In this appeal, we address the constitutionality of Connecticut’s version of “Megan’s Law,” Conn. Gen.Stat. §§ 54-250-261 (2001), amended by 2001 Conn. Legis. Serv. 01-84 (West), which requires people convicted or found not guilty by reason of mental disease or defect
We are keenly aware of the legitimate and pressing importance that the Connecticut legislature attaches to the State’s ability to disseminate information about former sex offenders, principally in order to protect the health and welfare of the State’s children. The particular legislative instrument it has chosen to employ, however, is too blunt to achieve that end properly. It fails to accommodate the constitutional rights of persons formerly convicted
BACKGROUND
I. The Connecticut Law
Like every other state,
Registration requirements vary depending on the type of crime for which a particular person is convicted and thereby becomes subject to the registration law. A person convicted of a criminal offense against a minor or of a nonviolent sexual offense must register with the Connecticut Department of Public Safety (“DPS”) for ten years beginning within three days following his or her release into the community. See id. § 54-251(a). In addition, a person convicted of a felony committed for a sexual purpose can also be required to register for ten years at the discretion of the sentencing court. See id. § 54-254(a). Finally, a person convicted of a sexually violent offense must register for the remainder of his or her life. See id. § 54-252(a).
Each registrant must provide the DPS with his or her name, “identifying factors” including fingerprints, a photograph, a list of other identifying characteristics, and a blood sample for DNA analysis, see id. § 54-250(3), criminal history record, and his or her -residence address, see id. §§ 54-251(a), 54-252(a), 54-254(a), which must be verified once a year, see id. § 54-257(c).
A person convicted of a sexually violent offense also must provide “documentation of any treatment received for mental abnormality or personality disorder,” see id. § 54-252(a), and must verify his or her address once every ninety days, see id. § 54-257(c).
Certain additional obligations apply to all registrants regardless of their underlying conviction. Anyone subject to the law who moves to a new residence must inform the State of his or her new address within five days. See id. §§ 54-251(a), 54-252(a), 54-254(a). If a registrant regularly travels into or temporarily resides in another state, he or she must register with the responsible agency there and comply with whatever additional duties that state imposes on sex offenders.
B. Disclosure and Public Notification
The statute also obligates DPS to compile the information gathered through the registration process in a central registry and to share that information with local police departments, state police troops, the
The DPS must also make the registry-available to the public “during normal business hours.” Id. § 54-258(a)(l). And the DPS is required to post registry information on the Internet, see id. § 54-258(a)(1), something it did until the practice was enjoined by the district court in this litigation. The DPS, also pursuant to statutory prescription, “[n]ot less than once per calendar quarter ... [is required to] issue notices to all print and electronic media in the state regarding the availability and means of accessing the registry.” Id. Local police departments and state police troops are required to make the registry available for public inspection during office hours. See id. The following warning must be posted wherever the registry is open to public view: “Any person who uses information in this registry to injure, harass or commit a criminal act against any person included in the registry or any other person is subject to criminal prosecution.” Id. § 54-258a.
The primary means of disseminating registrant information to the public was the “Sex Offender Registry” Internet database maintained by the DPS,
Sometime between December 1998 and May 1999, the following statement was added to the first page of the Sex Offender Registry website:
This information is made available for the purpose of complying with Connecticut General Statutes § 54-250, et seq..... The registry is based on the legislature’s decision to facilitate access to publiely-available information about persons convicted of sexual offenses. The Department of Public Safety has not considered or assessed the specific risk of reoffense with regard to any individual prior to his or her inclusion within this registry, and has made no determination that any individual included in the registry is currently dangerous. Individuals included within the registry are included solely by virtue of their conviction record and state law. The main purpose of providing this data on the Internet is to make the information more easily available and accessible, not to warn about any specific individual. Anyone who uses this information to*45 injure, harass, or commit a criminal act against any person included in the registry or any other person is subject to criminal prosecution.
For part or all of the time it was accessible, the website contained the message: “This information is made available for the purpose of protecting the public.”
C. Exclusions and Restrictions
Certain people who would otherwise fall within the scope of the law are eligible for relief from these provisions. Two narrow categories of offenders need not register at all if a court so orders upon a finding that “registration is not required for public safety”: anyone who was convicted of engaging, while under nineteen years of age, in sexual intercourse with a victim who was between thirteen and sixteen years old but at least two years younger than the perpetrator; and anyone who was convicted of subjecting another person to sexual contact without the victim’s consent. See Conn. Gen. Stat. § 54 — 251(b), (c).
A court has discretion to order the DPS to restrict public dissemination of information about two other classes of registrants — those who were convicted either of sexual assault in a spousal or cohabiting relationship or of any crime involving a victim under the age of 18 to whom the offender is related — if the court finds that publication is not required for public safety and would reveal the identity of the victim. See id. § 54-255(a), (b). A registrant who has committed one of several specified offenses between October 1, 1988 and June 30, 1999 may petition the court for an order limiting the dissemination of his or her registration information to law enforcement purposes, provided that the court finds that such a limitation would not threaten public safety. See id. § 54-255(c). This right of petition is also afforded to a person who had been convicted between October 1, 1988 and September 30, 1998 of a crime within the purview of the sex offender law provided that he or she did not serve jail time for the original conviction, has not subsequently been convicted of another crime covered by the law, and has registered with the DPS. See id.
Apart from whatever determinations are made in the course of these proceedings, neither the DPS nor any other agency responsible for administering the registration law affords a person subject to the law an opportunity to be heard on the issue of whether he or she is dangerous or a threat to public safety before requiring that person to register and disclosing the information about him or her to the public.
II. Parties
According to the plaintiffs Fourth Amended Complaint, the plaintiff is a Connecticut resident who has been convicted, based on conduct preceding the law’s effective date, of an offense that subjects him to the registration and notification requirements of the .Connecticut registration law. He alleges that he “is not a dangerous sexual offender and does not pose a threat ... to the community.” The plaintiff also represents a class certified by the district court on May 18, 2001 that is defined as “all persons who are subject to the registration and public disclosure requirements of Connecticut’s sex offender registry act, Connecticut General Statutes §§ 54-250 et seq., without notice and an opportunity to be heard on the question whether they are dangerous.”
The defendants are Connecticut agencies and directors or commissioners of those agencies with responsibilities for the administration of the registration act, all of whom are sued in their official capacities.
III. Procedural History
On February 22, 1999, the plaintiff filed suit under 42 U.S.C. § 1983 alleging that
The plaintiff moved for summary judgment on July 9, 1999. The defendants cross-moved for summary judgment two months later. The district court ruled on these motions on March 31, 2001, granting summary judgment to the plaintiff on the due process claim and to the defendants on the ex post facto challenge.
With respect to the due process issue, the court held that the plaintiff had satisfied the “stigma plus” test derived from the Supreme Court’s decision in Paul v. Davis,
On April 18, 2001, the plaintiff filed motions for certification of the due process claim class, for a declaratory judgment, and either for preliminary and permanent injunctive relief on behalf of the class or, in the alternative, for a preliminary injunction in favor of himself. The court issued a permanent injunction on May 17, 2001, prohibiting the defendants from “disclosing or disseminating to the public, either in printed or electronic form (a) the Registry or (b) Registry information concerning a member of the due process class if the information identifies the class member as being included in the Registry” and from “identifying any member of the due process class as being included in the Registry.” Doe v. Lee, No. 3:99CV314,
The defendants immediately moved the district court for a stay of the injunction, which the court denied on May 18, 2001. A divided panel of this Court denied a similar motion after oral argument on June 5, 2001, but expedited the parties’ appeal and cross-appeal of the district court’s final judgment, which had also been entered on May 18, 2001.
DISCUSSION
I. Standard of Review
We review a district court’s grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party. Tenenbaum v. Williams,
II. Procedural Due Process Claim
We first address the defendants’ appeal from the district court’s judgment with respect to the due process claim.'
The parties agree, as do we, with the district court’s conclusion that the “stigma plus” test, first set forth in Paul, governs the defendants’ appeal. In Paul, the Supreme Court held that in order to state a claim under 42 U.S.C. § 1983 for a violation of the Due Process Clause, a plaintiff who complains of governmental defamation must show (1) the utterance of a statement about him or her that is sufficiently derogatory to injure his or her reputation, that is capable of being proved false, and that he or she claims is false, and (2) some tangible and material state-imposed burden or alteration of his or her status or of a right in addition to the stigmatizing statement. Paul,
A. The “Stigma”
A “stigma” is “[a] mark or token of infamy, disgrace, or reproach.... ” The American Heritage Dictionary of the English Language 1702 (4th ed.2000). Publication of the Connecticut Sex Offender Registry plainly “stigmatizes” the people listed on it insofar as it asserts that they are persons convicted of crimes characterized by the State as sexual offenses. But those assertions are concededly true. The gravamen of “stigma” as part of a due process violation is the making under color of law of a reputation-tarnishing statement
To meet the stigma element of his claim, then, the plaintiff is required to show a stigmatizing statement about him made or to be made under color of law that is capable of being proved true or false. He has only to allege, not prove, that the statement is false in order to establish a due process right to the hearing he seeks. See Brandt v. Bd. of Coop. Educ. Servs.,
The district court concluded that the plaintiff met the stigma element of his claim. The court’s opinion is not entirely clear, however, as to how public dissemination of the registry falsely stigmatizes the plaintiff. We read the court’s decision as containing two possible explanations: that the registry implies that every person listed therein is in fact dangerous; and that it implies that some of the registrants are dangerous and that each individual registrant is more likely than the average person to be currently dangerous.
As to the first of these possibilities, the court, echoing the plaintiffs argument, stated:
The stigma question ... [is] whether, assuming plaintiff is not dangerous, public dissemination of the sex offender registry conveys the erroneous message that he is. The answer to this question must be yes. Despite the accuracy of the registry data concerning the plaintiff and the statement on the web site that no determination of any individual’s dangerousness has been made, the registry suggests that plaintiff is currently dangerous.
Doe v. Lee,
We share some of the State’s doubt as to whether, as a matter of law, public dissemination of the registry implies to any particular reader, its average reader, or to “an appreciable fraction” of its readership, Peck v. Tribune Co.,
But the district court also said:
The stated purposes of the [law] are to protect the public and facilitate law enforcement. Registration and dissemination serve these goals only because some registrants are likely to reoffend. Thus, the message that some registrants are currently dangerous is, and is intended to be, communicated to viewers of the registry.
Doe v. Lee,
We think that it follows that publication of the registry implies that each person listed is more likely than the average person to be currently dangerous. That implication seems to us necessarily to flow from the State’s choice of these particular individuals about whom to disseminate information, a record as to their sex of-fences, and information as to their current whereabouts. This implication stigmatizes every person listed on the registry. And the plaintiff claims that, as to him, it is false.
If the “plus” factors are present — a question to which we will turn shortly— then the plaintiff is entitled to due process in the form of a hearing at which he would have the opportunity to establish that he is not particularly likely to be dangerous and therefore should not be listed in a publicly disseminated registry in a way that falsely implies otherwise.
The State of Connecticut contends that by enjoining the publication of the information on the registry, the district court was doing no more than enjoining the dissemination of truthful information about the criminal history of the registrants. That would be troubling if it were
The listings alone, true or false — the “stigmatizing” by the State — are not, under Paul, actionable as due process violations. But if “plus” factors are present, the plaintiff is entitled to due process to establish whether the implication of likely dangerousness, as applied to him, is false and to prevent its communication to the public until he has had that opportunity and has failed.
B. The “Plus” Factors
Having isolated the “stigma” that the Connecticut sexual offender registry law visits on registrants, then, we must inquire whether there is a “plus” factor that gives rise to a liberty interest under the Due Process Clause.
1. Immunity and employment termination precedents. Although we have applied the “stigma plus” test many times, see, e.g., Greenwood,
In addition, our cases have typically addressed “stigma plus” claims in the context of termination of government employment. See, e.g., Greenwood,
2. ‘Stigma plus’’ from Constantineau to Paul. Prior to Paul, the concept of “liberty” in the Due Process Clause of the Fourteenth Amendment appears to have been widely understood to encompass a person’s interest in his or her good name and reputation, without more. See Laurence H. Tribe, American Constitutional Law § 10-9 (2d ed.1988). That principle seemed to be established by the Supreme Court’s decision in Wisconsin v. Constantineau,
may to some be merely the mark - of illness, to others it is a stigma, an official branding of a person. -The label is a degrading one. Under the [statute], a*52 resident ... is given no process at all. This appellee was not afforded a chance to defend herself. She may have been the victim of an official’s caprice. Only when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented.
Id. Chief Justice Burger and Justice Blackmun dissented on procedural grounds but agreed with the majority that “the Wisconsin statute appears, on its face and in its application, to be in conflict with accepted concepts of due process,” and that the Court’s decision on the merits therefore “[v]ery likely ... reach[es] a correct result.” Id. at 440,
The Supreme Court seemed to reaffirm these “accepted concepts” in two cases decided over the ensuing several years. In Roth, the Court declined to find a protected liberty interest in the termination of a non-tenured teacher’s employment at a public university but suggested that such an interest would be implicated if the state imposed “on [the plaintiff] a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.” Roth, 408 U.S. at 573,
Three years later, in Goss v. Lopez,
In its 1976 decision in Paul, the Court revisited the issue of government-imposed stigma and reoriented this precedent. The Court addressed a municipal police department’s practice of circulating to local merchants flyers displaying photographs of persons deemed to be “active shoplifters.” Paul,
Writing for the majority, then-Justice Rehnquist rejected this claim, declaring that contrary to the plaintiffs view of Con-stantineau, an individual’s “interest in reputation ... is neither ‘liberty’ nor ‘property’ guaranteed against state deprivation without due process of law.” Paul, 424
Undergirding this analysis was the concern that a construction of the Due Process Clause under which damage to reputation alone could implicate a liberty interest “would seem almost necessarily to result in every legally cognizable injury which may have been inflicted by a state official acting under ‘color of law’ establishing a violation of the Fourteenth Amendment.” Id. at 699.,
Paul’s interpretation of decisions like Constantineau, Roth, and Goss was thus driven at least in part by “evident concern for values of federalism,” Laurence H. Tribe, Unraveling National League of Cities: The New Federalism and Affirmative Rights to Essential Government Services, 90 Harv. L.Rev. 1065, 1101 n. 135 (1977), and more specifically by a resolve to prevent § 1983 from “supplanting] traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society,” Daniels v. Williams,
The requirement that a plaintiff demonstrate some “plus” factor — an alteration or impairment of “a right or status previously recognized by state law,” Paul,
The “plus” requirement avoids this result by ensuring that a plaintiff cannot allege as a deprivation of a constitutionally protected liberty interest an injury that could have been inflicted by a private citizen in a position analogous to the state actor. If the plaintiff can point to some material indicium of government involvement beyond the mere presence of a state defendant to distinguish his or her grievance from the garden-variety defamation claim, courts can be assured that § 1983 will not become “a body of general federal tort law” duplicative of “whatever systems may already be administered by the States.” Paul,
Two sources lend further support to this understanding of the “plus” requirement. The first is Siegert v. Gilley,
The statements contained in the letter would undoubtedly damage the reputation of one in [the plaintiffs] - position, and impair his future employment prospects. But the plaintiff in Paul v. Davis similarly alleged serious impairment of his future employment opportunities as well as other harm. Most defamation plaintiffs attempt to show some sort of special damage and out-of-pocket Joss which flows from the injury to their reputation. But so long as such damage flows from injury caused by the defendant to a plaintiffs reputation, it may be recoverable under state tort law but it is not recoverable in a [constitutional] action.
Id. at 234,
The Court did not suggest that the requisite tangible interest or burden needs to meet some threshold of substantiality or that it must implicate a certain kind of
The second source of support for our reading of the “plus” component is the Supreme Court’s decision in Parratt v. Taylor,
The rationale underlying Parratt parallels that of Paul: “To accept [plaintiffs] argument that the conduct of the state officials in this case constituted a violation of the Fourteenth Amendment would almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under ‘color of law into a violation of the Fourteenth Amendment cognizable under § 1983.” Id. at 544,
The Supreme Court has since suggested a relationship between the Paul and Parratt analyses, see Daniels,
In McClary v. O’Hare,
Our analysis in McClai“y parallels a federalism-based interpretation of the Paul “plus” factors. We were presented- in McClary with both substantive and procedural due process claims against state and county officials brought by the administra-trix of the estate of a highway worker who was killed by a falling crane while working on a government project.
We began our discussion by observing that the Due Process Clause was designed to guard against abuses of “governmental power.” Id. (citation and internal quotation marks omitted). We then noted that, as was the case in Daniels, no such abuse of state authority had been alleged; “the only fact distinguishing [the plaintiffs complaint] from an ordinary tort action ... is the identity of [the defendant].” Id. at 89. We reasoned that where “identical actions could have been carried out by a private [defendant], for the same reasons and with the same regrettable consequences,” substantive due process was not implicated. Id. Only where the defendant’s action is “governmental in nature” — where “a government official, because of his unique position as such, was able to impose a loss” — would the protections of the Fourteenth Amendment come into play. Id. (internal quotation marks omitted). Because the plaintiff could not point to any state activity in the case beyond the mere presence of a state defendant, we dismissed her claim on the ground that “the substantive component of the Due Process Clause does not provide a remedy to a public employee that would not be available to a private employee subject to identical conduct by his employer.” Id.
McClai'y thus held that a plaintiff pleads a deprivation of an interest protected by substantive due process only when he or she demonstrates some state action that distinguishes the allegation from an ordinary tort claim. On similar reasoning, we hold that a plaintiff establishes a “plus” factor for purposes of the Paul v. Davis “stigma plus” test only if he or she points to an indicium of material government involvement unique to the government’s public role that distinguishes his or her claim from a traditional state-law defamation suit.
8. The “plus” factor in this case. Applying this holding to the case before us, we agree with the district court that the statutory registration duties imposed on the plaintiff constitute a “plus” factor. Those obligations (1) alter the plaintiffs legal status, and (2) are “governmental in nature,” cf. McClary,
Whenever any registrant changes his or her address, he or she must notify the Commissioner of Public Safety within five days. Id. §§ 54-251(a), 54-252(a), 54-254(a). If he or she “regularly travels into or within another state or temporarily resides in another state for purposes including, but not limited to employment or schooling,” he or she must notify the Connecticut Commissioner and register with the appropriate agency in the other state. Id. The registrant must also provide blood samples for purposes of DNA analysis when he or she is first registered and must appear at a specified location to have his or her photograph taken whenever the Commissioner requests, id. §§ 54-250(3), 54-251(a), 54-252(a), 54-253(b),(c), 54-254(a), but at least once every five years, id. § 54-257(d). Failure to abide by any of these obligations constitutes a class D felony, punishable by up to five years in prison. Id. §§ 54 — 251(d), 54-252(b), 54-253(c), 54-254(b).
We think that these obligations, taken together, easily qualify as a “plus” factor under Paul. The imposition on a person of a new set of legal duties that, if disregarded, subject him or her to felony prosecution, constitutes a “change of [that person’s] status” under state law. Paul,
The defendants assert that “every federal court that has addressed the issue has held that no liberty interest is implicated in such a context.” Appellants’ Br. at 23. They are incorrect. Prior to the district court’s decision in this case, three other district courts — including one in the Southern District of New York — have used-similar reasoning to identify a protected liberty interest under the “stigma plus” test. See Doe v. Pryor,
Since oral argument of this appeal, moreover, the United States District Court for the District of Columbia has held that a sex offender registry statute similar to Connecticut’s infringes upon a protected liberty interest because its registration requirements and long period of supervised release impose an “extraordinary breadth and extent of ... burdens” which, when combined with reputational harm, satisfy the “stigma-plus” test. Doe v. Williams,
In addition, the Third Circuit has identified a protected liberty interest in these circumstances, albeit by relying upon a state-created right to privacy rather than the statutory obligations imposed on registrants. See E.B. v. Verniero,
It is true that the Sixth and Ninth Circuits have not found a liberty interest in analogous circumstances. See Cutshall,
The defendants challenge the conclusion that the Connecticut sexual offender law satisfies the “plus” requirement on two grounds.. First, they allege that the registration requirements constitute only a “minimal burden” on registrants, an intrusion no more onerous than that which the federal and state tax laws impose on all citizens and no more inconvenient than the type of obligations one encounters when completing census questionnaires or renewing a driver’s license. The notion that meeting the burdens of the Connecticut registry law, which we have described in some detail, is comparable to paying taxes
Second, the defendants argue that the registration requirement’s relation to the stigma is too attenuated to constitute a “plus” factor. The defendants point out that the stigma arises not from the registration requirement but rather from the publication of the registration information. They contend that the harm of stigma and the additional tangible burden of the “plus” factor must arise from the same government act. In a similar vein, the defendants point out that a hearing permitting the plaintiff to establish that he is not dangerous would remedy only the stigma while leaving the registration requirement intact. According to the defendants, this demonstrates that the “plus” factor in this case is insufficient.
We are unpersuaded by this argument. Our eases have not required the plaintiff to seek a remedy for both the stigma and the “plus” factor. See, e.g., Donato,
We think that the temporal nexus between the stigma and the “plus” factor in this case is sufficiently close to support a liberty interest. The information published by the State is obtained by means of the registration requirement, and a person can be stigmatized by publication of the registry only if he or she is first subjected to that requirement. The “plus” factor is thus a necessary condition for the stigmatization. Cf. Valmonte,
Our reason for rejecting the defendants’ argument becomes even clearer in light of the “plus” factor’s function of reserving the “heavy artillery” of the Due Process Clause for those cases involving uniquely governmental conduct. The requirement that sexual and other offenders register with the State^ — a requirement that can only be imposed by the State and that is a necessary predicate for the stigmatizing
III. Ex Post Facto Claim
The plaintiff cross-appeals the district court’s grant of summary judgment to the defendants on his claim that the registration requirement constitutes a punishment in violation of the Ex Post Facto Clause of Article I, section 10 of the Constitution.
With respect to the first part of the test, the district court canvassed the “limited legislative history materials” supplied to it by the parties and held that it does not indicate a punitive legislative purpose. Id. at 67. The court noted that “there is nothing in the text [of the law] that suggests the legislature sought to punish sex offenders rather than protect public safety.” Id. It also observed differences between the New York sex offender registration law at issue in Pataki and the Connecticut law, including the fact that the former, unlike the latter, provided for individualized assessment of the dangerousness of the registrant. See id. at 67-68. The court concluded that the “differences, taken separately or cumulatively and viewed in light of the [Connecticut] legislative history and the structural features indicating a regulatory purpose, do not demonstrate that the legislature acted with punitive intent” in adopting the law. Id. at 68. We find no basis upon which to disagree.
With respect to the second part of the Pataki test — whether, although regulatory in intent, the registry law is punitive in fact — the district court, citing Pataki, held that a fact-specific inquiry is required, but that only “the clearest proof’ would suffice to meet the test. Doe v. Lee,
As to the first, the fact that registration is triggered by conviction, the district court held that that could not be enough to render the statute punitive in fact because that characteristic is “common to all regulatory disabilities that follow from a prior conviction, such as the loss of the right to vote.” Id. at 69. “[T]he [Supreme] Court has found such a link insufficient to establish unconstitutionality.” Id. (citing United States v. One Assortment of 89 Firearms,
The district court also disagreed with the plaintiffs position that the asserted “excessiveness” of the registry scheme, principally the use of a website for dissemination, made it punitive in fact.
There can be no doubt that Internet availability of registry information is rationally related to the goals of public safety and law enforcement. Indeed, use of the Internet is the most efficient means of making the information available to residents of the state, and it will become more efficient as Internet accessibility increases over time. Because use of the Internet furthers these non-punitive purposes, this feature of the [statute] is insufficient to render the statute punitive in fact.
Id. (citation omitted.)
Unlike the question of legislative intent, the punitive-in-faet aspect of the Connecticut sex offender registry statute as written is problematic. We acknowledged in Pa-taki that there “the question [was] not free from doubt,”
But we need not and do not decide whether, because of the undifferentiated nature of the Connecticut law, the Connecticut statute as written is punitive-in-fact under ex post facto analysis. We have today affirmed the court’s injunction under the Due Process Clause prohibiting the State from disseminating sex offender registry information without giving a person on the registry an opportunity to avoid being listed in a manner suggesting that he or she is probably currently dangerous by establishing that he or she is not. The State of Connecticut therefore stands enjoined from enforcing the registry law in the manner that might also render it punitive-in-fact and therefore unconstitutional under the Ex Post Facto Clause.
In order to provide for a sex offender registry and its dissemination consonant with the injunction that we affirm today, Connecticut will likely adopt new procedures more sensitive to whether those on a widely disseminated registry are likely to be currently dangerous. The State may choose a scheme clearly permissible under the Ex Post Facto Clause under Pataki. Indeed, it could adopt a law constitutionally indistinguishable from that which we
IV. The Injunction
The district court granted the permanent injunction requested by the plaintiff. The injunction principally prohibits the defendants from “disclosing or disseminating to the public, either in printed or electronic form (a) the Registry or (b) Registry information concerning a member of the due process class [including the plaintiff] if the information identifies the class member as being included in the Registry,” and from “identifying any member of the due process class as being included in the Registry.” Doe v. Lee,. In arriving at the terms of the injunction, the district court was required to “tailor the remedy to fit the nature and extent of the violation.” United States v. Yonkers Bd. of Educ.,
Finally, we note the narrowness of the basis on which we affirm the judgment of the district court and the injunction it contains. We hold only that the plaintiff and the members of the due process class are entitled to the opportunity to have a hearing consistent with due process principles to determine whether or not they are particularly likely to be currently dangerous before being labeled as such by their inclusion in a publicly disseminated registry. We make no judgment as to what form that process should take. And we make none as to what the State may do once such a process is complete if, pursuant thereto, a particular offender is determined not to be currently dangerous or as to whether or to what extent the State may publicly disseminate information about such an offender.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
Notes
. Because the terms are always used together and carry the same consequences for registrants under the Connecticut sexual offender registry law, see, e.g., Conn. Gen.Stat. §§ 54-251(a), 54-252(a), 54-253(a), 54-254(a), 54-255(a), 54-256, throughout this opinion we use the term ‘‘conviction" to include a finding that a person is “not guilty by reason of mental disease or defect.”
. Although the caption lists two pseudonymous plaintiffs bringing suit on their own behalf and the "behalf of others similarly situated,” for the sake of relative simplicity, we treat John Doe as the sole plaintiff and appel-lee; he appears to be the sole cross-appellant.
. See Roe v. Farwell,
. The original Megan's Law was enacted in New Jersey "to identify potential recidivists and alert the public when necessary for the public safety,” Paul P. v. Farmer,
. Federal law renders states that fail to enact such laws ineligible for ten percent of a formula grant that they would otherwise receive under the Edward Byrne Memorial State and Local Law Enforcement Assistance Program, codified at 42 U.S.C. § 3756. See 42 U.S.C. § 14071(g)(2)(A); Final Guidelines for the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 64 Fed.Reg. 572, 581-82 (Jan. 5, 1999). (Jacob Wetterling was an eleven-year-old St. Joseph, Minnesota, boy who was abducted by a masked man near his home in 1989 and has never been found. See United States v. Green,
. "Criminal offense[s] against a victim who is a minor” are defined in Conn. Gen.Stat. § 54-250(2) to include kidnapping, unlawful restraint, and a wide variety of sexual acts against persons under the age of eighteen made criminal by various other specified Connecticut statutes.
. "Nonviolent sexual offense[s]” are defined in Conn. Gen.Stat. § 54-250(5) as violations of Conn. Gen.Stat. § 53a-73a, which renders a wide variety of sexual acts Class A misdemeanors.
. "Sexually violent offenses” are defined in Conn. Gen.Stat. § 54-250(11) to include certain levels of sexual assault, and also kidnappings that the court finds were "committed with intent to sexually violate or abuse the victim.” Id.
. The sentencing court determines whether a felony was committed for a sexual purpose. Upon such a finding, the sentencing court may require the offender to register as a sexual offender. See Conn. Gen.Stat. § 54-254(a).
. The law also covers any Connecticut resident who has been convicted in another juris
. Groups of offenders within two additional categories must also register for life: (i) anyone who has committed a criminal offense against a minor or a nonviolent sexual offense and has a prior conviction of the same type, and (ii) anyone convicted of the crime of sexual assault in the second degree for engaging in sexual intercourse with a victim who is under thirteen years old and more than two years younger than the perpetrator. See Conn. Gen.Stat. § 54-251(a).
. The law also imposes a reciprocal obligation on anyone who is registered and lives in another state but regularly travels into or temporarily resides in Connecticut. See Conn. Gen.Stat. § 54-253(b).
. The statute does not itself give a name to the registry. The State refers to it, and referred to it on the Internet site, as the "Sex Offender Registry,” although it includes persons convicted of several crimes "against a victim who is a minor” that are not necessarily sexual in nature. See Conn. Gen.Stat. § 54-251(a).
. The website, which was first made available on January 1, 1999, was shut down on May 18, 2001 pursuant to the permanent injunction issued by the district court. During its first five months of operation, the website was visited more than three million times.
We are somewhat handicapped by our inability to view the website in its actual form or context because the site is no longer publicly available and neither party has supplied us with an alternative method for obtaining access to it.
. On the same day, the court granted the plaintiff's motion to amend his complaint to add an allegation that he is not dangerous, which the court deemed necessary to resolve the due process issue.
. Defamation and stigma are virtually synonymous. The “stigma plus” test is sometimes referred to in the case law as a "defamation plus” test. See, e.g., Cannon,
. The injunction by a court of statements like those contained in the sexual offender registry made by a private individual, a classic prior restraint, would be highly suspect particularly insofar as the statements at issue were true. ”[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Assn v. Stuart,
. We note that these cases were decided before the Supreme Court first "expressed its preference that courts address first the merits of the constitutional claims presented before turning to an analysis of qualified immunity.” Medeiros v. O'Connell,
. The Connecticut law considered on this appeal provides broad immunity from civil suit for persons and entities involved in the maintenance and dissemination of the registry. See Conn. Gen.Stat. § 54 — 258(b). The provision of a remedy through § 1983 therefore would not overlap with any remedy provided by the State but rather interfere with the power of the State to establish that there shall be no remedy in specified circumstances.
. Art. I, § 10 of the Constitution provides, in relevant part: "No State shall ... pass any ... ex post facto law....”
. The Mendoza-Martinez considerations are whether the sanction (1) involves an affirmative disability or restraint, (2) has historically been regarded as a punishment, (3) comes into play only on a finding of scienter, (4) will promote the traditional aims of punishment— retribution and deterrence, (5) applies to behavior that is already a crime, (6) may rationally be connected to an alternative, nonpuni-tive purpose, and (7) appears excessive in relation to that alternative purpose.
Doe v. Lee,