John DOE; Jack Roe; California Reform Sex Offender Laws, on behalf of themselves and others similarly situated, Plaintiffs-Appellees, v. Kamala D. HARRIS, Attorney General of the State of California, Defendant-Appellant, and Daphne Phung; Chris Kelly, Intervenors-Appellants.
Nos. 13-15263, 13-15267
United States Court of Appeals, Ninth Circuit
Filed Nov. 18, 2014.
772 F.3d 563
Argued and Submitted Sept. 10, 2013.
v.
Kamala D. HARRIS, Attorney General of the State of California, Defendant-Appellant,
and
Daphne Phung; Chris Kelly, Intervenors-Appellants.
John Doe; Jack Roe; California Reform Sex Offender Laws, on behalf of themselves and others similarly situated, Plaintiffs-Appellees,
v.
Kamala D. Harris, Attorney General of the State of California, Defendant-Appellant,
and
Daphne Phung; Chris Kelly, Intervenors-Appellants.
Nos. 13-15263, 13-15267.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 10, 2013.
Filed Nov. 18, 2014.
James C. Harrison (argued), Margaret R. Prinzing, Remcho, Johansen & Purcell, LLP, San Leandro, CA, for Intervenors-Appellants.
Michael T. Risher (argued), Linda Lye, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, CA; Hanni Fakhoury, Lee Tien, Electronic Frontier Foundation, San Francisco, CA, for Plaintiffs-Appellees.
Before: MARY M. SCHROEDER and JAY S. BYBEE, Circuit Judges, and ROBERT J. TIMLIN, Senior District Judge.*
* The Honorable Robert J. Timlin, Senior District Judge for the U.S. District Court for the Central District of California, sitting by designation.
OPINION
BYBEE, Circuit Judge:
California law has long required registered sex offenders to report identifying information, such as their address and current photograph, to law enforcement.
I. BACKGROUND
A. The CASE Act
California has had some form of sex offender registration requirement since 1947. In re Alva, 33 Cal.4th 254, 14 Cal.Rptr.3d 811, 92 P.3d 311, 314 (2004). Under current California law, [e]very person ... residing in California, or while attending school or working in California who has been convicted of certain sexual crimes must register with the police or sheriff where he or she resides on an annual basis.
In 2012, California voters passed Proposition 35, known as the CASE Act, which added provisions to California‘s sex offender registration requirements related to Internet usage by persons subject to the Act. The new sections require covered persons to provide additional information, including [a] list of any and all Internet identifiers established or used by the person and [a] list of any and all Internet service providers used by the person.
If any person who is required to register pursuant to the Act adds or changes his or her account with an Internet service provider or adds or changes an Internet identifier, the person shall send written notice of the addition or change to the law enforcement agency or agencies with which he or she is currently registered within 24 hours. The law enforcement agency or agencies shall make this information available to the Department of Justice.
B. The Proceedings
Appellees represent a class of registered sex offenders who regularly use the Internet to advocate anonymously on behalf of sex offenders and to comment on news articles, forums, and blogs. They filed suit on the day the CASE Act took effect, asserting that the CASE Act violates their
After briefing and a hearing, the district court granted Appellees’ motion for a preliminary injunction in a thorough order. The district court concluded that the Act is content neutral, and so determined to review the Act under an intermediate level of scrutiny. Before beginning its intermediate scrutiny analysis, however, the district court first considered whether it could permissibly adopt a narrowing construction to clarify ambiguities in the CASE Act. The district court adopted two narrowing constructions, both of which were agreed upon by the parties. First, the district court construed the requirement that registrants provide [a] list of any and all Internet service providers used by the person,
Even with these narrowing constructions, however, the district court determined that the CASE Act is not narrowly tailored to serve the government‘s important interest in combating human trafficking and sexual exploitation because the challenged provisions, when combined with the lack of protections on the information‘s disclosure and the serious penalty registrants face if they fail to comply with the reporting requirements, create too great a chilling effect to pass constitutional muster. The district court further concluded that loss of
The State and Intervenors appealed.
The standard for issuing a preliminary injunction is well established:
A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
The application of this standard in
We review a district court‘s decision to grant or deny a preliminary injunction for abuse of discretion. Id. at 1115. We review the district court‘s legal conclusions de novo, and the district court‘s findings of fact for clear error. Id. When reviewing under this standard, we will not reverse the district court‘s decision simply because [we] would have arrived at a different result if [we] had applied the law to the facts of the case. Id. (internal quotation marks omitted).
III. DISCUSSION
A. Likelihood of Success on the Merits
Appellees’
1. Scope of First Amendment Protection Afforded to Registered Sex Offenders
As the district court noted, both sides in this litigation agree that speech by sex offenders who have completed their terms of probation or parole enjoys the full protection of the
On the one end of the continuum is incarceration, which brings about the necessary withdrawal or limitation of many
Parole (or supervised release, in the federal system)3 is one step removed from imprisonment. The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence. Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Although parolees should enjoy greater freedom in many respects than a prisoner, the Government may impose restrictions on the rights of the parolee that are reasonably and necessarily related to the [Government‘s] interests. Birzon v. King, 469 F.2d 1241, 1243 (2d Cir.1972). For example, we have upheld Internet monitoring as a condition of release for parolees who were convicted of downloading child pornography. See, e.g., United States v. Quinzon, 643 F.3d 1266, 1272-73 (9th Cir.2011); United States v. Goddard, 537 F.3d 1087, 1090 (9th Cir.2008). But, because parolees retain some of their
Probation is less restrictive than parole, though it is still on the continuum of state-imposed punishments. See Samson, 547 U.S. at 850 ([P]arole is more akin to imprisonment than probation is to imprisonment.); id. ([O]n the Court‘s continuum of possible punishments, parole is the stronger medicine; ergo, parolees enjoy even less of the average citizen‘s absolute liberty than do probationers. (alteration in original) (quoting United States v. Cardona, 903 F.2d 60, 63 (1st Cir.1990))). Unlike parole, which is imposed in addition to imprisonment, probation is meted out in lieu of[] incarceration. Cardona, 903 F.2d at 63. Although probation is a less restrictive criminal sanction, the government may still impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens. United States v. Knights, 534 U.S. 112, 119, 122, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001).
Of course, if Doe, Roe, or other sex offenders fail to follow California‘s registration requirements, they are subject to criminal sanctions, which in California can be harsh. See Gonzalez v. Duncan, 551 F.3d 875, 889 (9th Cir.2008) (holding that a sentence of 28 years to life under California‘s three strikes law for filing a sex offender registration update three months late violated the
2. First Amendment Scrutiny
In evaluating the CASE Act, we must determine in the first instance whether the Act implicates the
There can be little doubt that requiring a narrow class of individuals to notify the government within 24 hours of engaging in online communication with a new identifier significantly burdens those individuals’ ability and willingness to speak on the Internet. See
But the CASE Act burdens sex offenders precisely when they are engaged in one activity—communicating through the Internet. In that respect, this case is similar to Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983).
Just as the tax on paper and ink in Minneapolis Star inevitably burdened specific publishers’ ability to engage in free speech, so too does the CASE Act‘s 24-hour reporting requirement inevitably burden sex offenders’ ability to engage in protected speech on the Internet. Indeed, the purpose of the Act is to collect Internet identifiers that sex offenders use for the purpose of Internet forum discussions, Internet chat room discussions, instant messaging, social networking, or similar Internet communication.
For the very reasons this case is like Minneapolis Star and Lamont, it is nothing like Arcara, a case urged on us by Appellants. In Arcara, the Supreme Court held that the
We have explained, moreover, that [a]lthough the Internet is the latest platform for anonymous speech, online speech stands on the same footing as other speech—there is no basis for qualifying the level of
Accordingly, because the Act imposes a substantial burden on sex offenders’ ability to engage in legitimate online speech, and to do so anonymously, we conclude that
3. Level of Scrutiny
Having determined that some level of
We conclude that the CASE Act is content neutral. On its face, the Act makes no reference to specific subject matters or viewpoints. And unlike the registration laws in other states, California‘s CASE Act does not prohibit registered sex offenders from using particular websites, or any particular types of communication. Compare
The more difficult question is whether the CASE Act is subject to strict scrutiny because it makes speaker-based distinctions. In Ward, the Supreme Court declared that [a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. 491 U.S. at 791. More recently, however, the Court held in Citizens United v. Federal Election Commission that the
Here, although it is true that the Act singles out registered sex offenders as a category of speakers, it does not target political speech content, nor is it a ban on speech. See id. at 339 (observing that the restrictions constituted a ban on speech and that [t]he
The Supreme Court‘s decision in Turner Broadcasting is instructive. At issue in that case were rules requiring cable television systems to devote a portion of their channels to the transmission of local broadcast television stations. 512 U.S. at 626. The Court acknowledged that these must-carry provisions distinguish[ed] between speakers in the television programming market—over-the-air broadcasters were favored, while cable programmers and cable operators were burdened by the carriage obligations.
Here as well, the CASE Act does not target speakers or the forum in a way that suggests that the restrictions are a proxy for content regulation. The Act‘s purpose is clear: It is to combat the crime of human trafficking and to strengthen laws regarding sexual exploitation, including sex offender registration requirements, to allow law enforcement to track and prevent online sex offenses and human trafficking. Proposition 35, Californians Against Sexual Exploitation Act, § 3(1), (3). Although we conclude that the Act burdens protected speech, nothing in the Act suggests that the Act‘s purpose was to disfavor any particular viewpoint or subject matter. We therefore conclude that the appropriate standard by which to evaluate the constitutionality of [the Act] is the intermediate level of scrutiny applicable to content-neutral restrictions that impose an incidental burden on speech. Turner, 512 U.S. at 662.
Our conclusion finds support in the decisions of other courts that have considered registration requirements similar to those found in the CASE Act. The Tenth Circuit, for example, has held that Utah‘s reporting law, which requires sex offenders to provide all Internet identifiers and their corresponding websites, was a content-neutral regulation ... subject to intermediate scrutiny. Doe v. Shurtleff, 628 F.3d 1217, 1223 (10th Cir.2010). Similarly, the Seventh Circuit has held that an Indiana statute, which prohibited certain sex offenders from using social networking sites, instant messaging, or chat rooms that are accessible to minors, was content neutral because it restrict[ed] speech without reference to the expression‘s content and was therefore subject to intermediate scrutiny. Doe v. Prosecutor, Marion Cnty., Ind., 705 F.3d 694, 698 (7th Cir.2013). Other courts have concluded likewise. See, e.g., Doe v. Nebraska, 898 F.Supp.2d 1086, 1093, 1107-08 (D.Neb.2012) (Nebraska statute that required sex offenders to disclose remote communication device identifiers, addresses, domain names, and Internet and blog sites used was subject to intermediate scrutiny); White v. Baker, 696 F.Supp.2d 1289, 1307-08 (N.D.Ga.2010) (Georgia statute requiring sex offenders to produce their email addresses, usernames, and password was subject to intermediate scrutiny); State v. Packingham, 748 S.E.2d 146, 149-50 (N.C.App.2013) (North Carolina statute banning use of social networking sites by sex offenders was subject to intermediate scrutiny). We join these courts that have reviewed similar laws, and apply intermediate scrutiny to the CASE Act.
4. Intermediate Scrutiny Analysis
Content-neutral restrictions on protected speech survive intermediate scrutiny so long as they are narrowly tailored to serve a significant governmen
The CASE Act is clearly intended to serve a legitimate interest. The Act‘s stated purpose is to combat the crime of human trafficking and to strengthen laws regarding sexual exploitation, including sex offender registration requirements, to allow law enforcement to track and prevent online sex offenses and human trafficking. Proposition 35, § 3(1), (3). The Act declares that protecting people in California from all forms of sexual exploitation is of paramount importance.
Unquestionably, the State‘s interest in preventing and responding to crime, particularly crimes as serious as sexual exploitation and human trafficking, is legitimate. We have observed that there is a strong link between child pornography and the Internet, and the need to protect the public, particularly children, from sex offenders. United States v. Rearden, 349 F.3d 608, 621 (9th Cir.2003) (internal quotation marks omitted); see also City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 435, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (plurality opinion) ([W]e find that reducing crime is a substantial government interest....); Doe v. Prosecutor, 705 F.3d at 698 (Indiana is certainly justified in shielding its children from improper sexual communication.); Shurtleff, 628 F.3d at 1223 (We have no doubt that the State of Utah has a compelling interest in investigating kidnapping and sex-related crimes.); White, 696 F.Supp.2d at 1308 ([Georgia] has an interest in protecting against internet abuse of children.). California has a substantial interest in protecting vulnerable individuals, particularly children, from sex offenders, and the use of the Internet to facilitate that exploitation is well known to this Court. See, e.g., United States v. Curtin, 588 F.3d 993 (9th Cir.2009); United States v. Daniels, 541 F.3d 915 (9th Cir.2008); United States v. Stoterau, 524 F.3d 988 (9th Cir.2008).
Although California clearly has a legitimate interest, the more difficult question is whether the means California has chosen burden[s] substantially more speech than is necessary to further the government‘s legitimate interests. Turner, 512 U.S. at 662 (quoting Ward, 491 U.S. at 799). The Constitution gives significant protection from overbroad laws that chill speech
We conclude that the CASE Act unnecessarily chills protected speech in at least three ways: the Act does not make clear what sex offenders are required to report, there are insufficient safeguards preventing the public release of the information sex offenders do report, and the 24-hour reporting requirement is onerous and overbroad. We address each of these concerns in turn.
a. Ambiguities in the Act
First, the Act is unclear as to what it requires registered sex offenders to provide. The district court—at the urging of the State—adopted narrowing constructions to clarify the meanings of Internet identifier and Internet service provider. The district court construed the Act‘s requirement that Internet identifiers be reported to require only reporting of identifiers used to engage in interactive communication, not those used for shopping or reading content. It also construed the Act to require a registered sex offender to report a new Internet identifier only once he or she actually uses the identifier for a communicative purpose. As to ISPs, the district court construed the Act to require disclosure only of ISPs with which registered sex offenders have an open account, and not friends’ or family members’ accounts or publicly available WiFi that does not require an account.
Despite the district court‘s valiant effort at applying narrowing constructions, we are reluctant to adopt a narrowing construction where, as here, the terms of the statute itself—including its definition section—are ambiguous and arguably inconsistent. See White, 696 F.Supp.2d at 1312 (holding that a statute using the term interactive online communication chilled a sex offender‘s right to anonymous free speech because the term is too ambiguous). Although we will adopt a narrowing construction where a contrary construction might raise serious constitutional doubts, we can impose a limiting construction on a statute only if it is readily susceptible to such a construction. Reno, 521 U.S. at 884 (quoting Virginia v. Am. Booksellers Ass‘n, Inc., 484 U.S. 383, 397, 108 S.Ct. 636, 98 L.Ed.2d 78 (1988)).
First, the Act is not readily susceptible to the district court‘s limitation of the Act to require registered sex offenders to report only new Internet identifiers that a sex offender actually uses for a communicative purpose. Although it is true that the Act in one place refers only to identifier[s] used for the purpose of ... Internet communication,
And even if the Act were readily susceptible to the constructions adopted by the district court, our adoption of those constructions would not necessarily alleviate the chilling effect caused by the ambiguities in the Act. As the district court noted, [t]he uncertainty surrounding what registrants must report—and the resultant potential chilling effect—is greater in this case because the [district court‘s] interpretation of the Act is not definitive guidance to registrants about what they must report because it is not binding on state courts, where the registrants would face prosecution for failure to register.
Thus, whether narrowly construed or not, the ambiguities in the statute may lead registered sex offenders either to overreport their activity or underuse the Internet to avoid the difficult questions in understanding what, precisely, they must report. This uncertainty undermines the likelihood that the [Act] has been carefully tailored to the [State‘s] goal of protecting minors and other victims. Reno, 521 U.S. at 871. And this uncertainty is particularly troubling because unclear laws inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked. Grayned v. City of Rockford, 408 U.S. 104, 109, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (alteration in original) (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964)).
The State suggests that even if the CASE Act is unclear, registrants have the opportunity to ask questions when annually registering in person, and if a registrant makes an honest mistake, he or she will not be prosecuted because the law only penalizes knowing failure to register. But notwithstanding the State‘s assurances that it will not prosecute honest mistakes, we cannot assume that, in its subsequent enforcement, ambiguities will be resolved in favor of adequate protection of
We therefore conclude that the Act‘s ambiguities as to what registrants are required to report, combined with the criminal sanctions for failure to report, unnecessarily chill protected speech.
b. Standards for release of identifying information
Second, the Act burdens registered sex offenders’ ability to engage in anonymous online speech. Our nation has a respected tradition of anonymity in the advocacy of political causes. McIntyre, 514 U.S. at 343. This tradition is worth protecting because [a]nonymity provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent. Id. at 342. Accordingly, an author‘s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the
Although this is not what some might call the classic anonymous-speech case, where speakers allege they are required to disclose their identities directly to their audience, we conclude that the Act never-
[n]otwithstanding any other provision of law, ... any designated law enforcement entity may provide information to the public about a person required to register as a sex offender pursuant to Section 290, by whatever means the entity deems appropriate, when necessary to ensure the public safety based upon information available to the entity concerning that specific person.
The problem is that
We cannot find any constraining principle in
The State argues that the Act, construed with existing constraints on law enforcement activities, cabins the discretion of law enforcement officials to use Internet identifying information because to conduct investigation or surveillance, specific and articulable facts causing the officer to suspect that some activity relating to crime has taken place or is occurring or about to occur are required and the suspicion that the person he or she intends to place under surveillance is involved in that activity is also required. But these general principles of good police practices for investigation or surveillance tell us nothing about the kind of judgment required by
We do not believe that law enforcement would ignore
We thus agree with the district court that the standards for releasing Internet identifying information to the public are inadequate to constrain the discretion of law enforcement agencies and that, as a result, registered sex offenders are unnecessarily deterred from engaging in anonymous online speech.
c. 24-hour reporting requirement
Third, the Act‘s 24-hour update requirement undeniably impedes protected
Moreover, anytime registrants want to communicate with a new identifier, they must assess whether the message they intend to communicate is worth the hassle of filling out a form, purchasing stamps, and locating a post office or mailbox. The mail-in requirement is not only psychologically chilling, but physically inconvenient, since whenever a registered sex offender obtains a new ISP or Internet identifier, he must go somewhere else within 24 hours to mail that information to the State. Cf. Lamont, 381 U.S. at 307 (holding that a law requiring addressees of communist political propaganda to request in writing that the mailing be delivered [wa]s almost certain to have a deterrent effect).
The Act‘s 24-hour reporting requirement thus undoubtedly chills
The 24-hour reporting requirement is not only onerous, it is also applied in an across-the-board fashion. The requirement applies to all registered sex offenders, regardless of their offense, their history of recidivism (or lack thereof), or any other relevant circumstance. And the requirement applies to all websites and all forms of communication, regardless of whether the website or form of communication is a likely or even a potential forum for engaging in illegal activity. (If for example a sex offender establishes a username on a news outlet‘s website for purposes of posting comments to news articles, it is hard to imagine how speedily reporting that identifier will serve the government‘s interests.) In short, we have a hard time finding even an attempt at narrow tailoring in this section of the Act. See White, 696 F.Supp.2d at 1309 (A regulatory scheme designed to further the state‘s legitimate interest in protecting children from communication enticing them into illegal sexual activity should consider how and where on the internet such communication occurs.).
*
*
*
Because the CASE Act‘s requirements are not clear, the information may be too freely shared with the public, and the 24-hour reporting requirement is onerous and overbroad, we conclude that Appellees are likely to prevail on their claim that the CASE Act unnecessarily deters registered sex offenders from engaging in legitimate expressive activity.8
B. Irreparable Harm, Balance of Equities, and the Public Interest
Even where a plaintiff has demonstrated a likelihood of success on the merits of a
Here, we conclude that the district court did not abuse its discretion in deciding that all the necessary elements for obtaining a preliminary injunction are satisfied. We have held that that [t]he loss of
As to the balance of equities, we recognize that while the preliminary injunction is pending, there will be some hardship on the State. Nevertheless, the balance of equities favors Appellees, whose
Finally, the public interest favors the exercise of
III. CONCLUSION
The district court did not abuse its discretion by granting Appellees’ motion to preliminarily enjoin provisions of the CASE Act. The district court‘s judgment is
AFFIRMED.