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Calif.'s Sex Offender Internet Reporting Requirements Unconstitutional

By Mark Wilson, Esq. on November 18, 2014 | Last updated on March 21, 2019

Back in 2012, Californians decided to double down on punishment for registered sex offenders. Proposition 35 required sex offenders to provide law enforcement with a list of their "Internet identifiers," which could include email addresses, Facebook accounts, or even a user name on an obscure online forum. (Note that Prop. 35 was largely about increasing penalties for human trafficking; the part about sex offender Internet accounts was barely ever mentioned.) Failure to provide law enforcement with written notice of additions or changes to these identifiers, within 24 hours, would subject the offender to criminal penalties.

On the day the proposition took effect, several registered sex offenders sued to block the law's enforcement on First Amendment grounds and on the ground that it was void for vagueness. The district court enjoined enforcement and the Ninth Circuit affirmed.

You're a Free Person ... More or Less

While it's well established that people on probation or parole lose a few rights, there's "yet another category": registered sex offenders. The court pointed out that the plaintiffs in this case "were convicted of sex-related crimes more than two decades ago and have completed their terms of probation and parole." That means they're not really subject to the same rationale of rights-limitation that parolees are probationers are. And, notably, failing to update one's sex offender information "constitutes a new criminal penalty altogether."

With that in mind, let's look at the First Amendment issues. The whole range of First Amendment scrutiny is on the table because the court just determined that sex offenders aren't limited in the way parolees or probationers are. This isn't a straight First Amendment issue, but the law does impose burdens on exercising one's First Amendment rights, so the question is whether those burdens are reasonable.

As you might have guessed, the burdens aren't. "[J]ust as the Act burdens sending child pornography and soliciting sex with minors, it also burdens blogging about political topics and posting comments to online news articles," the court said. Oh, and it also burdens anonymous speech, which is separately protected as a class of speech.

I'll Have the Intermediate Scrutiny

So what level of scrutiny are we using today? Intermediate scrutiny, because the law is content-neutral and doesn't use speaker discrimination as a subtle method of content discrimination. While the state has a legitimate purpose (to prevent online sex offenses and human trafficking), the law "burden[s] substantially more speech than is necessary to further the government's legitimate interests."

It does this in three ways: By not making clear what offenders have to report (what the heck is an "Internet identifier"?), by not ensuring the reported information is secure from being leaked, and by having an "onerous and overbroad" 24-hour reporting requirement.

The Ninth Circuit thus joins a considerable body of work showing that increasingly burdensome requirements on sex offenders do nothing to make anyone more safe -- but it does make re-arresting sex offenders easier.

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