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Prop 35: Preliminary Injunction granted

Late Friday, a federal judge granted a preliminary injunction in the lawsuit EFF filed with the ACLU of Northern California (ACLU-NC) that challenges the unconstitutional provisions in Proposition 35, a ballot measure passed by California voters in November that restricts the legal and constitutionally protected speech of all registered sex offenders in California.

EFF and the ACLU-NC filed the lawsuit the morning after Election Day, noting that although Prop 35 is ostensibly about increasing punishment for human traffickers, it’s beset with problems. The biggest was its requirement that registrants turn over a list of all their Internet identifiers and service providers to law enforcement. The court granted a temporary restraining order hours after the lawsuit was filed. And today, the court granted the preliminary injunction, finding we were likely to succeed in showing that Prop. 35 violated the First Amendment. Full Article

Court Order: Prop 35 – Preliminary Injunction

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  1. Joe

    This is great news! Thank you to all – ACLU, EFF, CA RSOL etc!

    • Janice Bellucci

      You are very welcome! It is indeed a good day when a judge recognizes that registrants are entitled to civil rights. There are two statements in the decision which I believe to be the most important. One of those statements is “A requirement that sex offenders report to the government all communications on blogs and websites ‘puts a stake through the heart of the First Amendment’s protection of anonymity and deters faint-hearted offenders from expressing themselves on matters of public concern.'” The second statement is “Plaintiffs (registrants) enjoy no lesser right to anonymous speech simply because they are ‘unpopular’.”

      • DZ

        I smiled when I read that second quote. Was a great relief to see. Gives me some hope that a future in this country might still be possible.

      • Joe

        Plaintiffs (registrants) enjoy no lesser right to anonymous speech simply because they are ‘unpopular’.

        ===> Plaintiffs (registrants) enjoy no lesser right to ________ simply because they are ‘unpopular’.

        Fill in the blank: choice of residency, presence in public areas, holiday enjoyment, library / museum use, etc…

  2. Ernest

    Wow what awesome news. I thank God this turned out this way. I live in Lancaster where they are constantly trying to make life a living hell for 290’s. This is one step closer to putting The City of Lancaster in it’s place. By the way if you ever hear of available housing for a 290 in Lancaster please let me know soon as I am about to be homeless again.

  3. James

    This is some very welcome news. Thanks for all you do, Janice, and everyone else involved!

  4. A Friend

    The Constitution Works…the Constitution Works …!!!…Thank God …

  5. A Friend

    Outstanding work by the ACLU…EFF…& Janice BELLUCCI……thank you…!…
    Defending and protecting the Constitution for everyone …EVERYONE …
    OUTSTANDING …!!!!

  6. Tired of hiding

    Great news!

    Hope this momentum keeps rolling in 2013 and we finally see some sanity so good people can get on with their lives as others who have made mistakes are allowed to do.

  7. JM

    How refreshing to wake up to some good news! Thanks to all involved, and thank God the ACLU of Northern Ca. finally came to our rescue. It restores my faith.

  8. Joe

    Kind of ironic how Chris Kelly profited financially (immensely I would speculate) as an Executive of Facebook, which was instrumental in providing the major platform for the offending behavior in the first place. Plus heavy marketing to the potential ‘victim’ pool and an inability or unwillingness to enforce their own TOS (age minimum).

    Now, as an Ex-Executive, is he looking to profit again? Politically? Financially some more?

    • Eric Knight

      Actually, you are correct in your statement more than you know.

      The entire proposition was not directed primarily toward “child trafficking.” The laws against children being kidnapped and sexually abused are quite strict with huge penalties, without the need for a state proposition. The only component that would have had a huge impact was, in fact, the Internet identifier clause. Chris Kelly donated over 2 million dollars of his own money for this proposition. Make NO MISTAKE: This clause was Kelly’s ONLY…repeat; ONLY… focal point in this effort.

      Undoubtedly, his advisers must have briefed him on the actions of the state in two previous attempts to make laws regarding the registration of all Internet identifiers to the government. Now, the purpose of a legislature is to make law, but before such laws can be made, to filter them first against the restrictions of both the US and state constitutions to determine feasibility and defense of such laws. In statewide referendums, the people vote directly for the law. While such referendums are actually good for economic issues, they have a horrendous record in creating laws that actually introduce deprivations of liberty onto citizens. However, Kelly was banking on the fact that, because over 60% of RSO’s are under the poverty line, no effort would be made to effectively refute the law.

      He was wrong. There was CA RSOL noting the law was against the constitution. Had CA RSOL been around when Jessica’s Law was passed, undoubtedly THAT would have been challenged just as immediately as this law. For now, we will take this temporary victory and prepare for the state’s onslaught at the 9th Circuit.

    • Eric Knight

      Adding to what I wrote above about Chris Kelly:

      Now why would Kelly spend over $2 million of his fortune on this proposition, specifically trying to get the email thing passed? Because he has a lot of computer company contacts that would get the huge, juicy contract to run the email registration component of California’s sex offender registry, and he was poised to make tens of millions of dollars of profit. In short, the 2 million he used to fund the proposition was an INVESTMENT into a “sure thing.” Otherwise, it makes absolutely NO SENSE why he would put that vast amount of money to hide his intent among a proposition that most sheeple would vote for anyway.

      My most favorite comment from a few years ago: “Of COURSE 70% of the state voted to ban registered sex offenders from living within 2000 feet of a school. Hell, 70% of the state would vote for sex offenders to walk with a live chicken on their head.”

      • Joe

        @Eric Knight – Totally agree on all on both your comments. Except to add that this might serve as a springboard to further political office, after the failed attempt at AG in 2010.

        The first time reading the text of Prop 35, the internet portion totally smacked of the stalled (and dead?) SB 57 – except on speed, crack or steroids. The requirements of the Prop 35 clause are identical to the failed Senate Bill, except the reporting period being shortened to 24 hours, from 30 days.

        http://www.aroundthecapitol.com/Bills/SB_57/20112012/

        That in and by itself should be a clue as to intent… when does anything in Government happen in a day or less?

        • Eric Knight

          While I don’t doubt he would be interested for AG in the future, he first has to get past the person who is currently trying to defend his proposition. Of course, he could bri-…er, convince current AG Harris to take a position with one of his companies that would be running the email identifier registry component, but I digress.

          However, I truly don’t think that Kelly has AG aspirations. He actually supported Harris over Cooley in the election. While there may be a quid pro quo deal down the road, such as convicing Harris to decline to run in a particular year to run one of his Internet registry recording subsidiaries, I think that Kelly’s goal is actually far more sinister.

          Let’s put this in perspective.

          We ALL know the story of the Nazis and how they controlled people. They FIRST started with the sex offenders.

          So in the same manner, Kelly knows that if he wants to control a process in which restricting people’s information needs via Internet must FIRST start with a “no-brainer”…restricting registered sex offenders’ activities. From there, develop the infrastructure to manage this control. Then, as time moves on, there may be more and more societal changes that would “justify” controlling OTHER people’s actions. Their media, their economics, their very social activities.

          Need I go on? This is not paranoia, but rather a very cogent explanation on human nature.

          Janice Bellucci, the EFF, and the ACLU have done well to at least stop the ease in which this happened, and undoubtedly have made a dent. I don’t think I’m overstating anything that this decision, competently argued, is the most important decision made in California this year.

        • Joe

          You, sir, paint a dark picture. But one that is difficult to argue with…

        • anon

          While I don’t believe we are headed towards concentration camps, the government does seem to be pretty anxious about taking away as many freedoms as they can get away with.

        • Anonymous Nobody

          Anon, 20 years ago, you would not have been able to find anyone who would have said that most all of the terms of SOR we have today could ever happen in America. They would never have thought it possible in America that such information could be make public, much less the more draconian things it now includes. In fact, few outside California would even have thought it – possible to make someone who has completed probation or parole, or otherwise completed their sentence, register at all.

          Yet, look at the situation today. Despite people 20 years ago thinking this could never be constitutional, the makeup we have on the courts now finds no problem with it, has no issue with ruling that green is yellow. So, concentration camps — don’t be so sure. In fact, I have heard people propose such for SORs.

  9. Fish in a Net - RSOs 74k or 100k ?

    The number of individuals on the list always jumps around. When trying to defend these laws the numbers are minimized. When trying to scare the public the numbers are maximized. What is the CA RSO number? And how are differing numbers justified? High Risk vs. Low Risk vs. Other Risk? I fall into California’s “Other” risk group, which is by default definition lower risk than low risk, and does not qualify as an RSO under Fedral or most other states. Does any one have stats on the 100k on CA RSO list?

    • Janice Bellucci

      Yes, there is a lack of consistency regarding the number of RSO’s in the state of California. We use the number “more than 100,000” because we have reliable statistics showing that there are about 103,000 registrants. The fact is that the number continues to increase on a daily basis because the state has a lifetime registry for every registrant regardless of the severity of the original offense or his/her current risk assessment.

    • CW Griswold

      One guess is that these numbers come from the NCMEC. Yes, either number is used to support the desired purpose.

      July 2011 / California: 106,216
      http://msnbcmedia.msn.com/i/MSNBC/Sections/NEWS/111227_SexOffenderMap.pdf

      December 2012 / California: 73,944
      http://www.ncmec.org/en_US/documents/sex-offender-map.pdf

      According to this, for example, the number of registrants in Texas increased by 9%, while it decreased by over 30% in California (with a lifetime requirement even for misdemeanors) over that period. It would be interesting to find out how 32,000 individuals were able to end their 290 registration in the last 18 months. LOL!

      • td777

        We could only wish it were true that 26K were able to get the requirement to register dropped!

    • Anonymous Nobody

      I find even the 100,000 figure hard to believe. LIke Janice points out, it is lifetime, and registration is NOT new in California, has been going on for about 65 years with felons requiring a pardon to be able to stop (that’s not going to happen). 103,000 just is not believable. At least not for those who are REQUIRED to register — maybe a lot are flaunting it, out of sheer survival necessity.

      It might be worthwhile to subpoena the information. For one thing, when compiling the numbers, while at least felons are made public on the Web, all the misdemeanants subject to it are not, so there is no way to find out about them.

      And then from that, it sure would be nice to know how much this is costing municipalities and the estate — I’ll bet a lot more than anyone has realized.

      On the other hand CARSOL has just so much in resources, and this might not be the priority.

  10. Joe

    Just saw this on the front page of the Megan’s Law web site:

    ATTENTION: FEDERAL COURT ENJOINS COLLECTION OF E-MAIL AND SOCIAL NETWORKING INFORMATION ON REGISTRATION FORMS.

    On January 11, 2013, a federal court enjoined the Attorney General and law enforcement agencies from collecting information pertaining to e-mail addresses, internet service providers, and social networking/screen names on sex offender registration forms. These fields will not appear on the 2013 DOJ registration forms (DOJ forms 8047, 8102) which are about to be released. This injunction is in effect until the lawsuit challenging these provisions of Proposition 35, the Californians Against Sexual Exploitation (CASE) Act, is decided or until further notice. (John Doe v. Kamala Harris, Northern District of California No. C12-5713 TEH). Registering law enforcement agencies should black out these fields on the 2012 forms, and should not collect this information until further notice

    • Janice Bellucci

      It’s good to know that California DOJ keeps abreast of decisions made by the federal courts. I hope every registrant will go to the home page of the Megan’s Law website, which is legal, and make a copy of that statement to take when he/she goes for his/her annual registration.

      • Anonymous Nobody

        Just a comment: I always AVOID EVER gong to the registration Website, or any state’s site. They use every last unique visitor to justify it! They claim that shows how much the public wants it and needs it. Those visits have actually been used to justify it!

        It would be so ironic if that Website were justified because 103,000 sex offenders kept going to it!

        I will not give that Website a visit to count — no way. That is used the same as a vote in favor of it.

  11. MCH

    Pursuit of happiness:
    An inalienable right enumerated in the Declaration of Independence, in addition to life and liberty; the right to pursue any legal activity as long as it does not infringe on the rights of others.

    Well, that one has been taken away, liberty is pretty much gone, the attempt at removing freedom of speech is temporarily thwarted. Seems most of SO’s just “exist”, and that’s barely existing. Living day by day, wondering when a job will come through, hoping that our children and families are safe, questioning why RSO’s aren’t provided the same protection as others. Just curious though, after time served, probation or parole finished and other “penalties” fulfilled, why are our legal activities limited? Sad we can’t even protect our families or selves; cannot pursue even a little happiness by playing with our children in the park or cannot improve our lives because higher education/library access is limited. Yep, just wondering…

  12. Richard B

    Heart of a Lion
    We are very fortunate to have Janice fighting for Us. I speak with first hand knowledge of her abilities to defend my rights. I feel hope where there was once fear. With the leadership of Janice the tide is beginning to flow in our favor. Spread the word. God Bless Janice!

    • Janice Bellucci

      Thank you, Richard. It is my honor to be an advocate for registrants who previously lacked a public voice and are still being denied basic civil rights.

  13. J

    Found this article -which is poorly written in that it does not contain pertinent dates- and I’m wondering if someone knows something definitive about this “ruling”.

    http://www.minorityreporter.net/fullstory/fullstory.php?id=345

  14. Eric Knight

    RE: California appealing to the 9th Circuit with regard to Proposition 35’s Internet ID provision.

    Questions>

    1. Will the appeal be heard by a 3-judge panel or en banc (in banc)?
    2. What is the state restricted to in arguing the case, as opposed to their original arguments in the lower circuit?
    3. What is our side restricted to in defending the appeal?

    Part of my argument comes from the way Proposition was “marketed,” which was seen primarily as an anti-(child) trafficking bill, with a MINOR emphasis on the email address inclusion. In fact, I believe this was deliberate, in that Chris Kelly was SOLELY interested in the email address inclusion and USED trafficking as the selling point. In short, had Chris Kelly tried to create a proposition restricted to email addresses, he would not have gotten the required signatures and the proposition would not have happened.

    While this summation cannot be presented in court, couldn’t the fact that the trafficking clauses of Proposition 35 ALREADY was in place statute-wise, with appropriate penalties? If that argument is allowed, then that would throw cold water onto the state’s claim that the people “wanted” email address inclusion.

    4. If a three-judge panel rules AGAINST the state, what are the chances that they appeal to the full panel?

    5. Conversely, if a three-judge panel rules FOR the state, what are the chances that WE could appeal to the full panel?

    Lots of questions, hopefully some answers could be instructive. Thanks!

  15. J

    I’m not certain if the answers to your questions are in the Court’s web-site –
    http://www.cand.uscourts.gov/home
    but it may be likely that they might be able to point you towards a resource that
    is helpful.

    • Eric Knight

      Thanks J. For now, I got this bit of information: http://en.wikipedia.org/wiki/En_banc

      Essentially, we will most probably go with a panel of three judges, with no en banc proceedings, which doesn’t bode too well for us. This procedure was done to overturn a Nevada decision that allowed Nevada to retroactively assign risk levels to sex offenders, to which they “upgraded” a lot of lower level tier offenders to Level 3, the highest, with no chance of getting off the registry. The three judges on that panel were appointed by Reagan, George W. Bush (the younger), and Gerald Ford, and the ruling was unanimous.

      Traditionally, the 9th Circuit had been ruled the most liberal of all courts, but that’s because in its heyday the vast majority of all judges were nominated by Presidents Kennedy, Johnson, Nixon, Ford, and Carter, which set the liberal agenda. As they have retired the past decade or so, though, they have been overwhelmingly been replaced by Reagan and Bush nominees. Most of the republican-president-appointed judges have NOT been fully constitutional, which means they will most probably side with the State if they are on the panel.

      I feel, frankly, our fate will be sealed in the particular judge assignments for this decision. I would feel far more comfortable going en banc, but if we can at least get one Carter and one Clinton appointee (no Obama appointees yet), we hold a good chance, but if there are at least two Reagan/Bush on the three judge panel, get your id’s ready to submit to the Nazis.

      • DZ

        you mean ‘get ready to move out of california’.

        • Eric Knight

          Actually, some states are far worse than CA when it comes to the Internet. I would go for leaving the country if one wanted to get away from the repression. But for now, let’s hope the politics doesn’t play in assigning the 3-judge panel.

  16. S H

    Hi Janice / Eric,
    I really appreciate the effort, hard work & production you both put into RSOL.
    Personally I am the lowest risk offender (not listed on Megans web site)& have been
    doing the lifetime reg. req. since 1986. Can either of you, or anyone else point me in the right direction as to the source with respect to Eric’s post 2/13/13 of Calif. appealing to the the 9th circuit per prop 35? I’m looking for dates, 3-panel judge vs. en-banc, etc.
    Thanks to all for your posts, it’s good to know that there are fellow sisters & brothers that are concerned about all of this, as ‘am I, and share their learnings, knowledge & expertise.
    S.H.

  17. comcopicon.science

    The plaintiffs successfully moved for a temporary restraining order, which remained in effect until the district court ruled on the plaintiffs motion for a preliminary injunction.

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