FJI attorneys, along with attorneys Valerie Jonas and Beth Weitzner, have secured an important First Amendment victory for individuals on the sex offender registry. As a result of our lawsuit over a law requiring registrants to report their Internet identifiers to the state, a federal judge has issued an Order prohibiting the state from associating an identifier with a particular registrant, thereby protecting registrants’ First Amendment right to anonymous speech. The Order also narrowed the scope of the law by interpreting it to cover only instances where a registrants uses an identifier to communicate directly with another user.
In 2016, a law was about to go into effect that would have effectively banned sex offenders from using the Internet. It would have required registrants to provide to the state every single online username they had and every single website URL that they might visit, before using them. Even if that were possible, the law was written so vaguely as to make it impossible for anyone to figure out what had to be reported. Failure to comply was a third-degree felony. And it applied to everyone on the registry, regardless of whether the underlying crime involved the Internet or whether the registrant posed any risk of recidivism. Because all of this information was made available to the public, the law deterred registrants from speaking online and made anonymous online speech impossible, even though such speech is protected by First Amendment. These onerous requirements would have made Internet use impossible.
In August 2016, we filed a lawsuit seeking a preliminary injunction to prevent that law from taking effect. In September, just days before the law was to take effect, the court agreed with us and enjoined the law, finding that the law violated the First Amendment and was hopelessly vague. The previous version of the law, which required registration of some online identifiers—but was not nearly as onerous as the stricken version—remained in effect. In January 2017, we filed a motion for summary judgment, seeking to enjoin that version as well.
But before the motion was ruled upon, and because of the Court’s preliminary injunction ruling, the state amended the law and replaced it with a new version in June of 2017. That version limited the information that had to be reported, but was still vague and overly broad (for instance, it appeared that registrants must report identifiers for every website visited, regardless of whether they use the site for communication with another person), and still applied to every registrant regardless of whether the crime involved the Internet. Thus, in September 2017, we filed a renewed summary judgment motion attacking that version as well.
After a year-long wait, the judge issued the final order. We won two important victories: First, the judge applied a limiting construction of the law, clarifying that identifiers must be reported only when used for communication directly with another user, and not for every website visited. This had the effect of substantially narrowing the identifiers that must be reported, and also making it significantly easier to determine which identifiers and websites must be reported in the first place. Second, to protect registrants’ First Amendment right to anonymous online speech, the court has prohibited the state from disclosing to the public the identity of a registrant associated with any given username. Thus, registrants can speak anonymously online without fear of harassment.
Although the judge did not strike down the law entirely, the relief we obtained was substantial. In early 2016, we were facing a law that would have made Internet use impossible for registrants. Because of our efforts, that law did not go into effect, the state repealed the then-existing version and replaced it with a narrower one, and the current version has been narrowed even further by the Court. Sex offenders can now use the Internet to stay connected with friends, discuss politics, and run their businesses, with substantially less burdens, and can do so without fear of public humiliation.