California can’t require registered sex offenders to give authorities their Internet names, email addresses and other identifying information they use on the Web, a federal appeals court decided Tuesday.
A three-judge panel of the U.S. 9th Circuit Court of Appeals unanimously ruled that the Internet reporting requirements of Proposition 35, a 2012 measure designed to fight sex trafficking, infringed on free speech rights.
Proposition 35 required registered sex offenders to report to law enforcement their email addresses and all names they use on the Internet and in instant messaging and social media. The law applied not only to chat rooms but also to posts reviewing products or seeking information from other users about a service or a product. The offenders had 24 hours to notify police in writing if they used a new name or Internet provider.
In upholding a lower court’s order, the 9th Circuit said registered offenders who have completed parole or probation were entitled to 1st Amendment protection and should not face major obstacles in engaging in online speech, either publicly or anonymously.
A district judge in San Francisco blocked enforcement of the law shortly after voters passed the Californians Against Sexual Exploitation Act.
“Just 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,” Judge Jay S. Bybee, an appointee of former President George W. Bush, wrote for the panel.
The court said the law’s reporting requirements were ambiguous and failed to ensure that offenders’ Internet names would not be released to the public. The 24-hour notice requirements also were “onerous and overbroad,” the ruling said.
“Sex offenders’ fear of disclosure in and of itself chills their speech,” the panel concluded. “If their identity is exposed, their speech, even on topics of public importance, could subject them to harassment, retaliation, and intimidation.”
In addition to the Internet requirements, Proposition 35 increased penalties for human traffickers, required convicted human traffickers to register as sex offenders and mandated human trafficking training for law enforcement.
Tuesday’s ruling affected only the Internet provisions, which were challenged by the ACLU of Northern California and the Electronic Frontier Foundation, an advocate for freedom on the Internet. The groups represented registered sex offenders who completed their sentences decades ago.
Sex offender registration enacted in other laws remain in effect. Offenders are now required to tell local police where they live and if they move and to provide photos of themselves to law enforcement.
Atty. Gen. Kamala D. Harris, whose office defended Proposition 35, could ask a larger 9th Circuit panel to reconsider the case. Her attorneys were reviewing the ruling Tuesday. The Legislature also could amend the law to try to reinstate Internet reporting requirements in a way that would not violate free speech rights.
Linda Lye, a senior attorney with the ACLU’s Northern California branch, called Tuesday’s decision “a wonderful affirmation that the 1st Amendment protects the speech rights of even unpopular groups.”
“It also recognized and affirmed the importance of anonymous speech for robust public debate,” Lye said.
Lawyers with the Electronic Frontier Foundation also expressed satisfaction.
“The only reason anyone is paying attention or that it is at all controversial is because it involves a group of folks who are heavily stigmatized, " said Lee Tien, a foundation lawyer. “Otherwise it is a standard, solid, 1st Amendment decision.”