Doe v. Nebraska
898 F. Supp. 2d 1086
D. Neb.2012Background
- Nebraska LB 97 and LB 285 (2009) enacted new sex-offender registry provisions, including §29-4006(2) consent-to-search/monitoring and §§28-322.05 and 29-4006(l)(k)/(s).
- Plaintiffs challenge these provisions facially and as applied under First Amendment, Due Process, Ex Post Facto, and Fourth Amendment grounds.
- Court previously granted summary judgment on some claims and ordered a trial on others; after trial, court held remaining provisions unconstitutional in substantial respects.
- Doe plaintiffs, all registered sex offenders, were the named participants; expert and lay testimony addressed definitional vagueness and practical impact of the statutes on internet use.
- Court proceedings focused on whether the statutes’ speech restrictions are narrowly tailored and leave ample alternative channels, and whether retroactive penalties and searches violate constitutional limits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment challenge to 28-322.05 and 29-4006(l)(k) & (s) | Section 28-322.05 bans use of broad internet tools; §29-4006(l)(k)/(s) compels disclosure of internet use. | Statutes serve compelling child-protection interests with content-neutral restrictions. | Statutes violate the First Amendment; not narrowly tailored and overbroad. |
| Due Process vagueness of 28-322.05 | Statute is vague and lacks fair notice; chill on speech. | Provisions intended to curb online risks to minors. | 28-322.05 is void-for-vagueness under Due Process. |
| Ex Post Facto applicability | Laws punish retroactively and extend supervision. | Civil regulatory aims under SORNA compliance. | Laws are unconstitutional ex post facto as to targeted offenders. |
| Fourth Amendment as-applied challenge to §29-4006(2) (Doe 24) | Consent-to-search/monitoring improperly infringes privacy. | Parole/supervision contexts may justify broader searches. | As-applied challenge not ripe for Doe 24; facial issues remain unresolved. |
| Who is subject to the remaining provisions | All registrants are subject; harms affect many. | Targeted scope and enforcement mechanics support compliance with policy goals. | Except as noted, statutes unconstitutional on the grounds above; some parts upheld as constitutional for non-applicants. |
Key Cases Cited
- Reno v. ACLU, 521 U.S. 844 (U.S. 1997) (Internet is protected speech warranting scrutiny)
- McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (U.S. 1995) (Anonymous speech protected; First Amendment applies online)
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (Narrow tailoring and ample alternative channels required)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (U.S. 1994) (Regulation may be content-neutral and still require tailoring to avoid suppressing speech)
- Doe v. Jindal, 853 F. Supp. 2d 596 (M.D. La. 2012) (Overbreadth and vagueness concerns in internet-offender bans cited by judge)
- Doe v. Miller, 405 F.3d 700 (8th Cir. 2005) (Ex post facto factors and punitive considerations in evaluating state laws)