Federal Appeals Court Strikes Down Michigan’s Punitive Sex Offender Law

Last week, the Sixth Circuit issued its decision in Doe v. Snyder, a case challenging state sex offender registry requirements in which CDT participated as amici. We argued that Michigan’s strict requirements for registrants to disclose their online identifiers to the authorities violated their First Amendment rights to speak without permission and self-identification. We won, in a sense: the federal court of appeals struck down Michigan’s registry law as an unconstitutional retroactive punishment, in violation of the Ex Post Facto clause.

The court didn’t decide the case on First Amendment grounds — which we argued in our briefs was violated by the law’s requirement that former sex offenders disclose all of their social media accounts to the authorities. But we have reason to take heart in this decision as a turning point in the way groups are singled out and denied their expressive rights, including their right to connect with others online without seeking the government’s permission first.

As Slate noted, the appellate court’s departure from a long line of case law upholding harsh sex offender restrictions was significant, indicating that parts of the judiciary have “finally begun to view draconian sex offender laws as the unconstitutional monstrosities they obviously are.”

With the enormous growth of IT, taxi drivers, medical professionals, administrative support staff, and mechanics will need digital networking and communication skills in the future. Enforced technical disabilities undermines former offenders’ efforts to expand their skillset, find employment, and reenter society after a period of incarceration.

Our co-amici, Internet law expert David Post, writes that by concluding that Michigan’s sex offender registry was a retroactive punishment, the court implicitly acknowledged that the restrictions on registrants’ residence, line of work, educational opportunities, and Internet access were a form of punishment, inflicted on individuals who had already served their sentences.

It’s clear that the punishing restrictions imposed by many state registry laws are intentionally so. But requiring former offenders to register all of their online accounts and identifiers is as misguided as it is punitive. A computer science major who can’t create an account without permission from her registering authority cannot hope to work as a professional technologist today. With the enormous growth of IT, taxi drivers, medical professionals, administrative support staff, and mechanics will need digital networking and communication skills in the future. Enforced technical disabilities undermines former offenders’ efforts to expand their skillset, find employment, and re-enter society after a period of incarceration.

Social media bans and burdens, including compulsory disclosure of individuals’ usernames and accounts, place too high a threshold on the exercise of First Amendment freedoms in the digital age. We’re pleased the Sixth Circuit implicitly recognized the punitive nature of compulsory disclosure of Internet identifiers in rendering its decision.