or changing one's identifier, in 2008. The district court cited Shurtleff before issuing an injunction against enforcement due to the law's restrictions.

California

It's hard to see much difference between the CASE Law, Georgia's sex offender registration law, and Utah's pre-amended law. Nonetheless, Attorney General Kamala Harris filed a notice of appeal early last month. We'll see if she can argue that the law was sufficiently narrowly tailored to pass intermediate scrutiny.

Related Resources:

• ACLU, EFF Sue to Block Prop 35 (FindLaw's California Case Law)
• Prop. 35: Increases Sex and Labor Trafficking Penalties - Part I (FindLaw's Los Angeles Criminal Law Blog)
• Prop. 35: Increases Sex and Labor Trafficking Penalties - Part II (FindLaw's Los Angeles Criminal Law Blog)