New endorsement of the right to anonymous speech in Florida

|The Volokh Conspiracy |

A man poses with a magnifier in front of a Facebook logo on display in this illustration taken in Sarajevo, Bosnia, on Dec. 16. (Dado Ruvic/Reuters)

Federal district judge Robert Hinkle (Northern District of Florida) has entered a preliminary injunction against enforcement of Florida's impending requirement that all registered sex offenders in the state reveal to law enforcement all of their "Internet identifiers" before using them for Internet communication. The Florida statute defined "Internet identifiers" this way:

" 'Internet identifier' " includes, but is not limited to, all website uniform resource locators (URLs) and application software, whether mobile or nonmobile, used for Internet communication, including anonymous communication, through electronic mail, chat, instant messages, social networking, social gaming, or other similar programs and all corresponding usernames, logins, screen names, and screen identifiers associated with each URL or application software. Internet identifier does not include a date of birth, Social Security number, or personal identification number (PIN), URL, or application software used for utility, banking, retail, or medical purposes."

The court (correctly) held that this definition was "hopelessly vague." (Full disclosure: I was one of the expert witnesses supporting the challengers in this case.)

The official who oversees the registry, and who apparently worked on drafting the amended definition, has testified that the definition applies only to "identifiers used for social or person-to-person communication." Further, the official says the reason for the amendment was to clarify that the registration requirement applies only to identifiers used for "social communication" and to websites and applications used for "social communication." But that is not what the amended definition says. . . .

[And] the definition is much broader than that, including, for example, a "uniform resource locator (URL)," at least in some circumstances. The Commissioner gives as an example of a URL that must be registered <facebook.com>. As a matter of ordinary usage, if asked to disclose one's own internet identifiers, nobody would list <facebook.com>. That may be an internet identifier of Facebook, Inc., but it is not, in ordinary usage, an "internet identifier" of the many individuals who have Facebook accounts. There is nothing inherently wrong with a legislature adopting a definition of a term that is broader than ordinary usage. But here the definition begins by saying what the term "includes, but is not limited to." So the term is plainly broader than one might believe from ordinary usage. And the definition sets no outer limit, because the term is expressly "not limited to" what the definition says.

Having jettisoned the ordinary understanding and replaced it with an expressly unlimited description, the definition leaves a sex offender guessing at what must be disclosed.

More fundamentally, the definition, at least on many plausible readings, is hopelessly and unnecessarily broad in scope. Thousands of examples could be given. . . . Suppose John Doe, a registered sex offender, has a digital subscription to a newspaper. He gets an email every morning with the day's headlines, and he gets several more emails every day sending additional articles or reporting breaking news. He plainly must register at least the URL for the newspaper, if not the URL for every article the newspaper sends. But the State has absolutely no legitimate interest in requiring a sex offender to register the URL of the newspaper or articles the offender reads. And if Mr. Doe chooses one day to make a comment on an article, he must now figure out whether the same URL is in use, and he must make his identity available to the public. Unlike every other subscriber or member of the public, Mr. Doe cannot comment anonymously. See White v. Baker, 696 F. Supp. 2d 1289, 1313 (N.D. Ga. 2010) (holding that enforcement of a registration requirement would irreparably harm a registered sex offender "by chilling his First Amendment right to engage in anonymous free speech"). [Emphases supplied]

Vagueness concerns can often, of course, be cured by an appropriate revision of the statutory language, and a holding that this statute's rather unusual definition was hopelessly (and unconstitutionally) vague can have little relevance for challenges in other states with other statutes. But the strong endorsement of the First Amendment's right to anonymous speech may give the decision a broader significance.