|Photo courtesy of Prop35.tumblr.com|
With the recent Election in November 2012, the state of California passed a controversial ballot initiative known as Proposition 35 or the Californians Against Sexual Exploitation Act, which stated that sex offenders would be monitored in the digital realm. Under the new law, sex offenders in California must inform authorities of their e-mail addresses, user names, and screen names. Sex offenders must inform authorities of any changes made to Internet handles within 24 hours (The New York Times). Proposition 35 also deals with prison terms for human trafficking.
Despite the fact that the information provided by the sex offenders will not be included in the public registry that lists names and addresses of sex offenders, the American Civil Liberties Union brought about a lawsuit against the new law arguing that the new requirements violate the First Amendment because they infringe on the right to free, anonymous speech on the Internet. Additionally, the Electronic Frontier Foundation sued to block portions of the law. Both groups claimed that the new law restriction regulations concerning online speech are very broad. Originally, two registered sex offenders and a group called California Reform Sex Offender Laws filed the actual lawsuit on November 7, 2012. In contrast, California’s Attorney General Kamala Harris defended the ballot measure, which was voter-approved. Attorney General Harris denied any claims that the law was unconstitutional.
The issue here is whether or not California’s Proposition 35 violates the First Amendment rights of free speech and free association. In California, there are currently 75,000 registered sex offenders that would be required to turn over all of their online login information. One question that needs to be answered is whether or not the new law is narrowly tailored to California’s government’s specific interest in fighting online sex offenses. Plaintiffs stated that the new law is so broadly written that sex offenders could be required to turn over their bank account login information (The Huffington Post). Other people argue that Proposition 35 severely limits the Internet freedom of sex offenders whose crimes were completely separate from the online realm. No one is denying that stopping human trafficking is an important goal of Proposition 35, but the part of the proposition that limits Internet freedom of all sex offenders is not essential in limiting human trafficking. The law is basically further punishing all sex offenders, including those who have already completed their probation or parole terms, by not granting them full protection of the First Amendment.
|Photo courtesy of againstthecaseact.com|
Recently, a federal judge in San Francisco issued an injunction on January 11 to stall the implementation of California’s Proposition 35 that was approved by 81 percent of California voters. Federal Judge Thelton Henderson wrote, “it is undisputed that speech by sex offenders who have completed their terms of probation or parole enjoys the full protection of the First Amendment” (The Huffington Post). Additionally, Henderson stated that he is not convinced that limiting the anonymous speech rights of all sex offenders in California is narrowly tailored to the interest of the government in fighting online sex offenses. The American Civil Liberties Union in California believes that halting Proposition 35 is a key step in making sure that the First Amendment is not ignored. Henderson’s injunction prevents Proposition 35 from being enforced until the case is concluded. One of the main supporters of Proposition 35 is Chris Kelly, a one-time chief privacy officer for Facebook. Kelly believes that the law would simply add “an extra field in the database of what sex offenders have to register” (The New York Times).
When looking at the likely outcome of this case, it is important to look at Simon & Schuster, Inc. 4 v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991). In 1991, this ruling shot down a New York law that attempted to interfere with criminals’ profiting from works involving/describing their criminal actions (Simon & Schuster, Inc. V Members of the New York State Crime Victims Board). Although Proposition 35 does not openly ban anonymous online speech, it interferes with California sex offender’s rights to free and anonymous online speech. California lawmakers are attempting to censor online speech rights of sex offenders by monitoring them constantly.
The court will likely use strict scrutiny because the test states that a law must be narrowly tailored to the government’s legitimate interests. Many argue that Proposition 35 is constitutional when concerning the prison terms for human trafficking, but is unconstitutional because limiting the online speech rights of sex offenders is not of important government interest. The speech in Proposition 35 is extremely broad, and could apply to many Internet logins used by sex offenders. Under strict scrutiny, the law must be of the least speech-restrictive means in order to advance the interest of the government. With Proposition 35, the requirements are not narrowly tailored and they restrict the online speech rights that sex offenders are granted under the First Amendment. The state of California will argue that Proposition 35 is not suppressing freedom of expression, but that it is aiding in the fight against sex crimes. Ultimately, the court will have to decide if Proposition 35 is a hidden attempt to prevent Internet speech by a large group of criminals.
Overall, it is unknown if judge Henderson’s injunction will be upheld or if the court will overturn it. It is being heard because an overwhelming majority of voters in California voted to pass the proposition and because sex offenders have a legitimate lawsuit against it.