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National

IL: Supreme Court asked to review McLean County sex offender issue

The U.S. Supreme Court has been asked to review a case against a Normal man to determine the constitutionality of Illinois’ rules mandating that sex offenders report all their internet activity to authorities. Full Article

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  1. Nondescript

    When they started going after juveniles many years ago, I remember thinking ” ahh, their agenda is to get ’em while their young”. To all those unsuspecting parents who were programmed to think the sex offender laws were passed to help keep their families safe- you were duped.

    The devil casts a wide net.

  2. AJ

    Another cert to SCOTUS about another draconian RC restriction. I know many states, including mine, request and hold this type of information (which is bad enough), but to publish it? That’s a whole different matter.

    SCOTUS sure is getting a boatload of RC cert requests, aren’t they? Good! In some way, they are going to have to address this cancer. In all fairness to SCOTUS, they never said anything about restrictions being okay. They only said registries, and public dissemination of them, are constitutional. It’s the legislative bodies across the country who have run ape-sh*t crazy with restrictions.

    That these cases are finally rising to the top is a wonderful thing. SCOTUS cannot ignore this issue forever. IMHO, this can onlyl help tip SCOTUS towards accepting Snyder, which I think they will anyway given the CVSG (http://www.scotusblog.com/reference/educational-resources/glossary-of-legal-terms/). Hopefully SCOTUS uses Snyder to cast a wider net and catches a whole bunch of these ridiculous laws and kills them…though I don’t foresee their doing so.

    I continue to pray for SCOTUS and other courts to have the wisdom and courage to rule based on facts and truths, not fears and suppositions.

    –AJ

    • New Person


      In all fairness to SCOTUS, they never said anything about restrictions being okay. They only said registries, and public dissemination of them, are constitutional. It’s the legislative bodies across the country who have run ape-sh*t crazy with restrictions.

      This if false. The SCOUTS said it was constitution b/c of the high recidivism rate and that they said legislative bodies wouldn’t go crazy with the rules, which they stated in five factors. They told the lawyers that all the concerns were all conjecture. They srsly talked down to the lawyers who represented the registrants.

      Go ahead. Read the 2003 Smith v Doe decision. Read for clarity. The compare what is being done today. No state laws should surpass what the SCOTUS laid out specifically. They have crossed that regulatory threshold and onto punishment realms. Recall, they said this was akin to a “store membership”.

      Public dissemination are for convictions, yet California negates all those with cases dismissed to continue to register.

      • Timmr

        I read it once. It limits its decision to just making you give your information and it can be applied retroactively. I don’t remember it allowing anything else. It was far from a uninimous decision, also.

      • AJ

        @New Person
        No, what I said it is not false. Having read Smit–and CT DPS–a number of times, I’m well acquainted, but thanks for the suggestion. Smith was about whether AK’s registry was punitive or non-punitive. SCOTUS used the Mendoza-Martinez factors to show why **as it then existed** AK’s registry was not punitive. They found that the burdens placed upon RCs **at that time** did not rise to punishment.

        Your claim about SCOTUS’s use of the high recidivism rate is the falsity here. They used it as to support how AK’s registry easily met the rational basis scrutiny. The burden was upon Doe to show that the intent or effect of AK’s registry was punitive. Intent was quickly cast aside, as the legislature explicitly stated intent was public safety. They then studied the effect of the law, and using said M-M factors, found the burden didn’t rise to being punishment. As I and many others have posted elsewhere on this board, legislators have gone well beyond the standards SCOTUS used. It’s no longer equivalent to a Price Club application, as Chief Justice Roberts stated. That’s why I and many others have said that if/when SCOTUS has a case where they can again apply the M-M factors, there will almost assuredly be a different perspective.

        I completely agree with you that legislatures have gone beyond what SCOTUS said–that was the gist of my original post, after all–but you seem to have a complete misunderstanding of what a SCOTUS ruling says and does. Nowhere did SCOTUS say, “thou shalt not go beyond what we’ve said is constitutional in this opinion,” nor would they. SCOTUS likes to rule very narrowly to limit the scope of decisions and to avoid causing problems down the road in other unknown cases. They did exactly that with Smith: as it stood, AK’s (and all the others’) registries were legal as they existed. Said registries no longer exist as they did during Smith, which is why cases such as Snyder are finally working their way back to SCOTUS for further ruling.

        I stand by my original words…which you actually confirmed in a roundabout way when you said to, “compare what is being done today.” Exactly my point. What is done today far exceeds Smith. Exceeds doesn’t necessarily mean violates. It may, it may not. Since you seem to be confused on that concept, I counter your suggestion to me with a suggestion you read and learn about scope as it pertains to court rulings.

        –AJ

        P.S. Timmr is right as to what Smith allows. The decision was a 6-3 reversal and remand, and I wouldn’t be surprised if Thomas, who wrote his own concurring opinion, would now tip the other way. (FYI, CT DPS was a 9-0 reversal.)

        Smith: https://supreme.justia.com/cases/federal/us/538/84/case.html
        CT DPS: https://supreme.justia.com/cases/federal/us/538/1/case.html

        • Chris F

          I agree with all the points.

          The sad thing is, we need WAY more than to just turn Smith V Doe around.

          Since Smith V Doe only covers retroactive application of the registry or laws against us, even if today’s scheme is deemed punishment that can’t be applied retroactively, it would still be applicable to anyone’s crimes committed after the dates on the laws.

          We desperately need a good challenge to the core registration, publishing, and blanket laws written against all those on it that does not mention retroactive punishment.

          Ct DPS case was just a bad case. The Justices even said that it may have worked in our favor had Substantive Due Process been challenged instead of Procedural.

          A challenge against Bill Of Attainder is probably our best bet since there is tons of evidence now that the laws don’t work, are too broad, and were purposefully done to squash a class that has no influence.

          The other thing that needs to be pointed out to judges is that all Sex Offender regulations undermine the judge’s authority to let the punishment, rehab, and protecting of the public fit the individual and the crime. Legislature has effectively removed judges from doing their job, and eliminated 1/3 of our system of checks and balances by this Sex Offender scheme of trial by legislature.

        • AJ

          @Chris F
          Thank you for supporting my points, I do trust and value your opinion. I agree completely with yours, too. Personally, I don’t ever foresee Smith getting voided, and yes, SCOTUS pretty much said that CTDPS was attacked incorrectly by Doe.

          Your comment about judges’ hands being tied doesn’t apply merely to SOR laws, as I’m sure you well know. Any and every mandatory sentence law does that! As I was enlightened reading the Riley doc you supplied, it also they also violate other Federal laws surrounding the USSC.

          –AJ

        • Michael

          @Chris F

          “Since Smith V Doe only covers retroactive application of the registry or laws against us, even if today’s scheme is deemed punishment that can’t be applied retroactively, it would still be applicable to anyone’s crimes committed after the dates on the laws.”

          The effect of a reversal would be detrimental to SOR laws, period. If retroactive application is found unconstitutional, It would essentially shutdown every registry in the country. There would be no way for any legislature to increase the scope and/or modify future legislation without effecting everyone one the registry. Each time a change is made, those changeswould only effect those required to register after the effect date of the law.

          Personally, I don’t see it going that far.

          ….

        • AlexO

          Agreed. Not to say they won’t allow the split to happen, but I can just see the mess that 800,000+ RC’s across the country requiring to be split dozens of categories based on dates of all these various laws. Most states are having hard enough time as it is policing the registry without jumping through hoops on what should apply to whom.

        • AJ

          @Michael
          I second AlexO’s agreement with you. If SCOTUS judges the case(s) on merit(s) and doesn’t pander to popularity or politics–something I think they’re well capable of doing–the difficulty, confusion and opacity RCs suffer trying to navigate the minefield of laws will shift to the State. (Brief moment of crocodile tears.) It may end up causing a huge retrenchment in the laws simply to avoid the risk of LEOs falsely arresting someone, a DA falsely charging, etc. (Hey, one can hope!)

          If punitive, the Full Faith and Credit Clause will also kick in, making it an even bigger pile of spaghetti for the States. Example: I was convicted in a non-SORNA state where my info is held only by LE and only for 10 years. However, I resdie in a SORNA-compliant state that publicizes my info and has only 15-year, 25-year and lifetime registrations. So regardless what my crime was, my state of residence will be imposing further punishment of 5 or more years. Likewise the residency and presence restrictions: in my state of conviction, there are none; in my state of residence, a handful. Since I was never sentenced to stay away from anyone or anywhere and no such law exists in my conviction state, imposing such restrictions would be additional punishment. (Personally I think such types of restrictions will be found facially unconstitutional and render my argument moot.)

          A huge can of worms to be had when (being optimistic and hopeful!) SCOTUS says anything beyond registration is punishment. (Hmm, a bit of deja vu over that registration vs. restriction concept….)

          –AJ

        • New Person

          Why a public safety?


          Your claim about SCOTUS’s use of the high recidivism rate is the falsity here. They used it as to support how AK’s registry easily met the rational basis scrutiny. The burden was upon Doe to show that the intent or effect of AK’s registry was punitive. Intent was quickly cast aside, as the legislature explicitly stated intent was public safety. They then studied the effect of the law, and using said M-M factors, found the burden didn’t rise to being punishment.

          There were three factors out of the five that were based upon high recidivism rate of 80%. The extreme result is the reason why the SCOTUS trampled on any registrant’s Constitutional rights. Let’s use a counterpoint. Murderers… are not on any registry. Why? What’s the point with their low recidivism rate?

          The high recidivism rate is represented by the phrases “danger of recidivism”, “Public Safety”, and “determination of their dangerousness”.

          Case link: https://supreme.justia.com/cases/federal/us/538/84/case.html

          MM Factors dealing with high recidivism rates:


          Third, the Act does not promote the traditional aims of punishment. That it might deter future crimes is not dispositive. See, e. g., id., at 105. Moreover, the Ninth Circuit erred in concluding that the Act’s registration obligations were retributive. While the Act does differentiate between individuals convicted of aggravated or multiple offenses and those convicted of a single nonaggravated offense, these broad categories and the reporting requirement’s corresponding length are reasonably related to the danger of recidivism, and this is consistent with the regulatory objective.

          and

          Fourth, the Act has a rational connection to a legitimate nonpunitive purpose, public safety, which is advanced by alerting the public to the risk of sex offenders in their community.

          and

          Fifth, the regulatory scheme is not excessive with respect to the Act’s purpose. The State’s determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not render the Act punitive. Moreover, the wide dissemination of offender information does not render the Act excessive, given the general mobility of the population. The question here is not whether the legislature has made the best choice possible to address the problem it seeks to remedy, but whether the regulatory means chosen are reasonable in light of the nonpunitive objective.

          Those three factors list high recidivism rates as the reason for the registry to be considered regulatory. Since we can’t control ourselves, as the reported recidivism rate is 80%, then the nation must control us. The last factor condemns all of us as behaving as one, not individual citizens. How can we all be treated as ONE CLASS with as broad a spectrum for convictions? Because of the 80% recidivism rate. Because we can move around so much (mobility), it’s important to track these monsters b/c they cannot control themselves.

          The SCOTUS is legally naming us monsters with these three factors. The devil is in the details and you’ve missed it completely. Srsly, why did Dr. Ira and Tara Ellman do their research work? Why does it matter to the 2003 Smith v Doe decision? What level of dangerousness is the SCOTUS referring to? What was the reason behind these three factors?

          Now that Dr. Ira and Tara Ellman confirmed that the recidivism rate used by the SCOTUS for the 2003 Smith v Doe was a false fact from an unqualified person, then it completely destroys factors 3 – 5. This is why their research work is so important – the Ellman’s are stating we’re not monsters; we’ve got one of the lowest recidivism rates as a group!

          .
          .

          While the SCOTUS never said the restrictions today are not okay, they did list them as the threshold for what’s considered PUNITIVE. They, the SCOTUS, listed that there were no restrictions nor limitations comparable to probation or parole. The SCOTUS stated the ninth circuit erred and that nothing was excessive. The SCOTUS used conjecture with believing none of these thresholds would be crossed. That’s essentially why they listed the five factors!

          Factor 1. Registration historically hasn’t been categorized as punitive. Historically, shaming is punitive, but he SCOTUS works around it by stating it’s public record. Except now, we know this is shaming as well as the cause for vigilantism. There are a plethora of stories where non-registrants were attacked b/c their residential edifice was formerly preoccupied by a registrant. Being in the registry also restricts employment, housing, and presence.


          Respondents’ argument that the Act, particularly its notification provisions, resembles shaming punishments of the colonial period is unpersuasive. In contrast to those punishments, the Act’s stigma results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public.

          Factor 2. From the website,

          the Act does not subject respondents to an affirmative disability or restraint. It imposes no physical restraint, and so does not resemble imprisonment, the paradigmatic affirmative disability or restraint. Hudson, 522 U. S., at 104. Moreover, its obligations are less harsh than the sanctions of occupational debarment, which the Court has held to be nonpunitive. See, e. g., ibid. Contrary to the Ninth Circuit’s assertion, the record contains no evidence that the Act has led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred. Also unavailing is that court’s assertion that the periodic update requirement imposed an affirmative disability. The Act, on its face, does not require these updates to be made in person. The holding that the registration system is parallel to probation or supervised release is rejected because, in contrast to probationers and supervised releasees, offenders subject to the Act are free to move where they wish and to live and work as other citizens, with no supervision.

          Factor 1 states only ” the dissemination of accurate information about a criminal record”. A dismissal of a record means there is no criminal record. So any registrant who has earned a case dismissal should not have their information shared.

          Factor two lists all the restrictions that are not imposed to render the scheme regulatory. It states if you do this, though, then the scheme is punitive.

          Here’s your quote:

          Nowhere did SCOTUS say, “thou shalt not go beyond what we’ve said is constitutional in this opinion,” nor would they. SCOTUS likes to rule very narrowly to limit the scope of decisions and to avoid causing problems down the road in other unknown cases.

          So… you mean to say that their logic of arriving that the scheme is regulatory doesn’t matter? Factor 1 lists specifically who is on the registry. Factor 2 lists the basis for the scheme to be deemed regulatory. The SCOTUS lists specifically WHAT NOT TO DO!

          This means by crossing any of the thresholds implies the regulatory scheme is now a punitive scheme.

          What you’re giving me is the end result: Registration is a regulatory scheme and not subject to unconstitutionality and it is retroactive. I’m telling you how it got there, specifically.

        • AJ

          @New Person
          In the interests of myself and everyone on here: I respect your right to your own opinion, and wish you well.

          –AJ

        • Timmr

          What irritates me is this punitive/non punitive dicotomy that doesn’t reflect how things are in practice. The main duty of penal institutions is not just to make people suffer. They call themselves corrections institutions. Their other goal, and I would say their main goal they are funded for, is to prevent re-offense. Sure, people like to see people suffer for their crimes, but if the system did not promise to reduce crime or keep crime at bay, the public would surely not continue funding it as solely a torture chamber for public retribution. Preventing re-offence is a public safety goal and is therefore regulatory. So you might say formal punishment is meant to regulate or guide human behavior to promote public good. The historical punishment argument is also flimsy. When have the methods of punishment stayed the same throughout history? I am sure the founders thought many actions imposed by the British were equal to punishment, although called merely regulation.

        • Nondescript

          Regarding Factor 2 and restraint:

          The Supreme Court was either using a straw man excuse or the attorney for plaintiffs in this case sucked. ( I suspect the former) First off, they knew and know damn well that the sex offender registry is a metaphysical restraint. Whether it is “punishment” or not is irrelevant. To employ a litany of psychological restraints on a person with sanctions of physical confinement and call it the least restrictive type of restraint, is disingenuous. It is akin to assault and torture. Furthermore the restraints of sex offender laws have absolutely no effect on the harnessing of “dangerousness” which is an elastic concept anyways and stretched to such a degree that is meaningless. They can prattle on about ” frightening and high” recidivism rates all they want , but in order to restrict liberty and mobility on anyone the standard is unusually strict . Lifetime permanent restraining orders are used for serial abusers , not potential serial abusers as the abuse must remain constant or increasing for them to be employed ( or upheld in our case) <—— this last sentence is important.

        • Michael

          @AJ

          “The burden was upon Doe to show that the intent or effect of AK’s registry was punitive. Intent was quickly cast aside, as the legislature explicitly stated intent was public safety.”

          That’s what I find laughable. The idea that the laws are not punitive because they are applied civilly under the guise that these registries protect public safety is akin to Donald Trump stating his travel ban executive orders were not a Muslim ban. Legislators say one thing, but the application of the laws suggest another. I am dumbfound as to how the most courts don’t see that.

          ….

        • AlexO

          It’s like that Gingrich interview about violence.

          https://www.youtube.com/watch?v=xnhJWusyj4I

          Reporter: Crime is down
          Gingrich: Nuh-uh
          R: Yes, it is. These are facts.
          G: Yeah, well people feel otherwise and feelings are more important than facts.

        • AJ

          @Michael
          Totally in agreement. It’s just one more “civil regulation” end-around on the Constitution. Just like eminent domain, just like civil asset forfeiture (which it appears Justice Thomas is aching to take up).

          I think some of it boils down to the judges would prefer to have the vigilantes after us than them. Also, with judges in many places being elective offices (a huge mistake, IMHO), they are more likely to pander to public opinion.

          –AJ

      • Michael

        Smith v. Doe challenged the constitutionality of the Alaska Sex Offender Registration Act’s retroactive requirements. The question was, is permitting inclusion of the names, addresses, descriptions, and other private information in a sex offender registry broadcast over the Internet violative of the U.S. Constitution.

        The appeals court found that the information to be included in the registry was too broad, and that the methods of gathering that information were extremely burdensome. SCOTUS held that it was not broad nor burdensome.

        ….

  3. commenter1

    The IL Supreme Court is also taking up the People v. Pepitone case in which an IL appellate court found the statewide park restrictions to be unconstitutional:
    http://www.illinoiscourts.gov/Opinions/AppellateCourt/2017/3rdDistrict/3140627.pdf

    Briefs in the case are due in the next 2 months.

    If there is an unfavorable opinion then this park restrictions case could also be heading to SCOTUS.

    -Scott

    • AJ

      @commenter1 (Scott)
      Thanks for the link to this case. I’m thinking that no matter what, this case will head to SCOTUS, as there will be an unfavorable opinion for one of the two parties. Neither party will let it lie–Pepitone because he’s right, the State because it’s stubborn and will never cede an inch on SOR laws.

      Good thing the IL legislature is reconsidering some of this via that task force.

      Bonus item from an IL lawyer website: “The sex offender registration laws distinguish individuals who have moved to Illinois prior to 2012 and those who moved to Illinois after 2012. A person who moved to Illinois prior to January 1, 2012, is required to register as a sex offender in Illinois if the offense in the prior state is substantially similar to a sex offense in Illinois that would require registration. The length of the registration period is governed by the registration required by the Illinois offense. All individuals who moved to Illinois after January 1, 2012, are regarded as sexual predators and they are subject to lifetime registration.”

      This is a blatant Equal Protection violation. But for my moving date, I’m more violent and subject to lifetime? Ooook, that makes zero sense. No rational basis there, either. It’s simply a(nother) way to try to dissuade any RC from moving to IL.

      –AJ

      • AlexO

        Sounds a bit how a portion of the Static-99r works. Static-99 is done at the time of release (release means released onto probation or parole; when on probation, “release” generally means the same date as conviction while for parole it means when you’ve left prison), not when the offense occurs. For 8 of the 10 questions release date or crime date won’t change the facts. However, the first two questions, your age and long-term partner, can very directly be effected.

        For example, I scored a 4. I got a +1 for being under 35 by two years. If I were older or dragged the case out (someone in our rehab had his case dragged out for over 2 years), or been sentenced to prison for 2+ years, I would’ve avoided that +1. Likewise, if someone who had no long term relationships but got into one after the offense but conviction was 2+ year later, they would less than someone who just pleads out and wants to get it over with.

        How insane is that?

        • AJ

          @AlexO
          So really, one’s Static-99 is subject to the whims of a parole board. Suppose you and I both go before parole boards and have identical records. Same age, same crime, etc. My board grants me release, and yours holds you for a year or two or whatever. We would have different scores? IOW, our scores would be subject to whether the parole board members got up on the wrong side of the bed, are tired, don’t like our appearance, etc? How perfectly objective!

          –AJ

        • AlexO

          It’s not that arbitrary. They can’t give you a +1 or -1 just because. I was more talking about the actual guidelines. Static-99 is supposed to be calculated at the time of your release which can result in two identical cases having different Static-99 scores.

          Let’s say you and I were exactly the same (same age, same crime, same age victim, same personal relationship status, same overall criminal record, etc) and we were both given the same sentence in prison of say 3 years and both came up for parole at the same time. However, you were a perfect model inmate and I was always causing issues. So you’re granted parole while I’m being held for a an extra year. You made parole at age 34 and I made parole the following year at age 35. You’d actually have a higher Static-99 score as you were released before that age 35 threshold.

          It’s why I’m asking if there’s a way to get a slight modification. It just seem incredibly unfair and just not right for me to be now and forever more harshly penalized and categorized because at the time I was just a bit too young.

          There are a lot of things like that that had I know then what I know now, I would’ve likely tried and have my case handled differently. I’m actually in the process of working on a few documents for a rehab program that I’m still voluntarily attending (the program allows you to continue treatment at no cost once you’ve completed the mandatory amount) for anyone new. I want people to have as much knowledge as possible while going through the court process (and sometimes after) so that they could possibly avoid some of the pitfalls that I and others have experienced due to a simple lack of knowledge of the end result.

          One of the biggest oops’s that I’ve seen was on gentlemen in our group who had to spend his entire probation sitting at the local train station for hours each day until his wife came home to be around their kids. Reason being is that no one at any time thought to ask for an exclusion for him to be around his kids by himself so he got a straight no contact with minors.

          It even happened to me to a lesser degree. I didn’t ask for any particular exclusions so I was given a blanket no contact which resulted in my having very limited time with my young nephew (my brother and sister-in-law had zero issues with it but by the letter of the law I couldn’t be around him unless my wife was with me as an IRA “Informed Responsible Adult”). Even my probation officer told my wife that she actually didn’t think I’d be any danger for me to be around boys but because I didn’t ask for it during the case, she had to enforce what was in the documents. I never went back to court to try to get a modification because I didn’t want to go through the whole process again. I still get goosebumps thinking about everything.

        • AlexO

          Bah! I basically repeated what you said because my reading comprehension is apparently bad lol

  4. Jo

    I’m confused: when entities such as Facebook ban registered citizens from using their site and actively hunt them down and delete their accounts, why is this important? The government says it’s ok to use but they don’t let us use it

    • Michael

      “The government says it’s ok to use but they don’t let us use it.”

      Not sure which government you are referring to. Most states restrict social media access to sex offenders.

      As far as Facedbook is concerned, they can do whatever it is they want. It’s their website.

      ….

    • AlexO

      FB and other private companies can’t ban someone based on sex, race, religion, etc, because they’re all protected classes against discrimination. RSO’s are not a “protected class” so these companies can do just about whatever they want. In some states though, going on social media for RSO’s is against the law. That’s another case currently waiting to be heard by SCOTUS.

      • AJ

        @Jo
        This is also why Packingham may end up being a somewhat empty victory. SCOTUS may well rule that the State cannot prohibit anyone from accessing FB, etc. But that in no way will change what others have pointed out, which is FB can deny service to pretty much anyone not in a protected class simply by choice.
        And if you think they cannot, I suggest you go argue with the cruise industry about it, too. FB probably has an even stronger case than cruise lines, as FB is not engaging in any sort of commerce with the user (or in my eyes, the used, since you are nothing but data for them to sell).

        –AJ

        • Michael

          @AJ

          Jo’s comment had nothing to do with the government legally blocking access to Facebook. Her comment was:

          “The government says it’s ok to use but they [Facebook] don’t let us use it.”

          Her question was:

          “… when entities such as Facebook ban registered citizens from using their site and actively hunt them down and delete their accounts, why is this important?”

          Packingham has absolutely nothing to with her question. Packingham has nothing specifically to do with Facebook banning sex offenders.

          The answer that best answers her question is, Facebook can do whatever it wants. You’d have the burden of proving beyond a preponderance of the evidence that Facebook did something illegally. Because Facebook no doubt uses legal counsel when writing it’s privacy policy and terms of service agreements, you can bet that there is something in there that you agreed to when creating you account that allows them to ban you at any time for any reason.

          Also note that section 230 of the Communications Decency Act [ 47 U.S.C. § 230. Section 230(c)(1)] provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by others.

          “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

          Therefore there is actually legislation that has allowed website owners to do things you might considered illegal.

          ….

        • AJ

          @Michael
          Settle down, brother.

          1. I was addressing Jo as I replied to AlexO’s post. So my tangential reference to Packingham was just fine, tyvm.
          2. Your diatribe which started with, “Facebook can do whatever it wants,” was pretty much what I said that in my post (“FB can deny service to pretty much anyone not in a protected class simply by choice”). They cannot, however, deny service due to someone being a member of one or any federally protected class. Nobody can. If you think FB or any other online presence can, I suggest you do a bit of research on businesses that have lost legal battles regarding weddings of homosexuals, as well as the repeatedly-kicked-down-the-road (16 times!) Masterpiece Cakeshop petition that’s before SCOTUS. (http://www.insidetucsonbusiness.com/news/when-is-refusing-service-legal-and-when-is-it-discrimination/article_305de452-a55b-11e3-8245-001a4bcf887a.html)
          3. I’m well aware of the CDA and its provisions.
          4. Is New Person related to you?

          –AJ

        • Michael

          @AJ

          2. That’s just it. How do YOU prove discrimination? I can’t see you. I can only assume you are male because you use a male’s name as your moniker. I have no idea what your race is, or if you are disabled. You could post an image of a fat, black woman in a wheelchair on Facebook, but that does not prove you are fat, black, female or disabled.

          Up until just recently, Facebook allowed advertisers to target users based on their race, their gender, or a medical condition. No one cared. No one sued.

          Also note, I looked and I can’t find a case where someone sued, let alone successfully sued any website on the basis of protected classism.

          Who gets married over the Internet? How many legal battles were over gay Internet marriages or virtual gay wedding cakes?

          Your link has absolutely NOTHING to do with Internet websites. Brick + mortar businesses are a horse of a different color.

          3. Are you?

          4. How would I know?

          Herein lies the problem. You are trying to compare sunflower seeds to toe nails. One you’d eat, the other you wouldn’t… or would you?

          P.S. I am completely relaxed.

          ….

        • AJ

          “[Y]ou use a male’s name as your moniker.”
          Somebody should let AJs Applegate, Lee, Verdelle, Khan, Bailey, Lynn, Cook, Michalka, Langer, and Odudu, among others, know that they are using “male names.”

          “[F]at, black, female or disabled”
          Apparently “fat” (whatever objective standard that is) is now a protected and/or suspect class.

          I may or may not be “a website developer and hosting provider” and/but I understand logic and if-then fallacies. (http://www.philosophicalsociety.com/logical%20fallacies.htm#if-then): “IF A, THEN B” does not mean “IF B, THEN A.” Or in example, “IF bigot, THEN says Barry O.” does not mean “IF says Barry O., THEN bigot.” (https://all4consolaws.org/2017/05/pa-police-warning-of-fake-sex-offender-notification-letters/#comments)

          –AJ, who may or may not be “fat”, black, female and/or in a wheelchair.

        • Michael

          Your case is unmeritorious. You can be blocked from any website for any reason and there isn’t anything you can do about it. Period.

          ….

        • AJ

          @Michael
          Your reply to the post I made to the board in general (thus the lack of @_______, such as you see above) has no connection to what I wrote. I made no mention of a case, “mine” or otherwise, nor of any website. Not wanting to assume, judge, or ascribe traits and behaivors to anyone without cause or merit as some people are wont to do, perhaps you meant to attach it to a relevant posting somewhere else?

          –AJ, who may or may not follow the nesting of posts and replies this site allows.

        • AJ

          @Michael
          “You can be blocked from any website for any reason and there isn’t anything you can do about it. Period.”

          You seem to think the CDA grants absolute immunity and protection. If so, you may want to rethink that.
          https://www.eff.org/deeplinks/2016/07/dangerous-trend-us-courts-may-have-consequences-online-speech
          Or, if that’s not enough:
          http://blog.ericgoldman.org/archives/2016/06/wtf-is-going-on-with-section-230-cross-v-facebook.htm

          Back to the quote of yours at the top of my post. What do you suppose will happen if you have a website that bars members of a protected class from information regarding housing opportunities? To help you with your verification process to keep out Asians, or Hispanics, or those of Middle Eastern descent (they’re all Muslims, after all…), you can use the 23andMe API (https://www.buzzfeed.com/stephaniemlee/your-23andme-dna-can-be-used-in-racist-discriminatory-ways?utm_term=.bov8WxRjV9#.iqA4mk3078).

          Give it a go, and I wish you well defending yourself. Oh wait, nevermind… (https://en.wikipedia.org/wiki/Fair_Housing_Council_of_San_Fernando_Valley_v._Roommates.com,_LLC) Quoting from the EFF link above, ” the court held that a website could not claim Section 230 immunity from an anti-discrimination lawsuit where it required its users, as a condition of accessing its service, to answer specific questions—which violated housing laws—by choosing among a set of pre-populated answers provided by the website.” Huh.

          So please, go ahead and block women, or those with genetic disabilities, or Jews from your website *because* they are women, disabled, or Jewish. That would be “for any reason,” right?

          Then again, perhaps all those cases are unmeritorious.

          –AJ

        • AJ

          @Michael
          “Up until just recently, Facebook allowed advertisers to target users based on their race, their gender, or a medical condition. No one cared. No one sued.”

          Another falsehood from your fingertips. If nobody cared, did such functionality just stop on its own? That Facebook stopped allowing such targeting demonstrates someone within the company cared. It’s doubtful it was anyone in marketing or sales, as those departments are not in the habit of killing money-making endeavors. It would more likely have been legal and/or public relations, or perhaps Mr. Zuckerberg himself. Regardless of the argument of legality, someone did care.

          “How many legal battles were over gay Internet marriages or virtual gay wedding cakes?”
          Zero. Sexual orientation is not a protected class under Federal law. (https://www.apnews.com/76085483410e4bc4a22c81a75b9483de/Appeals-court:-US-law-doesn%27t-cover-sexual-orientation-bias)

          –AJ

      • Michael

        I have been a website developer and hosting provider since 2003. I can tell you that you have no constitutional right to access any other website. You have no constitutional right to speech on any other website. So, Facedbook can ban/block you for any reason it wants.

        I can block entire cites, states or countries from accessing any server in my control, and there’s nothing anyone can do about it.

        ….

  5. JohnDoeUtah

    This will be the second time SCOTUS has been asked this question. They refused to take cert in Doe v. Shurtleff. Wonder if they will refuse this one as well.

    • AJ

      @JohnDoeUtah
      Thanks for that reference to the prior case with Shurtleff (http://caselaw.findlaw.com/us-10th-circuit/1546640.html). There’s a major difference between IL’s current law and UT’s law back then: IL releases the Internet IDs to the public.

      As quoted in the case, of which Gorsuch was one of three trial judges, “the legislature amended Utah’s Government Records Access and Management Act, or GRAMA, to designate certain information provided by an offender, including internet identifiers, as private.” The footnote to this citation goes on to explain that, “[i]nformation designated as ‘private’ by GRAMA may only be disclosed in limited circumstances such as when requested by the subject of the record, or pursuant to a court order or legislative subpoena.”

      Obviously this was, and is, all done under the umbrella of 80% recidivism. It’s only if and when that data can get properly refuted before a reasonable court will we see any progress. We had that with the 6th and Snyder…let’s hope SCOTUS is similarly enlightened.

      –AJ

      • JohnDoeUtah

        We shot back at the Statement by the 10th Circuit Court of Appeals in our petition for cert., that the State publicly releasing the information was irrelevant. The United States Constitution does not protect my First Amendment rights when it comes to the public – and thus the 10th Circuit’s reasoning completely missed the mark and scope of the First Amendment. The First Amendment places the restriction against Congress (Legislature) from violating our rights to free speech, not the public.

        “Congress shall make no law… abridging the freedom of speech.”

        Prior SCOTUS rulings specifically stated that the right to anonymous free speech, even over the internet, was protected under the First Amendment. So the civil rights violation was on the government stripping us of anonymity by requiring us, under criminal threat, to disclose our otherwise anonymous online speaker boxes to them – the government.

        My lawsuit was not about whether they were going to turn around and publicly disclose my online identities – it was filed because they required me to surrender to the government my civil right to anonymous free speech, which is wholly chilling and “abridging”, in violation of the First Amendment.

        But, SCOTUS didn’t want to take the case. We even asked the Full Tenth to reconsider, which they denied. But, the original panel did amend their order to add a section of First Amendment law never argued by either side to try to bolster their decision – the Secondary Effects Doctrine (which comes from a zoning law case, not a true First Amendment case regarding actual speech).

        But, hell, I am no longer required to register so I have no legal standing anymore either way.

        • Chris F

          In Texas, and likely many states, they ban us from Facebook their own backhanded way.

          They provide all social media with our list of email addresses (they aren’t listed on the public registry) and those sites remove our accounts.

          I would imagine this should be challenged, but I’m sure the government would find some excuse not to apply strict scrutiny or even intermediate scrutiny and allow this by claiming it’s regulatory to allow businesses to monitor sex offenders and protect their customers.

        • AJ

          @Chris F
          I guess I’d first find out what the law says they can and will do with it, i.e. how private is the data. Given that in the eyes of the law a corporation is a person, how can the State release data one person (FB, etc.) and not to another (John Q. Public)? Good old Citizens United confirmed that FB is a person in the courts’ eyes. I’d also poke into the extent to which the State is perhaps giving active notification to certain persons and not others.

          That said, yes, some wrongs just aren’t worth the cost of fighting to (maybe) right.

          –AJ

  6. Chris F

    @NEW PERSON

    “Factor 2 lists the basis for the scheme to be deemed regulatory. The SCOTUS lists specifically WHAT NOT TO DO!”

    That is incorrect. SCOTUS lists items that weren’t done that would make them more likely to consider it punitive or resembling the conditions of parole/probation. They did not say those things would make it so on any individual or even cumulative basis. That was an opinion written by one Justice no matter how many others agreed and can’t be taken as setting an agreed on barrier for legal battles, only consideration.

    I am glad they listed those things for future battles, but I think you are putting too much weight on them setting some type of precedent. I will agree that they are important factors to be focused on thanks to their inclusion in the opinion.

    • AJ

      @Chris F
      Thanks for taking the baton. 🙂 Just remember what George Bernard Shaw said: “Never wrestle with pigs. You both get dirty and the pig likes it.”

      –AJ

      • Chris F

        @AJ

        I guess I like to make sure opinions that may be somewhat correct, but get exaggerated, are brought back down to Earth. After all, it’s exaggerations that got us in this mess, but I’m hoping sticking to real un-exaggerated facts will get us out of it. So in a sense, I guess that means I don’t mind jumping in and getting dirty with the pigs now and then, so it’s all good. 🙂

        • Michael

          @Chris F

          It’s also been said that one can’t fight city hall, or fight his way out of a wet paper bag, but that has never stopped anyone from trying to fight… city hall anyway.

          I don’t know what it’s like being in a wet paper bag, but if fighting to get out of one is anything like debating AJ… 😛

          ….

        • AJ

          @Michael
          “I don’t know what it’s like being in a wet paper bag, but if fighting to get out of one is anything like debating AJ…”

          …it’ll be a miserable failure.

          –AJ

    • New Person

      Chris F wrote:


      1.That is incorrect. SCOTUS lists items that weren’t done that would make them more likely to consider it punitive or resembling the conditions of parole/probation. 2.They did not say those things would make it so on any individual or even cumulative basis. 3.That was an opinion written by one Justice no matter how many others agreed and can’t be taken as setting an agreed on barrier for legal battles, only consideration.

      Sentences 1 and 2 contradict each other.

      Let’s use the converse of your first statement: SCOTUS lists items that [were] done that would make them more likely to consider it punitive or resembling the conditions of parole/probation.

      Where is that threshold that separates regulatory from punitive? Who defined it? Chief Justice Roberts did in his opinion. You implied it by stating what are not traits of probation/parole.

      3. The opinion was of the Chief Justice, not just a justice. He revealed the thought process behind the regulatory scheme using M&M’s seven factors, listing the five main components though. It was important for the Chief Justice to distinguish there were no traits resembling probation/parole. Hence, if a threshold does cross it, then it would be considered punitive.

      Chief Justice Roberts implied the possibilities of the regulatory scheme going AWOL was mere conjecture by stating that Alaska registrations system did not rise to the level of probation/parole. That’s why he listed it in section 2! That was pertinent and a major factor to calling it regulatory, otherwise it is probation/parole, which falls under punitive consequences.

      Section 2 is pertinent such that you can do a direct comparison. Here’s what Alaska’s system does today (2003). Here’s what Alaska system doesn’t do today (2003), as a form of context that it does not have punitive traits. A threshold was crossed given by the context of Chief Justice Roberts’ opinion. Anyone can cite it as it is a public opinion, just like any other case with an opinion written. It can now be used as a reference.

      • Chris F (@ New Person)

        Sorry, I hadn’t been back to this post to see responses.

        I don’t see how sentence 1 and 2 contradict.

        I merely pointed out that the items may make it more likely SCOTUS sees it as punishment, but that it wasn’t guaranteed. The examples SCOTUS gave as clues to what they think are punishment weren’t explained further to include what weight any single item had or even how many items were needed to tip the bar to being punishment. They may very well be way more than enough to be punishment now.

        My point was that their mere list wasn’t a definitive precedent and only examples of what they may consider. A definitive list that could be precedent would be something like the Mendoza-Martinez that SCOTUS specifically listed as the recipe for how they determine if something is punishment.

        We are really almost on the same page on this one, it’s just I believe its a slight exaggeration to say the examples provided set any precedent to cite and claim something punitive instead of just using the existing Mendoza test. They are great to quote and bolster that case though.

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