ACLU and EFF Challenge Free Speech Restrictions in California's Proposition 35
San Francisco - Today the ACLU of Northern California (ACLU-NC) and the Electronic Frontier Foundation (EFF) filed a federal class-action lawsuit to block implementation of unconstitutional provisions of Proposition 35 - a ballot measure passed by California voters Tuesday that restricts the legal and constitutionally protected speech of all registered sex offenders in California.
Proposition 35 requires anyone who is a registered sex offender - even people with decades-old, low-level offenses like misdemeanor indecent exposure and people whose offenses were not related to the Internet - to turn over a list of all their Internet identifiers and service providers to law enforcement. While the law is written very unclearly, this likely includes email addresses, usernames and other identifiers used for online political discussion groups, book and restaurant review sites, forums about medical conditions, and newspaper or blog comments.
Under the law, more than 73,000 Californians must immediately provide this information to law enforcement, and must report any new account or screen name within 24 hours of setting it up, even if the new screen name is their own real name. Violations can result in years in prison.
Proposition 35's online speech regulations are overly broad and violate the First Amendment, both because they prohibit anonymous speech and because the reporting requirements burden all sorts of online speech, even when the speaker is using his own real name as a screen name.
"The ability to speak freely and even anonymously is crucial for free speech to remain free for all of us," said Michael Risher, staff attorney at the ACLU-NC. "Stopping human trafficking is a worthy goal, but this portion of Prop 35 won't get us there."
The suit was filed Wednesday in U.S. District Court for the Northern District of California on behalf of two individuals required to register as sex offenders and a non-profit organization, California Reform Sex Offender Laws - a group that believes that no sexual abuse is ever acceptable and that laws that paint all sex offenders with one broad brush are counter-productive. The California Reform website allows people to comment on posts and they regularly do so, generally under pseudonyms.
"Requiring people to give up their right to speak freely and anonymously about civic matters is unconstitutional, and restrictions like this damage robust discussion and debate on important and controversial topics," said EFF Staff Attorney Hanni Fakhoury. "When the government starts gathering online profiles for one class of people, we all need to worry about the precedent it sets."
Even before Tuesday's vote, California's sex offender statue was already very broad, with a lifetime registration requirement for even low-level convictions like nude erotic dancing on stage at a bar. The state has the tools to determine who presents a risk to public safety and who doesn't - but this statute applies to everybody, no matter what the risk.
"We're asking the judge today to block the illegal provisions of Prop 35," said Risher.
Complaint (Nov. 7, 2012)
Temporary Restraining Order (Nov. 7, 2012)