Prop 35 Violates the First Amendment

Yesterday morning the U.S. Court of Appeals for the Ninth Circuit heard oral argument in the ACLU of Northern California’s lawsuit with the Electronic Frontier Foundation against Proposition 35. I told the court that Proposition 35 is too broad and violates the First Amendment. As the federal district court has already held, it affects too much protected speech, on too many websites, by too many people who don’t pose a risk of re-offending.

The Supreme Court has repeatedly held that the First Amendment prohibits laws that burden substantially more speech than is necessary to accomplish the government’s goals.  Proposition 35's online-speech regulations prohibit anonymous speech and its reporting requirements, which can result in years in prison for even negligent recordkeeping errors, burden all sorts of online speech.  And they are much broader than they need to be:  they apply to online speech that does not pose any real risk that they can be used to commit a sex or human-trafficking crime:  the comments sections of newspaper websites, for example, and to restaurant reviews on Yelp, or a person’s blog. And they apply to people who committed minor crimes decades ago and have not been in trouble since then, as well as more-than 18,000 people who are not even included on the state’s Megan’s law website because they were only convicted of minor crimes; many of these Californians pose no more risk of committing a new online sex-offense than do people who are not even covered by the law.  

A federal judge agreed, issuing first a Temporary Restraining Order and then a Preliminary Injunction so that the provisions of Prop 35 in question haven’t taken effect.

The ability to speak freely and even anonymously is crucial for free speech to remain free for all of us. Stopping human trafficking is a worthy goal, but this portion of Prop 35 won't get us there. As one of the judge’s remarked at yesterday’s hearing, it’s not clear that it’s even enforceable against people who really do want to use the Internet to commit crimes (if they are already willing to commit a serious crime, why would we expect them to comply with this registration law?).  But we can be sure that this law, if it ever goes into effect, will send lots of people to prison simply for commenting on a news site without registering with the government, or even for making harmless, and unintentional, recordkeeping errors.

You can hear yesterday’s argument here: http://www.ca9.uscourts.gov/media/view.php?pk_id=0000011287

About Prop 35

Proposition 35, passed by California voters in November 2012, restricts the legal and constitutionally protected speech of all registered sex offenders in California. It requires anyone who is a registered sex offender - even people with decades-old, low-level offenses like misdemeanor indecent exposure and people whose offenses were not related to the Internet - to turn over a list of all their Internet identifiers and service providers to law enforcement. The government interprets this to include email addresses, usernames and other identifiers used for online political discussion groups, book and restaurant review sites, forums about medical conditions, and newspaper or blog comments.

Under the law, more than 75,000 Californians would have to provide this information to law enforcement, and must report any new account or screen name within 24 hours of setting it up, even if the new screen name is their own real name. Violations can result in years in prison.

Michael T. Risher is a staff attorney with the ACLU of Northern California.

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