Sex Offender Free Speech Ruling Upheld

A federal appeals court has blocked enforcement of a voter-approved California law that required registered sex offenders to disclose their Internet identities and online accounts to police so officials could track them.

The 9th U.S. Circuit Court of Appeals Tuesday upheld a preliminary injunction against Proposition 35, issued January by U.S. District Judge Thelton Henderson in San Francisco, saying the law could chill the rights of plaintiffs to speak out anonymously of public issues.

Henderson ruled in January the law’s effort to combat sexual exploitation through registration requirements swept too broadly.

The appeals court affirmed saying the law was not narrowly tailored enough and because it imposed a substantial burden on sex offenders’ ability to engage in legitimate online speech anonymously and that it  “unnecessarily chills protected speech.”

“Although we appreciate the state’s significant interest in protecting its citizens from crime, nothing in the record suggests that enjoining the CASE Act would seriously hamper the state’s efforts to investigate online sex offenses, as it can still employ other methods to do so,” wrote Judge Jay Bybee.

The law requires registered sex offenders to report all identifying information to police, including address and current photographs.  It also requires a list of any and all Internet identifiers established or used by the person and the offenders’ Internet service providers.

The lawsuit was filed by two California sex offenders and the American Civil Liberties Union following the passage of the anti-human trafficking measure, Proposition 35, which received 83 percent of the vote.

Prop. 35 was approved by voters in 2012.

California has over 75,000 sex offender registrants, excluding those in prison or who have been deported, according to the state Department of Justice records.

The two unidentified male sex registrants argued the act as overbroad on its face.

The law required anyone required to register as a sex offender to notify police within 24 hours if they change or add to their Internet identifiers, service provider or accounts.

The law was temporarily enjoined on Nov. 7, 2012, immediately after its passage, barring implementation.

The appeals court held Henderson did not abuse his discretion in granting the injunction.  The panel found public interest favors the exercise of First Amendment rights.

Bybee, a conservative Republican appointee of President George W. Bush, was joined by Judge Mary Schroeder, a President Carter appointee and visiting Judge Robert TImlin, of the federal court in Los Angeles.

Case: Doe v. Harris, C12-5713TEH




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