Appellate Court Affirms Decision to Block Enforcement of Prop. 35 Requirements

The Ninth Circuit Court of Appeals today affirmed the decision of a federal district court to block enforcement of Proposition 35 requirements that all registered citizens provide a list of any and all Internet identifiers as well as any and all Internet service providers to law enforcement. California RSOL is a plaintiff in this case and was represented by the San Francisco ACLU as well as the Electronic Frontier Foundation.

According to the decision, the requirements violate the 1st Amendment of the U.S. Constitution in at least three ways: (1) the requirements do not make clear what sex offenders are required to report, (2) there are insufficient safeguards preventing the public release of the information sex offenders do report and (3) the 24-hour reporting requirement s onerous and overbroad.

“This is a significant victory for all registered citizens in California,” stated CA RSOL President Janice Bellucci. “The 9th Circuit of Appeals has clearly articulated that the requirements, if imposed, would violate the U.S. Constitution.”

The Court noted in it decision that the 24-hour reporting requirement of adding or changing an Internet identifier or an account with an Internet service provider is “not only onerous, it is also applied in an across-the-board fashion. The requirement applies to all registered sex offenders, regardless of their offense, their history of recidivism (or lack thereof), or any other relevant circumstance.”

In reaching its decision, the Court noted that the balance of equities in the case favor registered citizens “whose First Amendment rights are being chilled. This is especially so because the Act under scrutiny imposes criminal sanctions for failure to comply.”

Appeals Court Rules in Favor of Anonymous Speech in California Prop. 35 Case (Thanks EFF)
Opinion (Full Opinion, or view below)

Related:

Nov 19

Prop 35 Proponents Call 9th Circuit Court Ruling a Disappointment
Convicted sex offenders, Jehovah’s Witnesses, and the First Amendment

Nov 18

http://www.sfgate.com/news/crime/article/California-court-blocks-offenders-reporting-duties-5901370.php
http://www.latimes.com/local/lanow/la-me-ln-sex-offenders-20141118-story.html
http://www.bloomberg.com/news/2014-11-18/california-can-t-enforce-rules-tracking-sex-offenders-online-1-.html
http://sentencing.typepad.com/sentencing_law_and_policy/2014/11/ninth-circuit-upholds-injunction-on-first-amendment-grounds-blocking-california-law-requiring-sex-of.html

 

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I read the decision earlier. The Court of Appeals made note, in the footnotes, that this case was distinguished from Doe v Shurtleff due to the 24-hour requirement, and that there was no restriction against law enforcement publicly disclosing.

Utah was also under a permanent injunction. But, then they amended the law after the judges decision, to make it so internet identifiers could not be disclosed to the public. They then asked the judge to VACATE her Injunction based on the changes made to the law, and she agreed that it was no longer unconstitution al.

Based on the language of the Court, I bet they would do the same if California amends their version of the law to match Utah’s. The Ninth made no statement in this order that they disagreed with Shurtleff, they only made note that this case had differences and thus they had to rule differently. I interpreted them as saying, had there been restrictions against public disclosure, we would not have found issue with that portion of the law.

If California Appeals to SCOTUS, we could get screwed. However, SCOTUS might not even take the case because there is technically not a circuit split on this issue as Shurtleff and Harris had one major difference – the 24-hour requirement.

Let’s remember that this is an appeal of a preliminary injunction, and not a permanent injunction. A final order in the case has not been issued by the district court. California could still amend the law, and then ask for a dismissal. But, they would likely not prevail, and the case will go to trial. The REAL BATTLE is yet to come, and that is getting the decision we want out of California. Which is:

“That the Constitution protects us from the government, not the general public. Therefore, public disclosure is irrelevant. Anonymity is forfeited and speech is chilled, not because law enforcement may disclose identifiers to the public, but because registered sex offenders must give the government the keys to their otherwise anonymous free speech.”

The core concept that the District Court in Utah, the Tenth Circuit, and by language it appears the Ninth Circuit as well, could not understand is that being forced under threat of criminal prosecution for not giving the identifiers to the government is what chills speech.

I HOPE YOU ALL ARGUE THIS REVERENTLY TO THE DISTRICT COURT IN CALIFORNIA AND GET IT IN THE ORDER.

So does this mean that when I register that I don’t have to give them my email address

I wish these judges could sit in at the California Supreme Court next month!

WOW man! You guys are so lucky! I wish we would have the same thing here in Florida. Hopefully California can lead the way for other States and can use these examples of your California court cases to the courts here in Florida. They just recently passed a law here in Florida that we have to hand over Internet Identifiers to Law enforcement just last month- October. Anyhow, My congratulations to you all there.

Thank you so much, Janice et al! I’m shocked that the court upheld our rights..I live in Nevada and the 9th circuit sided with the state a few years ago on a RSO case that really screwed life up. This is big time and I’m so happy that you made this victory happen. Thanks again!

As usual the DOJ is behind in their posting of current information. Seems their RED lettered heading on their website still hasn’t been updated to reflect the current decision. Their ending sentence, “… until further notice.” HA, FURTHER NOTICE HAS BEEN DELIVERED!!

“Welcome to the California Department of Justice’s official Internet web site, which lists designated registered sex offenders in California.

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).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.”

Shame.

Are there any other US circuit court decisions that are in agreement with or contrary to this ruling? All SORNA states (and a few non-SORNA states) collect Internet identifiers and in most cases they have been held as constitutional by their state court systems. A circuit court split or agreement would go a long way towards sending this issue to SCOTUS.

In one county i used to live in, the registering office is only open 2 hours, just one day a week. In order to comply with this law, a person would only be allowed to get an internet identifier within 24 hours of Thursday between 8:30 and 10:30am and then be sure to check in then. Otherwise, they are in automatic violation. Oh, and former detective E_ F______ would threaten me with 2 years of prison for the slightest reason. Thankfully, he recently got demoted to a Sargent and it is my understanding he won’t go anywhere in public without a bullet proof vest.

This is really good news. Ex-offenders rights to free speech are especially important to counter the constant barrage of comments from the internet commenting vigilante-minded “kill ’em all, castrate them, shoot them on sight, one bullet, problem solved” crowd who also lie, or which is probably less likely are ignorant, about recidivism rates, to justify that kind of commenting. It may be just a few people doing these comments , but they really put it out there. For someone who doesn’t follow these issues, that kind of constant propaganda could really influence someone to believe the outright lies. I hope this issue is settled for a long time.

On the tv show Law and Order, SVU, the show starts off with some official sounding voice announcing that the New York SVU investigates these “vicious felonies”, which implies all registered ex-offenders have been convicted of vicious felonies. I know the show states it is not based on real events, but I think it tries to stay focused on current events, so as to appear like its non-fiction. That show seemed to have supported the Halloween restriction with one episode showing Officer Munch and another officer checking on a registrant during Halloween and of course, he had bad intentions. If it doesn’t happen in real life, the show will just make up phony situations. I think in every episode of Law and Order, SVU, the shows writers give a line to a tv cop to say something like ‘They Never Change’, to reinforce false recidivism rates. I know its not the tv format to let someone comment on the lies this show puts out to the public and the sensationalism it uses to acheive that. Really the only place left to comment is on the internet, or writing letters to newspapers, which would be cumbersome. This was a very important decision for free speech. Thank you Janice, RSOL, EFF, ACLU and everybody else, but not the speech stifling entrepreneurs who try to game the system with a lot of money and cyber fascistic leanings who came up with this draconian insanity in the first place.

This is great news, excellent news a good thing but things can change tomorrow. I read the related story dated Nov. 19 about RSO’s & JW’s and our constitution. Good story but very depressing for me, I was raised as a JW in my early years and do remember the rocks thrown at our door late at night because we were different. Most people do not know what the JW’s did that gave all more freedoms which many religions ENJOY today and yet they are still a hated group and of course not by the vast majority one would hope, I did experience some of the minority, pure ignorance on their part. I can relate to that story because I am a RS, my belief system is that of a JW but my faith in GOD was taken away by another GOD one day and I know I am being violated constitutionally everyday. My whole life revolves around this story sad to read and remember. My father recent wrote me a letter and it starts like this WAKE UP! WAKE UP! and get on the side of Jehovah’s Kingdom and also to remind me that the heavenly army of angels number in 10000 x 10000 and just one angel can strike down 185000 men. Perhaps this is tomorrow which would also be a good thing and I will be amongst the first 185000 and many if not all here may go down from the first angel and if not may be from the second angel. This what I will be thinking of today.