The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Beginning in the 1930s, shortly after the Supreme Court had "incorporated" the First Amendment into the due process clause (thereby making it an enforceable constraint not only on the federal government ["Congress shall make no law . . ."] but on State and municipal governments as well) the Jehovah's Witnesses went on a campaign to attack, in court, restrictions on their ability to proselytize door-to-door and to give voice to unpopular views. During one particular 8 year period (1938 to 1946) they brought no fewer than 23 separate First Amendment actions to the Supreme Court (prompting Justice Stone to quip that they "ought to have an endowment in view of the aid they give in solving the legal problems of civil liberties"). They won some spectacularly important victories – West Virginia Board of Ed. v Barnette (1943) (children cannot be forced to recite the Pledge of Allegiance or salute the flag), Chaplinsky v New Hampshire (19420 (establishing the "fighting words" doctrine, and overturning conviction of a Jehovah's Witness who called a local official a "damned racketeer" and a "fascist"), Watchtower Society v. Village of Stratton (2002) (overturning municipal ordinance requiring government permits for all door-to-door advocacy).***
They were widely reviled – especially during World War II and the Korean War, their position as conscientious objectors to military service and their refusal to salute the flag made them the object of great hostility – but in retrospect, we all owe them a great debt of gratitude. It took (and it takes) real courage to stand up to the combined forces of public opinion and the state to voice opinions that others find highly objectionable and even inflammatory, and we all enjoy, in a much stronger First Amendment than we might otherwise have, the benefits of their having had the courage to have done so.
Yesterday the 9th Circuit issued its decision striking down California's CASE (Californians Against Sexual Exploitation) Act as violative of the First Amendment. The Act required previously-convicted sex offenders to provide "[a] list of any and all Internet identifiers established or used," a "list of any and all Internet service providers used," and to send written notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider; it also provided for fairly severe criminal penalties for non-compliance.
This is the latest in what is becoming a large series of cases involving First Amendment challenges to state sex offender registration statutes. There have been cases like this one in Nebraska, Indiana, Louisiana, Pennsylvania, to name a few. I've blogged about some of them before – e.g., here and here – and (full disclosure) I've been involved in several of them (including this California case) as an expert testifying on behalf of the challengers.
The court's opinion here – at least to someone on the side of the fence that I'm on – has a terrific analysis of the First Amendment issues at stake, and some strong First-Amendment-protective language that will, I promise you, come in very, very handy in future battles – the ones that are coming that will not involve just convicted sex offenders. The court struck down the statute on the grounds that it "unnecessarily chills protected speech" in three ways: the" Act does not make clear what it is that sex offenders are required to report, there are insufficient safeguards preventing the public release of the information sex offenders do report, and the 24-hour reporting requirement is onerous and overbroad." There is, in particular, some very forceful language about the right, under the First Amendment, to speak anonymously – an issue that, as I keep harping on, is going to be a major First Amendment battleground during the the next decade or so. The court wrote:
Although this is not what some might call the classic anonymous-speech case, where speakers allege they are required to disclose their identities directly to their audience, we conclude that the Act nevertheless chills anonymous speech because it too freely allows law enforcement to disclose sex offenders' Internet identifying information to the public. . . . We agree with the district court that the standards for releasing Internet identifying information to the public are inadequate to constrain the discretion of law enforcement agencies and that, as a result, registered sex offenders are unnecessarily deterred from engaging in anonymous online speech.
[S]ex offenders' fear of disclosure in and of itself chills their speech. If their identity is exposed, their speech, even on topics of public importance, could subject them to harassment, retaliation, and intimidation. See McIntyre, 514 U.S. at 341-42 ("The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible."); Brown v. Socialist Workers '74 Campaign Comm. (Ohio), 459 U.S. 87, 100 (1982) (holding that disclosure requirements may subject unpopular minority groups to "threats, harassment, and reprisals"). Anonymity may also be important to sex offenders engaged in protected speech because it "provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent."
Pretty strong stuff. It has made me think about the Jehovah's Witnesses. Convicted sex offenders are probably one of a very small number of groups that are even more despised than the Jehovah's Witnesses were in the Thirties and Forties, and they have consequently been singled out for very harsh treatment in the law. Fighting back, they're helping to make some good First Amendment precedent, and when the government starts cracking down on other speech by other speakers, or attempting to restrict our ability to use anonymizing tools in our Internet communications – as it will – we'll be grateful to them for having done so.
***Shawn Peters' excellent "Judging Jehovah's Witnessess" tells this story in great detail, if you're interested.
UPDATE: A number of the comments, and several communications I received directly from readers, have pointed to some serious criticisms of the Jehovah's Witnesses (regarding possible sex abuse claims, indoctrination attempts, and the like). Just to be clear: I have no particular position on any of that; I'm not trying to excuse anything they may or may not have done, nor do I have any particular information about their internal practices. My column was certainly not trying to suggest otherwise. My point in bringing them up was just that they have an important place in First Amendment history – a place I think is secure, irrespective of who they are or what they represent or how they behave.