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Free Expression

Sixth Circuit Considers Internet Restrictions on Former Sex Offenders This Week

The Center for Democracy & Technology has filed an amicus brief in the Sixth Circuit case Doe v. Snyder, a case challenging unconstitutional registration requirements imposed on former sex offenders and brought by the ACLU of Michigan. CDT is joined on the brief by the First Amendment Lawyers Association and Professor David G. Post, an expert in Internet law. The court is holding oral arguments Wednesday, January 27.

As our colleague and co-amicus David Post has frequently discussed, registered sex offenders face punishing restrictions and state-sponsored public shaming that drastically circumscribe their ability to re-enter society and re-establish standing in their families and communities. Many of the individuals on registries across the country were convicted for crimes involving public exposure or sex between teenagers.

But in a growing number of states, sex offender status has also become a means to exclude individuals from digital life, with grave consequences both for the individuals and their families and communities and for First Amendment protections more broadly.

Registry-based burdens and bans “muzzle” Internet speech

While some Internet restrictions may be individually imposed on an offender as a condition of probation or parole, people who have completed their sentences face crippling restrictions imposed en masse under a growing number of state sex offender registry laws. Registry-based Internet restrictions come in two varieties: bans on registrants’ use of certain websites, such as North Carolina’s social networking prohibition, and burdens on registrants’ creation of usernames and accounts, such as Michigan’s “Internet identifiers” scheme – which requires that registrants inform the authorities of all of their online usernames and accounts used “primarily” for communication purposes.

Requiring registrants to disclose all their usernames and accounts doesn’t expressly ban their use, but burdensome and invasive reporting requirements can still be an effective deterrent for large numbers of registrants. As a federal district court observed in a previous ruling, “whereas 92% of adult Americans use email, fewer than half of non-incarcerated Michigan registrants report having an email address or other Internet identifier.”

Restrictions on Internet identifiers for all Michigan registrants make little sense, given that some 94% of convictions had no connection to computers or the Internet. But the requirement is also counterproductive in an increasingly digital society, which will demand information-economy knowledge and skills across all fields and sectors. It is no longer defensible to say, as one of the architects of the Michigan statutes reportedly argued, that “There are lots of jobs that don’t involve computers.”

As we discuss in our brief, the ability of registrants to exercise First Amendment activities online, including accessing information and engaging in expressive association and speech, fosters development of knowledge and skills related to online research, communication, and networking. These skills in turn augment registrants’ reentry and ability to access opportunities in personal, educational, and professional life.

The danger of accepting “low-value speakers”

Conversely, denying First Amendment protections for registrants’ online speech will diminish the freedom of expression for us all. Evaluating Internet identifier registration requirements under a diluted standard of constitutional review will not only exclude registrants’ voices from public debate, it will set a dangerous precedent for future government regulation of online speech.

Unfortunately, courts evaluating Internet restrictions for former sex offenders have applied a less-rigorous form of “intermediate” scrutiny – a level of First Amendment review that can yield conflicting results for similar statutes, as contradictory decisions from the Ninth and Tenth Circuits have shown. But there are a number of clear constitutional flaws with Michigan’s identifier registration requirement, two of which I highlight below.

First, the Michigan statute essentially functions as a requirement for registrants to obtain government approval in order to speak online. As we note in our brief, “Threatening penalties for future speech goes by the name of ‘prior restraint,’ and a prior restraint is the quintessential first-amendment violation.” A prior restraint conditions the exercise of a First Amendment right on approval of government officials who may have little knowledge of their constitutional obligations. Such licensing or notification schemes traditionally receive the highest form of judicial scrutiny because their impact is so great: they necessarily result in the surrender of the speakers’ anonymity; disproportionately burden religious, political, and other controversial expression; effectively ban a significant amount of spontaneous speech; and generally treat speech as guilty until proven innocent.

Second, the district court wrongly concluded that the identifiers requirement does not infringe registrants’ constitutionally protected right to engage in unidentified expression, because the law does not “unmask their anonymity to the public,” and it wasn’t shown that officials with internal access to the database of SORA identifiers were likely to follow individual registrants’ online activities in real time. But the right to speak without identifying oneself or one’s content to the government is critical – particularly for engaging in expression that may be controversial or highly personal (like, for instance, joining Grindr, “the world’s largest gay social network,” or, an online message board for the Muslim community). The statute prescribes no legal or technical safeguards against unauthorized access, monitoring, or identifier-sharing within or outside of the state government, and offers no protections against the potentially devastating consequences of databreach.

Preventing the spread of status-based restrictions on Internet activity will be essential if we are to avoid a constitutional jurisprudence of “low-value speakers” entitled to fewer rights and protections for their expression – a dangerous legal development that could easily spread to other unpopular, controversial or disenfranchised groups.

Recognizing the severity of Internet prior restraints on registrants – and their consequences for free expression in the digital age – will require a measure of judicial skepticism and rigorous First Amendment review. We urge the Sixth Circuit to hold Michigan’s “Internet identifiers” requirement to that standard and declare it unconstitutional on its face.