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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

 

Join the discussion

  1. Clark

    Whewwwwwwww..!….Thank You EFF, ACLU, Janice BELLUCCI and staff ….its a HomeRun for our Constitution and everyone’s civil rights …thank NinthCircuitCourt for supporting and Defending the Constitution.

  2. MM

    Yes! A win for registrants … it’s a good Tuesday.

  3. SC

    Thank you Janice Bellucci!

  4. Robert Curtis

    The real issue is how under the color of law (The Registry) rights are easily violated against those registered citizens that have completed their probation and parole. The nature of the registry encourages local politicians to enact ordinances that violate the rights of these citizens.

    Case in Point: All registered citizens were banned from Orange County Parks, beaches and harbors by an ordinance passed by The Board of Orange County Supervisors on April 5th, 2011. Later the California Supreme Court supported a lower courts rulings that stated they were unconstitutional. Why even have a draconian registry for people that have been through the GRINDER of probation, therapy and time served?

    According to the Department of Justice the recidivism rates are only 1.8%. Why do we continue to punish these people after they have completed their Parole/probation? The registry is a form of Living Death it is Evil and it is Wrong. TRUTH

  5. steve

    I like this part “The requirement applies to all registered sex offenders, regardless of their offense, their history of recidivism (or lack thereof), or any other relevant circumstance.” Hopefully that same thinking will be used in future decisions.

  6. Bluewall

    wooohoooo… THank you!

  7. JohnDoeUtah

    Not exactly the win I was looking for. Appears they left eh door open for the state to amend the law to make it constitutional.

    • Nicholas Maietta

      I just consulted with a friend who told me the very same thing. It’s a little upsetting to know an amendment can be made in such a way as to make it pass a constitutionality test. Luckily, the lawmakers I’ve seen so far demonstrate they know nothing of the constitution, so i think we are safe as far as that goes.

      But like all lower life forms, these kinds of politicians may gradually evolve over time into much more effective creatures designed to prey on registered citizens.

    • James

      The ruling does not “leave the door open” for future laws: rulings only address the law at issue: they cannot speculate about all possible permutations of a law. The ruling, did, essentially, ban any permutation of this law.

  8. JIm

    So doe’s this mean that I can have a facebook account with family and friends to interact with or invite them to play video games with?

    • Mike

      No, Facebook specifically bans sex offenders in their terms of service. They’re a private company and there’s no law that prevents them from establishing rules that exclude sex offenders from being granted accounts. Now if they tried to discriminate based on race, gender, religion or marital status it might be a different situation… Unfortunately RSO’s aren’t a constitutionally protected class (usually quite the opposite in fact!)

      You can try to get away with creating an account and posting, but if someone complains of they catch you they’ll disable your account and redirect your homepage to say you were banned because you’re an RSO.

      • Nicholas Maietta

        You are incorrect. They are now a publicly traded company. Just buy some shares and then they can’t legally restrict you from using its services.

        • cool RSO

          Then let’s SUE !!

        • Nicholas Maietta

          Why sue a company like Facebook, who publicly acknowledges they use all teh information you provide them, to do as they wish with it. Those so called “privacy” settings are a joke, they can on a moments’ notice make changes to their policies. There is no true deletion of data.

          We just saw it with Twitter today. While people were told they can delete their tweets and poof, they were gone.. truth is they are now searchable as of today, per a massive trending piece of news in the technology world. Any tweet anyone has ever tweeted, including deleted tweets can now be seen by anyone who wishes to search your past profiles or for specific subjects/topics.

          The moral of the story is that everyone should fully understand anything they say and do online with a great many of these social networks are considered “not private” and not just being shared betweeen trusted friends and family. These social networks set out to make money and shareholders will hold them to that.

          Ello, a new competitor to Facebook specifically set out to NOT sell or share any personal information, including placing ads on their websites. They will be making money in a number of various other ways such as tailoring the experience for a fee, which could work. As an invite only service, i wanted to take this for a test drive and i’m lucky enough to now have a profile there. I did my homework, they seem to now be legally be bound to service in the public’s interest, due to the way they formed their businesses.

          We’ll see how this goes, but i have to say why bother suing Facebook? They break various laws virtually every day. Time better invested in dealing with the root problems (such as the existence of the registry in the first place) are very good places to start. Even if you or anyone else managed to sue and win against Facebook wouldn’t stop any other company or business from doing the same. In face, Facebook i think would actually continue to break the law and appeal any ruling not in their favor and would probably win.

        • Mike

          Hmmm…by that logic then if I own a single share of Disney stock I should be free to use their characters in any manner I please, print and sale T-Shirts, stuffed characters, mickey cakes, use them in my own movies or literature I publish, perform any of their songs without having the pay royalties…

          I don’t think that’s the way the it actually works. Sorry.

      • JIm

        Thank ypu Mike!

      • MM

        Think about this!! If the tiered registry system does go in effect and one day you do “fall off” the registry … you are no longer considered a Sex Offender, correct? That would mean you could THEN have a Facebook account …. love that idea!

  9. Robert

    Congrats!! Janice, CA RSOL, ACLU and EFF, this is big.

  10. Q

    Thank you California RSOL (Janice), San Francisco ACLU and The Electronic Frontier Foundation.
    Thank you.

  11. sixcrowes

    Wow – I really needed to hear this!!

  12. Timmr

    Boy, I came home feeling I was coming down with something, and then I got this news. I feel great all of a sudden! Whew. Now I don’t have to comply with a law I never understood, and never applied to me. Geez, They didn’t even want my email address or other identifiers (whatever those are) when I was on probation. A blow against ex post facto punishment!

  13. cool RSO

    VICTORY DANCE !!!

  14. mike

    Hallelu-freakin-Jah. Being honest, I don’t think there is any way I could have conformed to meet the expectations this law entailed. I probably have hundreds of online accounts that I have forgotten about. I wouldn’t even know where to start. Many stores offer discounts or “Club Offers” when you sign up with your e-mail address and I’m not one to turn down a discount.
    I honestly hope this precedent can be used by civil rights activists in other states where they’re experiencing these “Freedom of speech” issues. Many thanks to all, including the Ninth circuit, who put an end to this travesty.

    R.I.P. Prop 35: Ban on Human Trafficking and Sex Slavery.

  15. JB

    Thank you, Janice!

  16. R

    Thank you Janice. This one had me worried. I have no idea just how many web sites I am subscribed to or what my user names or passwords are to many of those sites. I hope that Facebook changes their Terms of Service as many public and private services require a Facebook membership.

  17. Austin

    If this part of the law had not been struck down it would have added an element of danger for citizens posting on this site in my opinion. Who knows what repercussions would have ensued when a registered citizen’s probation or parole officer became privy to the comments left on this site by their parolee or probationer. I find that frightening to consider.

  18. Eric Knight

    This is the MOST SIGNIFICANT VICTORY so far in the United States for registrants. I personally will spend tomorrow researching EVERY case I can find in the country that involves email or internet violation, locating the attorneys in those cases, and TELEPHONING their offices to let them know of this decision. This is HUGE.

    Finally: I was extremely worried about this decision. Only 425 or so days since the case was heard.

  19. Tired of hiding

    I love when I can check this site and get some good news instead of simply raising my already dangerously high blood pressure!

    I tiny bit of hope has been ignited in my otherwise hopeless soul.

    Thank you for your efforts Janice (and others). At least on a state level we have some protection here in California that others are not as fortunate to have.

  20. USA

    Well, this is another example of Judges making the right decision. As I have mentioned before, the race isn’t always won by the swiftest or fastest, but by those who keep running. I just hate it when I hear someone complaining or stating how terrible life is! 2-3 years ago, we where banned from parks, beaches, movie theaters and God knows where else! Things have changed drastically. Furthermore, just imagine what might have been next if these laws had stuck! Banned from driving? Going out a night? I suggest people continue to support RSOL and commend Janice for all the hard work and effort she and her team have put in!

    • Robert Curtis

      I have developed a system of influencing that if taken to heart and acted on will make a difference at city, county, state and federal levels.

      Forgive me and my lacking towards defining what resources are available to you via your local hair salons and barber shops. These people are directly in touch with voters …they are the boots on the ground.

      How can you use their relationships with community to promote our rights in this war? What does a hairstylist and barber value most? Their cutting tools.

      If you determine to sharpen their scissors for free stating (XYZ politician) sponsored their scissors to be sharpened…that (XYZ candidate) will be voted for and one thing hairstylist do is talk. If a politician is playing the race card( I mean sex offender card) they now have a problem. Just go to their rival with your sponsorship program.

      I will teach you these easy skills and we will take the country back one hair salon and barber shop at a time! Although this is a complementary service hairstylist usually give tips out of appreciation..I averaged $100 a day in tips for all the free work done.

      I am a registrant that use to be a salon owner and hairstylist. The registry will be defeated. Our fight ladies and gentlemen is a patriotic one. We are all soldiers in this war…there are no civilians on the registry. Justice will prevail.

      The politician as a sponsor must (or should) agrees to give a donation to an organization that supports battered women and/or rape victims. Well, that’s what I requested of my candidate in lieu of me being paid..Good PR for registered sex offenders if the secret gets out.

  21. MS

    Great News! Thank you Janice!

  22. Austin

    I just finished reading the court’s decision in it’s entirety and must say I’m more hopeful now than ever before of seeing significant change in the future in the form of legal relief for registered citizens.

    The judges were correct to view and treat this portion of Prop. 35 as an attack on the first amendment protections of registrants. Reading the court’s reasons for reaching their decision almost makes me feel as though the constitution actually does apply to EVERYONE, no matter how unpopular they may be in society.

    I especially admire the court for rightfully stating “[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” “That [the Government] will use the power appropriately is not sufficient”.

    Bravo Ninth Circuit Court of Appeals!!! Finally some sanity when it comes to Sex offense legislation!

  23. Austin

    Janice,

    Is it possible that the state assembly and the Governor will simply sign “emergency legislation” that invalidates the court’s decision as they did in the “People vs. Douglas” case? Please tell me that can’t happen?

  24. JohnDoeUtah

    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.

    • Austin

      JohnDoeUtah:

      Thank you for pointing out that freedom of speech is chilled by the requirement to relinquish anonymity to the government. The constitution exists to protect citizens from the overreach of the government; by requiring registered citizens to essentially sign their names to everything they say online, we are being robbed of an essential constitutional protection – the fact that disclosure to the public is irrelevant is a subtle yet important distinction.

      • JohnDoeUtah

        Alexander Hamilton and James Madison used the name, “Publius,” when writing The Federalist Papers, not because they feared the public – but because they feared the British Crown (government). Thus, why the courts have recognized the right to ANONYMOUS free speech.

        • Timmr

          I fear the public and the government, because they are the same thing when you wea the scarlet letter. The Bill of Rights was to keep popular laws from trampling individual rights. Some of the founders foresaw the tyranny of the majority, and fortunately had enough agreement to amended the Constitution to help protect against that eventuality. I’m all for democracy, as long as it is based on each individual having an inherent right to life liberty and the pursuit of happiness, and those can’t be abridged simply because a majority wishes it so.

  25. mike

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

    • Janice Bellucci

      The government cannot require you to provide them with your E-mail address. This fact was established in November 2012 when the federal district court granted a temporary restraining order (TRO) in the case. The same court later extended the TRO to a preliminary injunction (PI) which was appealed to this court, the 9th Circuit Court of Appeals, which upheld the PI. During an interview today on KPCC, the radio host asked me if the appellate court’s decision would be appealed further. I answered that such an appeal would be foolish becuase those who supported Prop. 35 have already lost two court battles.

  26. G4Change

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

  27. A

    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.

    • 4sensiblepolicies

      Stop ‘wishing’ and get active (if you’re not already) wherever you are, however you can! Many unconstitutional and outright idiotic laws across the nation related to RC’s have been enacted, but gone unchallenged. When an even blatantly bad law goes unchallenged, it stays on the books. California is incredibly fortunate to have CARSOL, Janice Bellucci, as well as support from ACLU in the present case.

      This is not to say that every stupid/oppressive law can be successfully turned back, but no matter where RC’s and supporters of just and fair laws reside, find a group like CARSOL and get busy on defending basic human rights. Sitting by wishing things will get better, and hoping that maybe the government in your area is done passing more draconian laws is not a good approach. Inaction just encourages them to be more bold in trampling your most basic Constitutional guarantees.

      I am in a state neighboring CA, and was mortified at Prop 35’s overt violation of basic Constitutional protections, and the fact that it would inevitably put every single RC who uses the internet into violation with impossible to comply with requirements. Without CARSOL and Janice, that law would have stayed on the books and likely spread like a poison into this state and others. Thank God for Janice and RSOL. Thank You all at CARSOL.

  28. mike

    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!

  29. MM

    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.

    • Tired of hiding

      HAHAHA What a joke that is…

      You can bet that if it had not been upheld and we were required to give that information within 24 hours that they would find as many officers as needed to arrest everyone of us who failed to make that 24 hour deadline!

      BUT

      Since it was NOT in their favor they will take their sweetass time updating the website themselves!

  30. Kevin

    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.

  31. Nicholas Maietta

    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.

  32. anonymously

    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.

  33. VSPSVS

    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.

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