Even as Californians were voting to reform their notoriously harsh three-strikes rule by a large margin last week, they also overwhelmingly supported adding restrictive new rules to the state’s sex-offender law. The new rules are part of Proposition 35, a broad initiative about human trafficking that received 81 percent of the vote on Tuesday. By the next day, however, a federal judge had already blocked the sex-offender rules.
Proposition 35 says registered sex offenders must immediately turn over to local police all of their online “identifiers” and their Internet service providers. This includes all email addresses and user names that they use to participate in online forum discussions and social networks. The law applies to all of the more than 73,000 sex offenders who are already on the California registry, including those whose crimes had nothing to do with the Internet.
The ACLU and the Electronic Frontier Foundation immediately filed a class-action lawsuit to protest the new requirements. The two civil rights groups argued that the law is unconstitutional because it restricts the offenders’ free speech and freedom to associate, including their right to anonymous online speech. One of the two anonymous sex offenders leading the suit said that he would no longer take part in online political discussions or comment on newspaper articles or blogs for fear of retaliation and social stigma because of his offender status (the other lead sex-offender plaintiff moved out of the state because of the new law). The groups argue that this is an unconstitutional burden on speech.
The ACLU also warned that laws that begin with sex offenders can easily be expanded to include other swaths of the California population. They pointed out that an earlier law requiring DNA samples was first passed only for sex offenders and those convicted of the most serious felonies, but was eventually expanded to include anyone arrested—in addition to convicted—on a felony charge.
Finding that the ACLU was likely to succeed in showing the law was unconstitutional, a judge temporarily blocked the provisions. The ruling was based only on filings from the opponents, and the law's proponents have argued that it is a necessary tool to address a real human trafficking problem in the state. California’s attorney general will get a chance to more fully defend the law at a hearing on Nov. 20.
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Too bad it’s almost certainly unconstitutional.