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Media Alerts - Doe v. Harris - Ninth Circuit
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December 11, 2014
  Doe v. Harris - Ninth Circuit
Headline: Ninth Circuit affirms the district court's preliminarily injunction against enforcement of the Californians Against Sexual Exploitation Act.

Area of Law: Constitutional Law, First Amendment right to free speech for registered sex offenders.

Issue Presented: Whether the Californians Against Sexual Exploitation ("CASE") Act infringes the First Amendment freedom of speech of sex offenders when it requires them to provide a "list of any and all Internet identifiers established or used by the person . . . [and a] . . . list of any and all Internet service providers used by the person."

Brief Summary: Appellees ("John Doe, Jack Roe") represent a class of registered sex offenders.

Appellees asserted the CASE Act violates their First Amendment rights to freedom of speech and association and the provisions of the act are void for vagueness in violation of the Fourteenth Amendment. The district court concluded the Act is content neutral and applied a level of intermediate scrutiny to its review.

The district court determined the Act was not narrowly tailored to serve the government's important interest in combating human trafficking and sexual exploitation because the "challenged provisions . . . create too great a chilling effect to pass constitutional muster."

The Ninth Circuit Court of Appeals, upon review, applied an abuse of discretion standard when it reviewed the district court's decision. It agreed with the district court's finding the Act is content neutral. It also found the Act did not make speaker based distinctions since the Act does not target political speech. Therefore, the Ninth Circuit also applied intermediate scrutiny in its analysis.

The Ninth Circuit concluded "the CASE Act unnecessarily chills protected speech in at least three ways: the Act does not make clear what sex offenders are required to report, there are insufficient safeguards preventing the public release of the information sex offenders do report, and the 24-hour reporting requirement is onerous and overbroad."

In order to receive a preliminary injunction, a plaintiff must show a demonstrated likelihood of success on the merits of their claim. In addition, they must show it is likely they will (1) suffer irreparable injury in the absence of a preliminary injunction, (2) a balance of equities favor the injunction, and (3) an injunction favors the public interest.

The Ninth Circuit concluded "the district court did not abuse its discretion in deciding that all the necessary elements for obtaining a preliminary injunction [were] satisfied . . . ," and affirmed the district court's judgment.

Extended Summary: Appellees ("John Doe, Jack Roe") represent a class of registered sex offenders who are Internet users. They use the Internet to advocate anonymously on behalf of sex offenders and to comment on news articles, forums, and blogs. After the CASE Act was passed, Appellees filed suit against its enforcement.

The district court granted Appellees' motion for a preliminary injunction. The district court used an intermediate level of scrutiny in its analysis, after determining the Act was content neutral.

The court first considered whether a "narrowing construction" of the Act would clarify ambiguities in the Act. Both parties agreed to the narrower construction. First, the court construed the requirement for registered sex offenders to provide a "list of any and all internet providers used by the person" as meaning only ISP's with which they had open accounts at the time of registration, rather than all ISP's accessed by the registrant. The district court also interpreted the Act as requiring registrants to report only identifiers they used to engage in "interactive communication" and not those used solely to purchase products or read online content.

Even narrowed this way, the district court concluded the CASE Act is not narrowly tailored to serve the government's important interest in combatting human trafficking and sexual exploitation. "[T]he challenged provisions, when combined with the lack of protection on the information's disclosure and the serious penalty registrants face if they fail to comply with the reporting requirements, create too great a chilling effect to pass constitutional muster."

The district court further concluded the loss of First Amendment freedoms is an irreparable injury. It therefore granted Appellees' motion for a preliminary injunction and enjoined the State from enforcing provisions of the Act.

The State and Intervenors appealed.

The Ninth Circuit stated for a plaintiff to succeed in seeking a preliminary injunction, it must establish (1) the likelihood of success on the merits, (2) the likelihood of irreparable harm if the injunction is not granted, (3) the balance of equities tips in favor of an injunction, and (4) the injunction is in the public interest.

The Ninth Circuit further stated for a First Amendment claim, once the plaintiff establishes likely success on the merits, the burden shifts to the government to justify its speech-restrictive law. The standard of review for the district court's decision to grant a preliminary injunction is abuse of discretion. The district court's legal conclusion is reviewed de novo, and the district court's findings are reviewed for clear error.

The Ninth Circuit applied intermediate scrutiny, as did the district court, and concluded Appellees were likely to succeed on the merits of their First Amendment challenge.

The Ninth explained the reasoning for its conclusion First Amendment scrutiny was warranted.

First, the Ninth Circuit reasoned there is a continuum of possible punishments which "bring[] about the necessary withdrawal or limitation of many privileges and rights." Prison is at one end of this continuum, while parole is in the middle and probation is at the other end. Sex offenders who have completed the terms of their probation and parole are no longer even on this continuum and are therefore entitled to full First Amendment protection, even though they are still subject to reporting requirements. These requirements must be viewed as a collateral consequence of conviction rather than as a restraint.

Then, the Ninth Circuit applied the facts in Minneapolis Star & Tribune v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983) (a tax on ink and paper which burdened specific publishers' ability to engage in free speech), and distinguished the facts of Arcara v. Cloud Books, Inc., 470 U.S. 697 (1986) (a raid on a house of prostitution which happened to be located in the back of an adult bookstore had nothing to do with books). Based on this analysis, the court concluded the CASE Act implicated the First Amendment, as it significantly burdens a narrow class of individuals for precisely one purpose - communicating on the internet.

Finally, the Ninth Circuit compared McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) (where the court held a statute which required campaign literature to include the names of the distributers impeded First Amendment activity) to the present case, and concluded the CASE Act disclosure requirement similarly burdened sex offender's ability to engage in anonymous online speech.

The Ninth Circuit then looked to the level of scrutiny warranted by the case. Since the Act made no reference to specific subject matter or viewpoints, the Ninth Circuit determined the Act was content neutral and should be reviewed using intermediate scrutiny.

The Ninth Circuit further reasoned although the CASE Act does make speaker-based distinctions, these distinctions are unrelated to the content or to the expression of ideas. The Act does not target political speech, or make a ban on speech. The Act's purpose is not to target speech but to "combat the crime of human trafficking," and to "strengthen laws regarding sexual exploitation."

The Ninth Circuit then applied the intermediate scrutiny test to the CASE Act. They concluded the Act is clearly intended to serve a legitimate interest. Protecting Californians from sexual exploitation is of paramount importance. Predatory use of the Internet is a new means for offenders to entice and prey upon vulnerable individuals. Lastly, there is a strong link between child pornography and the Internet, so there is demonstrably a need to protect the public from sex offenders.

But, as the Court noted, "the question is whether the means California has chosen 'burden[s] substantially more speech than is necessary to further the government's legitimate interests.'" The Ninth Circuit concluded the Act unnecessarily chills free speech in at least three ways.

First, the Ninth Circuit noted the Act is ambiguous. "One provision requires registered sex offenders to report only ISP's with which they have an open account." "One provision requires registered sex offenders to report when they add or change an 'account with an Internet service provider." "ut another provision requires them to disclose 'any and all Internet service providers used by the person." These ambiguities may lead registered sex offenders to either over-report their activity or underuse the Internet in an effort to avoid these uncertainties. In conclusion, this undermines the likelihood the Act was narrowly tailored, and results in citizens significantly curtailing lawful activity to avoid running afoul of the Act.

Secondly, the Act burdens sex offenders' ability to engage in anonymous speech. Any designated law enforcement organization may provide information to the public by whatever means it deems appropriate, whenever it determines it is necessary to do so, in order to ensure public safety. The concept of "Public safety" is much too broad a concept to serve as an effective constraint on law enforcements' decisions to disclose. In turn, this creates unbridled discretion on the part of public officials to make these disclosures. The Supreme Court found this unfettered discretion unconstitutional in City of Lakewood v. Plain Dealer Publ'g, 486 U.S. 750 (1988) (explicit limits are required on an official's discretion, saying it's a matter of 'Public safety' is not enough). The fear of disclosure caused by the Act would chill the speech of sex offenders due to their fear of harassment, retaliation or intimidation.

Lastly, the 24-hour reporting requirement was found to be too burdensome by the Ninth Circuit. The Court stated that every time offenders "want to communicate with a new identifier, they must assess whether the message they intend to communicate is worth the hassle of filling out a form, purchasing stamps, and locating a post office or a mailbox." The Ninth Circuit concluded the requirement is psychologically chilling, and physically inconvenient. It is onerous, and applied in an across-the-board fashion.

The Ninth Circuit then examined the irreparable harm, balance of equities and the Public Interest. It concluded the district court did not abuse its discretion in finding all elements were met. They stated the loss of First Amendment rights "unquestionably constitutes irreparable injury." The Ninth Circuit held regarding the balance of equities, while the suit is pending, the State will experience some hardship, but the hardship pales in comparison to Appellees' interests. Compared to some State hardship, Appellees' First Amendment rights are chilled and they are subject to criminal sanctions. Lastly, "the public interest favors the exercise of First Amendment rights."

For these reasons, the Ninth Circuit held "the district court did not abuse its discretion by granting Appellees' motion to preliminarily enjoin provisions of the CASE act.

For the full opinion:
http://cdn.ca9.uscourts.gov/datastore/opinions/2014/11/18/13-15263.pdf

Panel: Mary M. Schroeder and Jay S. Bybee, Circuit Judges, and Robert J. Timlin, Senior District Judge.

Date of Issued Opinion: November 18, 2014

Docket Number(s): 13-15263 and 13-15267

Decided: Affirmed

Case Alert Author: Michael Zatlin

Counsel: Kamala D. Harris, Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Peter K. Southworth, Supervising Deputy Attorney General; Robert D. Wilson (argued), Deputy Attorney General, Office of the Attorney General of the State of California, Sacramento, California, for Defendant-Appellant. James C. Harrison (argued), Margaret R. Prinzing, Remcho, Johansen & Purcell, LLP, San Leandro, California, for Intervenors-Appellants. Michael T. Risher (argued), Linda Lye, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, California; Hanni Fakhoury, Lee Tien, Electronic
Frontier Foundation, San Francisco, California, for Plaintiffs-Appellees.

Author of Opinion: Bybee, Circuit Judge.

Case Alert Circuit Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 12/11/2014 08:48 PM     9th Circuit  

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