A federal judge in San Francisco issued a preliminary injunction Friday blocking a section of a voter initiative that would have required the state’s 73,000 registered sex offenders to tell police their online screen names and Internet service providers.
U.S. District Judge Thelton Henderson said the requirement in Proposition 35 was overly broad in its reach and violated sex offenders’ First Amendment free speech right to comment anonymously on civic issues online.
“Registrants are likely to be chilled from engaging in legitimate public, political and civic communications for fear of losing their anonymity,” Henderson wrote.
The preliminary injunction will remain in effect until a not-yet-scheduled trial is held before Henderson on whether there should be a permanent injunction.
The judge ruled in a lawsuit filed by two anonymous registered sex offenders and an online discussion group called California Reform Sex Offender Laws on Nov. 7, the day after Proposition 35 was approved by 81 percent of California voters.
The initiative, known as the Californians Against Sexual Exploitation Act, also increases sentences and fines for people convicted of human trafficking. Those provisions were not challenged in the lawsuit.
The plaintiffs were represented by lawyers from the American Civil Liberties Union and the Electronic Frontier Foundation.
EFF attorney Hanni Fakhoury said, “We’re glad the court recognized the chilling effects Prop. 35 has on online speech.
“This is an important step in ensuring that the First Amendment isn’t the casualty of a well-intentioned initiative,” Fakhoury said.
Proposition 35 sponsor Chris Kelly, a former Facebook chief privacy officer, said, “We are disappointed with this decision, but we are confident that in due time this common sense provision will be upheld by the courts.”
“We will continue to advocate for the protection of vulnerable women and children online and on our streets that California voters called for in their overwhelming support of Proposition 35,” he said.
The Internet disclosure requirement never went into effect because Henderson suspended it with a temporary restraining order a few hours after the lawsuit was filed.
He held a hearing Dec. 17 on the plaintiffs’ request for a preliminary injunction and granted the order in today’s ruling.
Henderson said in the decision that the state government has a legitimate interest in protecting individuals from online sex offenses and human trafficking, but said the record in the case thus far has not shown that the challenged section of the initiative was narrowly tailored to meet that purpose.
Citing a 1995 Supreme Court ruling, Henderson wrote that “anonymity is a shield from the tyranny of the majority” and said the plaintiffs “enjoy no lesser right to anonymous speech simply because they are unpopular.”
The registered offenders who filed the lawsuit used the pseudonyms of John Doe, described as a 75-year-old Alameda man, and Jack Roe, described as a former California resident who wants to return to the state.
They and the group California Reform Sex Offender Laws argued that disclosure of their online user and screen names would deter registrants from commenting on public issues for fear of harassment or retribution.
Julia Cheever, Bay City News