Tuesday, November 18, 2014

A Portion of California’s 2012 Proposition 35 (Californians Against Sexual Exploitation Act) to Fight Human Trafficking is Ruled Unconstitutional By the 9th Circuit US Court of Appeals Because it Tramples on Free And Anonymous Speech of Registered Sex Offenders



Convicted sex offenders, Jehovah’s Witnesses, and the First Amendment, November 19, 2014


California can't enforce rules tracking sex offenders online, court rules, November 18, 2014
By Karen Gullo

San FranciscoCalifornia can't enforce a law to combat sex trafficking because it tramples on free speech rights of sex offenders by requiring them to report online activities, such as their Twitter, e-mail and chatroom accounts, a U.S. appeals court ruled. 

The San Francisco-based court Tuesday upheld a judge's decision to block enforcement of a voter-approved law that was backed by former Facebook Inc. executive Chris Kelly and garnered support from more than 80 percent of California voters in 2012. 

The measure, known as Proposition 35, isn't clear about what accounts or Internet service providers offenders are required to report and targets online speech that could include blogging about politics and posting comments on news articles, the appeals court's three-judge panel said Tuesday. 

The law also harms sex offenders' ability to engage in anonymous speech because it allegedly allows police to disclose their online identities to the public, the court said. Failure to report on Internet activity can lead to criminal sanctions.

A requirement that registered sex-offenders notify police within 24 hours of using a new Internet identity chills activity protected by the U.S. Constitution's First Amendment, U.S. Circuit Judge Jay S. Bybee wrote in the unanimous ruling.

Attorneys for the law's backers had argued it doesn't regulate the speech of sex offenders and would give police a head start to investigate when a parent reports that a child has been communicating with a stranger online and was going to meet that person. 

While the state has a legitimate interest in preventing sexual exploitation and human trafficking, California officials didn't show that blocking the law would seriously hamper the ability of law enforcement to investigate online sex offenses because there are other methods to do so, the court said. 

"There will be some hardship on the state," the court said. "Nevertheless, the balance of equities favors" the sex offenders who sued to overturn Proposition 35, "whose First Amendment rights are being chilled." 

David Beltran, a spokesman for California Attorney General Kamala Harris, who defended the law, didn't immediately respond to an e-mail seeking comment on the ruling. A call to Harris's press office wasn't immediately returned. 

Two unidentified California sex offenders and the American Civil Liberties Union filed named Harris and Kelly as defendants in their 2012 challenge to provisions of the Californians Against Sexual Exploitation Act.

The ruling in Doe v. Harris, No. 13-15263 (9th Cir. Nov. 18, 2014) is available here


Older Articles About Proposition 35, How it was Sold to the Public (latest to oldest): 

Proposition 35 And Why Anonymity Is Good For You, November 14, 2012

Prop 35 Passes: California Voters Approve Harsher Sentencing For Human Traffickers, November 7, 2012

Vote Yes on Prop. 35 to Fight Human Trafficking in California, November 3, 2012

Moms On a Mission With Jada Pinkett Smith, November 1, 2012

Prop 35: Increasing Penalties For Human Trafficking Convicts, October 23, 2012