A setback for First Amendment protection for anonymous speech

|The Volokh Conspiracy |

Continuing the one-step-forward, one-step-backward pattern that has characterized the cases examining the constitutionality of state sex offender registry statutes, the Illinois Supreme Court has upheld the provisions of the Illinois sex offender statute compelling disclosure of all "Internet identifiers" just a few weeks after the district court in Florida struck down, on First Amendment grounds, a virtually identical provision in the Florida statute.

Here's the background: Mark Minnis was convicted of "criminal sexual abuse," a misdemeanor, in 2010; he was 16 years old at the time, and his conviction was based on his having had sexual relations with a 14-year-old girl. He was sentenced to 12 months probation, which he completed without incident.

His conviction, however, had much more serious and lasting consequences—consequences that may follow him for the remainder of his life—because it placed him on the Illinois sex offender registry. Individuals on the Illinois registry, like registrants in most of the 50 states, have to disclose the following information to state law enforcement officials:

all e-mail addresses, instant messaging identities, chat room identities, and other Internet communications identities that the sex offender uses or plans to use;

all Uniform Resource Locators (URLs) registered or used by the sex offender; [and]

all blogs and other Internet sites … to which the sex offender has uploaded any content or posted any messages or information …."

This information is then made available to the public:

"Law enforcement officials must disclose [the identifier information] to the following county entities: institutions of higher education, public school boards, child care facilities, libraries, public housing agencies, the Illinois Department of Children and Family Services, social service agencies providing services to minors, and volunteer organizations providing services to minors. For all other members of the public, this information must be made available upon request and may be placed 'on the Internet or in other media.' Further, the Illinois State Police must maintain an Internet website that makes sex offenders' registration information available to the public."

Minnis registered two email identifiers, along with his Facebook username, in 2011; in his 2014 registration, however, he omitted the Facebook identifier. Police officers, having "viewed [his] publicly accessible Facebook profile online [and] observed that he changed his Facebook cover photo only one month prior to his registration," charged him with violating the Internet identifier disclosure provision of the statute (a felony, punishable by 1 year in prison).

Minnis challenged the statute on the grounds that it unconstitutionally abridged his right, protected under the First Amendment, to speak anonymously. The state trial court court agreed, holding that the Internet disclosure provision was unconstitutional both on its face and as applied to defendant, but the Illinois Supreme Court overturned that decision and upheld the statute.*

* This case is a close cousin of the case (North Carolina v. Packingham) that, as Eugene recently noted, will be heard this term by the Supreme Court. Both cases involve a First Amendment challenge to a state sex offender registry statute. But the two challenges have different legal foundations; while both statutes compel the disclosure of Internet identifiers, the North Carolina statute additionally prohibits registrants from accessing any social media websites that allow persons under the age of 18 to open accounts or post messages, and the North Carolina case turns on that provision, rather than the compelled disclosure provision at issue in the Illinois case.

The court paid the usual deep-toned lip service to the importance of protecting anonymous speech—"The first amendment right to freedom of speech includes the right to publish and distribute writings while remaining anonymous … Anonymity is a shield from the tyranny of the majority [and] thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society"—while simultaneously demonstrating just how weak a reed that protection really is.

The court applied the decidedly weak tea of "intermediate scrutiny" to the Internet disclosure provision—reversible error No. 1**—under which the government need only demonstrate that the disclosure provisions (a) "serve or advance a substantial governmental interest unrelated to the suppression of free speech," and that they (b) "do not burden substantially more speech than necessary to further that interest." No need, importantly, for the government to show, as it must under more robust "strict scrutiny"—that the statute is the "least restrictive or intrusive means of advancing the government's interest"; rather, the constitution is satisfied so long as the law advances that governmental interest "more effectively" than it would be advanced without the law in question.

** In my opinion (see here) courts must apply the highest level of First Amendment scrutiny—"strict scrutiny"—to statutory schemes that, like the Illinois statute here, completely destroy the ability of a class of persons to communicate anonymously online.

Part (a) was (and always is) easy enough: The governmental interest ("preventing sex offenses against children and protecting the public") is (obviously and uncontroversially) substantial, and the disclosure provisions serve that interest by "provid[ing] crucial information to law enforcement agencies monitoring the movement of sex offenders, and disseminating the information to the public."

You might pause for a moment and consider just how government-friendly this part of the test is. A statute requiring all high school teachers, or all auto mechanics, or all librarians, etc. to disclose all of their Internet identifiers to the police would also, surely, serve a substantial government law-enforcement interest, because after all, many high school teachers, auto mechanics, and librarians commit crimes of various kinds, and it would surely help to prevent some of those crimes if law enforcement had more complete information about what all of those people are doing online.

To the extent "intermediate scrutiny" has teeth—and I'm generally skeptical of this point—it comes in part (b): Has the government demonstrated that these disclosure provisions do not "burden substantially more speech than necessary" to advance that interest?

Here's how—reversible error No. 2—the court disposed of that question:

We conclude that the Internet disclosure provision advances the substantial governmental interest of preventing sex offenses against children and protecting the public from the danger of recidivist sex offenders. The disclosure provision identifies the locations on the Internet to which the sex offender has transferred expressive material from his computer or has otherwise engaged in communication. These disclosures empower the public, if it wishes, to make the informed decision to avoid such interactions. The information required for the public to protect itself is broad because any communication by a sex offender with the public is related to the statutory purpose.

There—that was easy! Any communication by a sex offender with the public is related to the statutory purpose (including, one must suppose, Mr. Minnis's declaration that he "likes" Lady Gaga's new album, or that his soccer club is meeting on Wednesday night, or that he's really pissed off about the pace of construction on I-80 outside of Rockford, Ill., … anything, in other words, that might appear on his Facebook page or that he might post on the Facebook pages of others), so burdening all of Minnis's speech—eliminating the right to speak anonymously for all of his online communications—is necessary to serve that purpose.

If that's all it takes to satisfy the Constitution, anonymous online communication is, for all intents and purposes, a dead duck. Remember: first they came for the Socialists

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