sex offenders, anonymous internet speech, and the constitution

8/18/2019 Sex Offenders, Anonymous Internet Speech, and the Constitution

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PRELIMINARY /W ORKSHOP DRAFT - 3/31/16PREPARED FOR YALE FREEDOM OF EXPRESSION SCHOLARS’ CONFERENCE , 4/1/16

Sex Offenders, Anonymous Internet Speech, and the Constitution

David Post*/Annemarie Bridy**

Outline:

I. Introduction

II. The SORNA identity disclosure rules

A. Federal Law

B. State Law

III. The emerging constitutional doctrine

A. Content-neutrality and intermediate scrutiny

B. Speaker discrimination

C. Public disclosure and the nature of anonymity

IV. Implications

* * * * * * * * * *

I. Introduction

Last year, at this conference, Prof. Michael Froomkin gave a rather gloomy

assessment of the prospects for retaining substantial capabilities for anonymous

electronic communication.1 He pointed to increasingly sophisticated, and more

pervasive, governmental surveillance activities, to the development of new

“identification technologies,” and to certain “commercial and regulatory incentives,” all

of which have already made it “difficult for anyone other than the most sophisticated

users to remain effectively anonymous.” He described a world in which “the abolition

of online anonymity is now a real possibility, both technically and legally,” and he wenton to explain why, as he put it, “that would be unfortunate.”

* Professor (ret.), Temple University Law School; Contributor, Volokh Conspiracy. [email protected].

** Professor, Univ. of Idaho College of Law. [email protected].

1 A. Michael Froomkin, “Lessons Learned Too Well: Anonymity in a Time of Surveillance,” available at

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1930017.


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There was, however, one bright spot in the legal and regulatory landscape that

Froomkin surveyed: strong constitutional protection - in the U.S., at least - for

anonymous communications. “In the United States,” he wrote,

. . . the government has not sought to make anonymity illegal or to requireidentification directly. Indeed, a legal requirement that persons identifythemselves online would not only be controversial but would likely beunconstitutional. . . .

As regards U.S. law, the constitutional case is straightforward: It is settledconstitutional law that the rights to anonymous speech and association are keyprotections for members of threatened minorities and unpopular organizations....And there is also a line of cases starting with Talley v California, then McIntyre vOhio Elections Comm’n, and running through the more recent Watchtower Bible andTract Society, in which the Supreme Court has made it clear that there is asweeping constitutional right to anonymous religious and political speech. Anywholesale bans on anonymous speech ... would reach this zone of core FirstAmendment speech and are therefore unconstitutional - at least until thedoctrine bends.”

But the news on this front, too, is rather more ominous and threatening than this

might make it appear. In a small and rather out-of-the-way corner of the legal universe -

one that is probably unfamiliar to many people interested in questions about

constitutional protection for anonymous Internet speech - the government has indeed

“sought to make anonymity illegal” and imposed “legal requirements that individuals

identify themselves online.” “Wholesale bans” on anonymous Internet speech are

already in place. And in a number of decisions, the courts have shown that the

constitutional case for their invalidity is neither settled nor straightforward, and that the

doctrine may indeed be “bending” in an unfavorable direction.

This paper surveys a line of constitutional “anonymity doctrine” that is

developing in connection with a complex federal and state regime (“SORNA,” for “Sex

Offender Registration and Notification Acts”) imposing identity disclosure

requirements on “sex offenders” – defined broadly as all persons who have been

“convicted of a criminal offense that has an element involving a sexual act or sexual


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contact with another” under federal or State law.2 Over 800,000 people (approximately

¼ of whom were juveniles at the time of the previous conviction) currently fall into this

category.

SORNA requires these sex offenders to register with local law enforcementauthorities, and to reveal in their registration documentation all of the “Internet

identifiers” – email addresses, social-networking handles, website usernames, and all

other “designations used for self-identification or routing in Internet communication or

posting” – that they “use or will use.”3 Failure to comply with this disclosure

requirement – which will last, for many of the individuals on whom it is imposed, for

their entire lifetime – is a felony criminal offense (under both federal and State law).

A small but growing body of law challenging the constitutionality of these

requirements has developed, and there’s good news and bad news for the constitutional

right to speak anonymously. The bad news is that a number of cases have upheld the

disclosure requirements against constitutional challenge, and – perhaps more

worrisome – that even those which have struck them down have done so in a manner

that may provide little comfort to those seeking robust constitutional protection for

anonymous speech.

The good news is that litigation is ongoing, the doctrine is very much in flux, and

many opportunities present themselves to push this developing law onto a more

reasonable path.

II. The SORNA identity disclosure rules

The legal regime governing the rights and obligations of persons previously

convicted for sex-related offenses is staggeringly complex, involving a bewildering

242 USC §16911(1). The definition includes “all sexual offenses whose elements involve: (i) any type or degree of

genital, oral, or anal penetration, or (ii) any sexual touching of or contact with a person’s body, either directly or

through the clothing.” DOJ National Guidelines For Sex Offender Registration and Notification (the “DOJ

Guidelines”), 73 Federal Register 128 (July 2, 2008), pp.38030-38070, available at

http://www.ojp.usdoj.gov/smart/pdfs/fr_2008_07_02.pdf

3 42 USC §16915a(e)(2). The Internet identifier information is in addition to a great deal of other identifying

information, including name, address, Social Security number, place of employment, license plate numbers, etc.,

that must be included in the offender’s registration documentation. See 42 USC § 16914.


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array of federal and state statutes. While sex offender registration, and regulation of sex

offender conduct, is largely a matter of local (State) law, the federal government does

play a critical organizing, and coordinating, role.

A. FEDERAL LAW The federal Sex Offender Registration and Notification Act of 20064

(SORNA) imposes obligations both on individuals and on States.5

1. Registration. The basic obligation imposed by SORNA on individual “sex

offenders” (as defined – see below) is that they “register [with the State Registry] in

each jurisdiction where the offender resides, where the offender is an employee, and

where the offender is a student.”6 The following information must be included in the

registration (and must be kept current and up-to-date):

“The sex offender shall provide the following information to the appropriateofficial for inclusion in the sex offender registry:

(1) The name of the sex offender (including any alias used by the individual).(2) The Social Security number of the sex offender.(3) The address of each residence at which the sex offender resides or will reside.(4) The name and address of any place where the sex offender is an employee orwill be an employee.(5) The name and address of any place where the sex offender is a student or willbe a student.

(6) The license plate number and a description of any vehicle owned or operatedby the sex offender.(7) Any other information required by the Attorney General.7

Pursuant to a 2008 amendment (the “Keeping the Internet Devoid of Sexual

Predators (KIDS) Act of 2008”8), sex offenders must also provide all “Internet identifiers

4 42 USCA §16901 et seq, available here: http://www.ojp.usdoj.gov/smart/pdfs/42_usc_index.pdf , was enacted on

July 27, 2006 as Title I of the Adam Walsh Child Protection and Safety Act of 2006, and is the most recent of many

congressional efforts to set ‘minimum standards’ for jurisdictions to implement in their sex offender registration or

notification systems. See DOJ, “Sex Offender Registration and Notification in the United States: Current Case Lawand Issues,” (Sept. 2014), available at http://www.smart.gov/caselaw/handbook_sept2014.pdf.

5 SORNA imposes these obligations on DC, Guam, Puerto Rico, Guam, and federally-recognized Indian tribes as well

as on States; I will refer to all of these jurisdictions as “States” for convenience in this memo. See 42 USC § 16911

(10).

6 42 USC § 16913(a).

7 42 USC § 16914.

8 42 USC §16915a-16915b; available here: http://www.ojp.usdoj.gov/smart/pdfs/kids_act_2008.pdf .


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[of] any type that the Attorney General determines to be appropriate under that Act” –

including all “electronic mail addresses and other designations used for self-

identification or routing in Internet communication or posting”9 – that the sex offender

“uses or will use.”10

Failure to comply with these registration requirements is a felony criminal offense

under federal law. See 18 USC §2250:

“Whoever(1) is required to register under [SORNA]; [and](2)

(A) is a sex offender as defined for the purposes of SORNA byreason of a conviction under Federal law . . . or (B) travels in interstate or foreign commerce, or enters or leaves, or

resides in, Indian country; and(3) knowingly fails to register or update a registration as required by the

Sex Offender Registration and Notification Act;

shall be fined under this title or imprisoned not more than 10 years, or both.”11

Failure to comply with the registration requirements is, additionally, a felony

criminal offense under State law; SORNA specifically requires that each State “shall

provide a criminal penalty that includes a maximum term of imprisonment that is

greater than 1 year” for failure of a sex offender to comply with SORNA’s registration

requirements.12

9 42 USCA § 16915a(e)(2).

10 42 USC §16915a(a). The DOJ’s 2008 National Guidelines For Sex Offender Registration and Notification (the

“Guidelines”), 73 Federal Register 128 (July 2, 2008), pp.38030-38070, available at

http://www.ojp.usdoj.gov/smart/pdfs/fr_2008_07_02.pdf , explain that “name and aliases … include … any

designations or monikers used for self-identification in Internet communications or postings Id , at 38050. The

Guidelines further require that sex offenders must report “all designations used by sex offenders for purposes of

routing or self-identification in Internet communications or postings” to the sex offender registry, including “e-mailand instant messaging addresses,” and that sex offenders must immediately report changes of such Internet

identifiers to the jurisdictions Id. at 38066.

11 18 USC §2250.

12 42 USC 16913(e). It’s not quite correct to say that States are “required” to impose criminal penalties. SORNA

does not require States to implement any of its provisions; instead, it conditions federal funding on compliance:

States that fail to “substantially implement” SORNA’s provisions “shall not receive 10 percent of the funds that

would otherwise be allocated” under the Omnibus Crime Control and Safe Streets Act of 1968.” 42 USC §16925.


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SORNA defines a “sex offender” as anyone who has been “convicted of a sex

offense” under federal, State, territorial, or tribal law.13 A “sex offense” is defined as “a

criminal offense that has an element involving a sexual act or sexual contact with

another.”14

1342 USC §16911(1).

14 42 USC §16911(5). The full definition of “sex offense” reads as follows:

“Generally. Except as limited by subparagraph (B) or (C), the term “sex offense” means—

(i) a criminal offense that has an element involving a sexual act or sexual contact with another;

(ii) a criminal offense that is a specified offense against a minor;

(iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of title 18,United States Code) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258),

or 117, of title 18, United States Code;

(iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public

Law 105-119 (10 U.S.C. 951 note); or

(v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).”

Subparagraph (B) exempts “foreign convictions” that were “not obtained with sufficient safeguards for

fundamental fairness and due process for the accused . . .”

Subparagraph (C) exempts certain offenses “involving consensual sexual conduct”:

“An offense involving consensual sexual conduct is not a sex offense for the purposes of this title if the

victim was an adult, unless the adult was under the custodial authority of the offender at the time of theoffense, or if the victim was at least 13 years old and the offender was not more than 4 years older than

the victim.”

The DOJ SORNA Guidelines, at http://ojp.gov/smart/sorna.htm, list the following federal crimes as

encompassed within the category of a “sex offense”:

- 18 U.S.C. §1591 (Sex Trafficking of Children)

- 18 U.S.C. §2241 (Aggravated Sexual Abuse)

- 18 U.S.C. §2242 (Sexual Abuse)

- 18 U.S.C. §2243 (Sexual Abuse of a Minor or Ward)

- 18 U.S.C. §2244 (Abusive Sexual Contact)

- 18 U.S.C. §2245 (Offenses Resulting in Death)

- 18 U.S.C. §2251 (Sexual Exploitation of Children)

- 18 U.S.C. §2251A (Selling or Buying of Children)

- 18 U.S.C. §2252 (Material Involving the Sexual Exploitation of Minors)

- 18 U.S.C. §2252A (Material Containing Child Pornography)

- 18 U.S.C. §2252B (Misleading Domain Names on the Internet)

- 18 U.S.C. §2252C (Misleading Words or Digital Images on the Internet)

- 18 U.S.C. §2260 (Production of Sexually Explicit Depictions of a Minor for Import in to the United States)

- 18 U.S.C. §2421 (Transportation of a Minor for Illegal Sexual Activity)

- 18 U.S.C. §2422 (Coercion and Enticement of a Minor for Illegal Sexual Activity


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Although the federal statute contains an exception for certain offenses “involving

consensual sexual conduct,” see note [14], individual States are free to include these

offenses on their list of registrable offenses.15

2. Notification

SORNA requires each State to “maintain a jurisdiction-wide sex offender registry

(SOR) conforming to the requirements of this title.”16 Each State “shall ensure” that the

registry includes certain specified pieces of information for each registrant

(corresponding to the information registrants are required to provide, including name,

physical description, arrest and conviction history, fingerprints, a DNA sample, and

“any other information required by the Attorney General”).17

Each State “shall make” information contained in its registry database “available on

the Internet, in a manner that is readily accessible to all jurisdictions and to the public,”

and it must “maintain the Internet site in a manner that will permit the public to obtain

- 18 U.S.C. §2423 (Transportation of Minors for Illegal Sexual Activity, Travel With the Intent to Engage in

Illicit Sexual Conduct with a Minor, Engaging in Illicit Sexual Conduct in Foreign Places))

- 18 U.S.C. §2424 (Failure to File Factual Statement about an Alien Individual)

- 18 U.S.C. §2425 (Transmitting Information about a Minor to further Criminal Sexual Conduct)

15 See the DOJ Guidelines, at http://ojp.cov/smart/sorna.htm:

“In all situations, jurisdictions have discretion to exceed the minimum standards of SORNA and require

registration upon convictions based on consensual sexual conduct.”

16 42 USC § 16912(a).

17 42 USC § 16914(b) gives the full list:

“The jurisdiction in which the sex offender registers shall ensure that the following information is includedin the registry for that sex offender: (1) A physical description of the sex offender. (2) The text of the

provision of law defining the criminal offense for which the sex offender is registered. (3) The criminal

history of the sex offender, including the date of all arrests and convictions; the status of parole,

probation, or supervised release; registration status; and the existence of any outstanding arrest warrants

for the sex offender. (4) A current photograph of the sex offender. (5) A set of fingerprints and palm prints

of the sex offender. (6) A DNA sample of the sex offender. (7) A photocopy of a valid driver's license or

identification card issued to the sex offender by a jurisdiction. (8) Any other information required by the

Attorney General.”


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relevant information for each sex offender by a single query for any given zip code or

geographic radius set by the user.”18

In addition, States must provide the information in their SOR databases to:

the Attorney General (for inclusion in the National Sex Offender Registrydatabase),

“law enforcement agencies, and each school and public housing agency, ineach area in which the individual resides, is an employee or is a student,”

“any agency responsible for conducting employment-related backgroundchecks under the National Child Protection Act of 1993,”

“social service entities responsible for protecting minors in the child welfaresystem,”

“volunteer organizations in which contact with minors or other vulnerableindividuals might occur,” and

“any organization, company, or individual who requests such notificationpursuant to procedures established by the jurisdiction.”19

The “Internet identifiers” are specifically exempted from mandatory disclosure

on the publicly-accessible State registry database websites.20 This, however, “does not

limit jurisdictions’ retention and use of sex offenders’ Internet identifier information for

purposes other than public disclosure, including submission of the information to the

national (non-public) databases of sex offender information, sharing of the information

with law enforcement and supervision agencies, and sharing of the information withregistration authorities in other jurisdictions,” nor does it limit “the discretion of

jurisdictions to include on their public Web sites functions by which members of the

public can ascertain whether a specified e-mail address or other Internet identifier is

18 42 USC § 16918.

19 42 USC § 16921.

20 42 USC §16915a(c) (the Attorney General “shall exempt from disclosure” the Internet identifier information

provided by registrants”); 42 USC §16918(b)(4) (providing that states “shall exempt from disclosure” on the

publicly-accessible Internet database certain specified information, along with “any other information exempted

by the Attorney General”).


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reported as that of a registered sex offender,” or to “disclose Internet identifier

information to any one by means other than public Web site posting.”21

Finally, the KIDS Act requires the Attorney General to “establish and maintain a

secure system that permits “social networking websites”22

to(a) “compare the information contained in the National Sex Offender Registry

with the Internet identifiers of users of the social networking websites,”23 to

(b) view any “Internet identifiers that match information in the Registry,” and to

(c) obtain from the Attorney General “information related to the identity of the

individual that has registered the matched Internet identifier . . . limited to the name,

sex, resident address, photograph, and physical description” of the individual using the

matching identifier.24

B. STATE LAW Federal law thus “encourages” each State to set up a sex offender

registry and notification system (and all 50 States have done so), and to apply for

21 See “The Supplemental Guidelines For Sex Offender Registration and Notification,” 76 Federal Register 7

(January 11, 2011), at 1637, available at

http://www.ojp.usdoj.gov/smart/pdfs/SORNAFinalSuppGuidelines01_11_11.pdf .

The Wisconsin statute is illustrative and not atypical. As summarized by the court in Doe v. Raemisch:

Wis. Stat. § 301.46 governs access to sex offender registry information. The statute requires [theWisconsin Department of Corrections] to immediately notify law enforcement agencies serving in the

community or county where a registered sex offender resides, works or attends school of the registrant’s

basic identifying information. The victim of the offender’s crime, or the family of the victim, must be

notified, as well. Upon request, the information must also be provided to the police chief or sheriff of

other communities or counties. A police chief or sheriff may then provide such information to various

other entities such as schools, government agencies, licensed care and treatment providers, neighborhood

watch programs, Boy and Girl Scout groups and any other nonprofit approved by DOC. Wis. Stat. §

301.46(4). In addition to the DOC’s own website, a company called Family Watchdog, Inc., by agreement

with DOC, operates its own website which performs monitoring, mapping and tracking function on

registered sex offenders. After a one-time request is made to get ‘alerts’ as to sex offenders, either

specifically by name or generally as a class, Family Watchdog automatically sends the requester alerts on

his or her computer, smartphone, or other text-capable electronic communication device. (emphasis

added)

22 A “social networking website” is defined as “an Internet website -- (i) that allows users, through the creation of

web pages or profiles or by other means, to provide information about themselves that is available to the public or

to other users; and (ii) that offers a mechanism for communication with other users where such users are likely to

include a substantial number of minors; and (iii) whose primary purpose is to facilitate online social interactions . .

.” 42 USC §16915a(e)(1).23

42 USC §16915b(a)(1).24

Id . at §16915b(a)(2).


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certification from the DOJ that its registration and notification scheme complies with the

substantive terms of the federal statute.25 The DOJ has made it clear that it regards those

substantive terms as merely minimum standards; that is, a State system can be deemed

“SORNA-compliant” even if the State has chosen to impose additional registrationrequirements on convicted sex offenders (or additional public/law enforcement

notification mechanisms),26 and many have done so – for instance, by expanding the

category of offenses deemed to require registration,27 increasing the amount of time that

individuals are required to remain on the registry,28 or enlarging the scope of personal

information that registrants are required to disclose and update.29

25 As of 2013, 19 State SORNA systems have been deemed compliant with the federal statute. See GAO Report,

“Sex Offender Registration And Notification Act: Jurisdictions Face Challenges to Implementing the Act, and

Stakeholders Report Positive and Negative Effects,” (GAO-13-211, Feb 7, 2013), available at

http://www.gao.gov/products/GAO-13-211.26

See DOJ, "Sex Offender Registration and Notification in the United States: Current Case Law and Issues" (Sept.

2014), available at http://www.smart.gov/caselaw/handbook_sept2014.pdf .27

According to a 2007 Human Rights Watch survey, see “No Easy Answers: Sex Offender Laws in the United

States,” available at https://www.hrw.org/report/2007/09/11/no-easy-answers/sex-offender-laws-us, at least five

States require registration for adult prostitution-related offenses (Alabama, Michigan, Oregon, Tennessee, and

West Virginia); thirteen States require registration for public urination (Arizona, California, Connecticut, Georgia,

Idaho, Kentucky, Massachusetts, Michigan, New Hampshire, Oklahoma, South Carolina, Utah, and Vermont); at

least 29 states require registration for consensual sex between teenagers (Alabama, Alaska, Arizona, Arkansas,

Colorado, Connecticut, Florida, Indiana, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota,

Missouri, New Hampshire, New Jersey, North Carolina, North Dakota, Oklahoma, Rhode Island, South Carolina,South Dakota, Tennessee, Texas, Utah, Washington, West Virginia, and Wisconsin) and at least 32 States require

registration for exposing genitals in public (Alabama, Arizona, Arkansas, California, Connecticut, Idaho, Illinois,

Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Mexico, North

Dakota, South Carolina, South Dakota, Tennessee, Texas, Vermont, and West Virginia).

28 According to the Human Rights Watch survey, see note 27, 17 States currently require lifetime registration for all

registrants—from the most minor offenders to the most serious, and two - Alabama and South Carolina - provide

no means by which a registrant might secure release from the registry requirement. In Alabama, for example, a

man convicted of soliciting an adult prostitute must register for life, with no way to obtain a release from the

registration requirements. The other 15 states allow some registrants to petition a court for removal from

registration requirements after living in the community offense-free for a specific number of years.

29E.g., Alaska requires registrants to disclose “the description, license numbers, and vehicle identification numbers

of motor vehicles the sex offender or child kidnapper has access to, regardless of whether that access is regular or

not . . . any identifying features of the sex offender or child kidnapper, anticipated changes of address, [and] a

statement concerning whether the offender or kidnapper has had treatment for a mental abnormality or

personality disorder since the date of conviction for an offense requiring registration under this chapter”);

Connecticut requires “documentation of any treatment received for mental abnormality or personality disorder”;

Hawaii requires “The actual address and telephone number where the covered offender is staying for a period of

more than ten days, if other than the stated residence; Names and, if known, actual business addresses of current

and known future employers and the starting and ending dates of any such employment; names and actual

addresses of current and known future educational institutions with which the covered offender is affiliated in any


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In addition, while federal law imposes no additional disabilities on registrants

(other than the duty to register), States are free to do so, and virtually all have done so –

with a vengeance. Depending on the State in question, registered sex offenders may be

(a) subject to a “civil confinement” regime that can keep them in custody at a “treatmentfacility” upon the recommendation of a State-employed psychiatrist or psychologist30;

(b) prohibited from residing or working – or, in some States, from merely setting foot31 –

in, or within specified distances of, schools, public parks, daycare facilities, libraries,

churches, or “areas where minors congregate”32; (c) prohibited from using the Internet

at all, or accessing/using specific Internet resources (e.g., social networking sites, instant

messaging systems, etc.)33; (d) prohibited in working in a long list of jobs, from working

in schools or child-care centers where they might have regular contact with minors, and

(e) subject to a “chaotic mess of penalties that just seems crazy and random”:

“For instance, Massachusetts forbids sex offenders from being ice cream truck

vendors. Delaware doesn’t allow felony sex offenders to be plumbers. Alaska

forbids felony sex offenders from being hearing aid dealers within five years of

an offense. In Kentucky, for 10 years after a felony sex offense, an offender can’t

be a land surveyor. And for certain sexual offenses, New Hampshire forbids

working at an ‘end stage renal disease dialysis center’.”34

way; [and] the year, make, model, color, and license number of all vehicles currently owned or operated by the

covered offender”; New Hampshire’s registration law specifically requires that registrants provide local law

enforcement with, among other things, their address, employer, professional licenses, social security numbers,

landlord information, telephone numbers, and license plate numbers.

30 See the compilation “Civil Commitment of Sex Offenders” at

http://www.ndaa.org/pdf/Sex%20Offender%20Civil%20Commitment-April%202012.pdf.

31 See Illinois 720 I.L.C.S. 5/11-9.3 (West 2008).

32 See “Validity of Statutes Imposing Residency Restrictions on Registered Sex Offenders,” 25 A.L.R.6th 227

(collecting cases).

33 See “Validity, Construction, and Application of State Sex Offender Statutes Prohibiting Use of Computers and

Internet as Conditions of Probation or Sentence,” 89 A.L.R.6th 261 (collecting cases).

34 “Not Wanted: Sex Offenders,” available at

http://www.slate.com/articles/news_and_politics/jurisprudence/2014/08/several_states_ban_people_in_the_sex

_offender_registry_from_a_bizarre_list.html. See also Human Rights Watch report, supra note 27, at 81-90

(discussing employment restrictions).


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III. The emerging constitutional doctrine

To review: As encouraged to do so by the federal SORNA statute, all 50 States

currently have in place a system under which individuals living or working in their

jurisdictions who have been previously convicted of a “sex offense” must inform Statelaw enforcement officials of all “Internet identifiers” that they use or will use. That

information (along with other personally identifying information, e.g., name,

photograph, and address) is shared with other State and federal “law enforcement and

supervision agencies,” which includes the DOJ and federal and state agencies

“responsible for conducting employment-related background checks under the

National Child Protection Act of 1993 [or for] protecting minors in the child welfare

system,” as well as with “volunteer organizations in which contact with minors or othervulnerable individuals might occur,” and “any organization, company, or individual

who requests such notification pursuant to procedures established by the jurisdiction.”

Individuals who fail to provide, or provide timely updates for, those identifiers are

subject to substantial criminal penalties under both State and federal law.

One might be forgiven for thinking that a robust First Amendment right to

communicate anonymously, derived from a line of Supreme Court cases starting with

Talley v California35 and continuing through McIntyre v Ohio Elections Comm’n36 and the

more recent Watchtower Bible and Tract Society v. Vill. of Stratton37 , would not

countenance a scheme under which almost a million U.S. citizens possessing the full

complement of constitutional rights38 are deprived of their ability to communicate

anonymously when using the medium through which a great deal of inter-personal

These additional disabilities raise very difficult and disturbing constitutional questions of their own, under the Due

Process, Equal Protection, and Ex Post Facto Clauses, which are outside the scope of this paper.

35 362 U.S. 60, 64-65 (1960).36

514 U.S. 334 (1995).37

536 U.S. 150 (2002).38

The category of “sex offenders,” on whom the Internet identifier disclosure obligations are imposed, covers

individuals who have already served whatever punishment was imposed on them for their criminal activity. While

courts have held that prisoners [cite] and parolees/probationers [cite] (as well as foreign nationals, the mentally

incompetent, and others) may not enjoy the full panoply of constitutional protections, the sex offender registry

provisions apply, by design, to individuals who are, in the eyes of constitutional law at least, no different than

other US citizens.


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communication takes place these days. At the very least, one would expect that the

government would bear a heavy burden, and would have to demonstrate that this

abridgement of a fundamental right was “narrowly tailored” in meaningful ways to

achieve some very important and otherwise-difficult-to-achieve governmentalobjective.

Eleven courts have now considered the question, and they are fairly evenly split.

Six have struck down the Internet identifier requirements of their respective State

statutes on “right to anonymity” grounds:

Doe v. Harris, 772 F.3d 563 (9th Cir. 2014) (CA law)Doe v. Marion Cnty., 705 F.3d 694 (7th Circ. 2013) (IN law)Doe v. Nebraska, 898 F.Supp.2d 1086 (D. Neb. 2012) (NE law)

Doe v. Jindal, 853 F.Supp.2d 596 (D. La. 2012) (LA law)White v. Baker , 696 F. Supp. 2d 1289 (N.D. Ga. 2010) (GA law)State of Illinois v Minnis (IL Cir. Ct., July 7 2015) (IL law)

and five have upheld them:

Doe v. Shurtleff , 628 F.3d 1217 (10th Cir. 2010)) (UT law)Doe v. Raemisch, 895 F. Supp. 2d 897 (E.D. Wis. 2012) (WI law)Doe v. Snyder , 101 F. Supp. 3d 672 (E.D. Mich. 2015) [now on appeal, 6th Circuit](MI law)Harris v. State, 985 N.E.2d 767 (Ind. App. 2013) (IN law)

Coppolino v. Comm'r of the Pa. State Police, 102 A.3d 1254 (Pa. Commw. Ct. 2014)(PA law)

Aside from the disturbing implications of a process that produces results that are

indistinguishable from the results one would get by flipping an unbiased coin to decide

case outcome,39these results clearly suggest that there may be some serious cracks in the

wall of First Amendment protection for anonymous speech. What do those cracks look

like? Can they be repaired, and, if so, how?

39See Gary Neustadter, “Randomly Distributed Trial Court Justice: A Case Study and Siren from the Consumer

Bankruptcy World (January 25, 2016). American Bankruptcy Institute Law Review, Forthcoming; Santa Clara Univ.

Legal Studies Research Paper No. 1-16. Available at http://ssrn.com/abstract=2722054 (providing “evidence of a

stunning and unacceptable level of randomly distributed justice at the trial court level” in bankruptcy

proceedings); see also Post, “Random Justice” https://www.washingtonpost.com/news/volokh-

conspiracy/wp/2016/02/10/random-justice/.


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1. Content-neutrality and intermediate scrutiny

In First Amendment litigation, of course, a great deal depends on formal

categorization and determining the “level of scrutiny” that courts will apply to the

challenged government action.40

In the SORNA cases referenced above, all courts(except one, a district court opinion later vacated on other grounds41) have declined to

give the identifier disclosure provisions the highest level of First Amendment scrutiny.

Because the disclosure provisions are deemed “content-neutral” – i.e., because all

Internet identifiers must be disclosed irrespective of the content of the speech to which

those identifiers might attach - they are examined under a lesser, more generous

“intermediate” standard, akin to that applied to “time, place, and manner” speech

restrictions: The government need only show that the restrictions are “narrowly

tailored” to serve the government’s “legitimate, content-neutral interests”; that they do

not “burden substantially more speech than necessary” to further those interests, though

they need not be “the least speech-restrictive means” available for advancing the

government’s interests; and that they “leave open ample alternative channels of

communication.”42

40

As my Con Law I professor, John Kramer, aptly put it many years ago, a great deal of constitutional litigationturns entirely on the question of whether the government is required to demonstrate a reason, a good reason, or a

damned good reason, for doing whatever it was that it was doing.

Reed v. Town of Gilbert , 1135 S.Ct. 2218 (2015) may have altered this rather formal approach to First Amendment

questions, but we will not know that for some time. See _____.

41Doe v. Shurtleff , 2008 WL 4427594 (D. Utah 2008), order vacated , 2009 WL 2601458 (D. Utah 2009), aff’d , 2010

WL 4188248 (10th Cir. 2010), opinion amended and superseded on reh’g, 628 F.3d 1217 (10th Cir. 2010), cert.

denied , 131 S. Ct. 1617 (2011) and aff’d , 628 F.3d 1217 (10th Cir. 2010).

42See, e.g., Doe v. Nebraska, 898 F. Supp. 2d 1086, ___ n. 7 (D. Neb. 2012) (because the disclosure requirement

applied “regardless of content or viewpoint,” they “should be deemed content-neutral” and subject to

intermediate scrutiny, under which “it is immaterial that the government’s interest might be adequately served by

some less-restrictive alternative,” (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)); Doe v. Harris, 772

F.3d 563 (9th Cir. 2014) (concluding that CA disclosure requirement is "content neutral” because "[o]n its face, the

Act makes no reference to specific subject matters or viewpoints [and] does not prohibit registered sex offenders

from using particular websites, or any particular types of communication,” but instead ”broadly applies to all

identifiers that a registrant uses for online communication, regardless of whether he uses the identifier to chat,

post product reviews, or ask questions about a credit card bill”; “in that respect, the law may be broad, but at least

it is content neutral”); Doe v. Marion County (Indiana disclosure requirement is "content neutral because it

restricts speech without reference to the expression’s content," and therefore "must satisfy a variant of


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The three foundational Supreme Court cases establishing a First Amendment

right to anonymous communication – Talley, McIntyre, and Watchtower Bible – were

somewhat opaque on the level-of-scrutiny question. The three cases do clearly establish

that “the freedom of speech” protected by the First Amendment includes a right tospeak without revealing one’s name (to local authorities, or to the public at large).43 If, ,

therefore, the government requires individuals to reveal their identities as a condition

intermediate scrutiny"); Doe v. Snyder (same); Doe v. Shurtleff , 628 F.3d 1217 (10th Cir. 2010) (disclosure

requirement content-neutral because it "says nothing about the ideas or opinions that Mr. Doe may or may not

express, anonymously or otherwise" and is not "aimed at 'suppress[ing] the expression of unpopular views,' Giani,

199 F.3d at 1247, but rather it is directed towards aiding the police in solving crimes," and subject to intermediate

scrutiny); White v. Baker , 696 F. Supp. 2d 1289 (N.D. Ga. 2010) (holding that GA disclosure requirement was

content-neutral because it "'place[s] no restriction on -- and clearly do[es] not prohibit -- either a particular

viewpoint or any subject matter that may be discussed,' quoting Hill v. Colorado, 530 U.S. 703, 723 (2000), andtherefore subject to intermediate scrutiny); Harris v. State (same).

43 The cases also contained ringing and eloquent words about the values of anonymous speech:

“It is offensive -- not only to the values protected by the First Amendment, but to the very notion

of a free society -- that in the context of everyday public discourse a citizen must first inform the

government of her desire to speak to her neighbors and then obtain a permit to do so. Even if

the issuance of permits by the mayor's office is a ministerial task that is performed promptly and

at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a

dramatic departure from our national heritage and constitutional tradition.”

Watchtower Bible, 536 U.S. at 165-66.

“If the exercise of the rights of free speech and free assembly cannot be made a crime, we do

not think this can be accomplished by the device of requiring previous registration as a condition

for exercising them and making such a condition the foundation for restraining in advance their

exercise and for imposing a penalty for violating such a restraining order. So long as no more is

involved than exercise of the rights of free speech and free assembly, it is immune to such a

restriction. . . . We think a requirement that one must register before he undertakes to make a

public speech to enlist support for a lawful movement is quite incompatible with the

requirements of the First Amendment.

Id. at ___.

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but

an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the

majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1,

3--4. It 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. The right to remain anonymous may be abused when it

shields fraudulent conduct. But . . . in general, our society accords greater weight to the value of

free speech than to the dangers of its misuse. See Abrams v. United States, 250 U.S. 616, 630--

631, 63 L. Ed. 1173, 40 S. Ct. 17 (1919) (Holmes, J., dissenting).

McIntyre, 514 U.S. at ___.


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of being allowed to speak, it must demonstrate some greater degree of “tailoring” of

means to ends than is ordinarily required, a more substantial nexus between the

interference and the governmental interest being pursued than, ordinarily, it must

show.44

In all three cases, the Court held that the disclosure requirement in question was

not sufficiently narrowly tailored to the government’s stated interest.45 But it was not

44 See Talley , 362 U.S. at ___ (“There can be no doubt that such an identification requirement would tend to

restrict freedom to distribute information and thereby freedom of expression”); McIntyre, 514 U.S. at ___

(rejecting the “reasonableness” test applied by the Ohio Supreme Court:

The “ordinary litigation” test does not apply here. [The challenged statute] is a regulation of pure

speech. Moreover, even though this provision applies evenhandedly to advocates of differing

viewpoints, it is a direct regulation of the content of speech. . . . Our precedents thus make

abundantly clear that the Ohio Supreme Court applied a significantly more lenient standard than

is appropriate in a case of this kind.

45

“Here the State says that this ordinance is aimed at the prevention of ‘fraud, deceit, false

advertising, negligent use of words, obscenity, and libel,’ in that it will aid in the detection of

those responsible for spreading material of that character. But the ordinance is not so limited,

and I think it will not do for the State simply to say that the circulation of all anonymous handbills

must be suppressed in order to identify the distributors of those that may be of an obnoxious

character . In the absence of a more substantial showing as to Los Angeles' actual experience with

the distribution of obnoxious handbills, such a generality is for me too remote to furnish a

constitutionally acceptable justification for the deterrent effect on free speech which this all-

embracing ordinance is likely to have.” (emphasis added)

Talley , 362 U.S. at ___ (Harlan, J. concurring).

“As this case demonstrates, the prohibition encompasses documents that are not even arguably

false or misleading. It applies not only to the activities of candidates and their organized

supporters, but also to individuals acting independently and using only their own modest

resources. It applies not only to elections of public officers, but also to ballot issues that present

neither a substantial risk of libel nor any potential appearance of corrupt advantage. It applies

not only to leaflets distributed on the eve of an election, when the opportunity for reply is

limited, but also to those distributed months in advance. It applies no matter what the character

or strength of the author's interest in anonymity. Moreover, as this case also demonstrates, the

absence of the author's name on a document does not necessarily protect either that person or a

distributor of a forbidden document from being held responsible for compliance with the

Election Code. Nor has the State explained why it can more easily enforce the direct bans on

disseminating false documents against anonymous authors and distributors than against

wrongdoers who might use false names and addresses in an attempt to avoid detection. We

recognize that a State's enforcement interest might justify a more limited identification

requirement, but Ohio has shown scant cause for inhibiting the leafletting at issue here.”


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clear precisely how much more substantial that nexus needs to be to pass constitutional

muster, and the level of scrutiny that should be applied when the right to speak

anonymously has been abridged.46 This left something of a doctrinal vacuum, and the

lower courts are now filling it – ill-advisedly, in our view – with the kind of ad hocbalancing that “intermediate scrutiny” entails.

There is, to begin with, a logical fallacy: Because “content-based” speech

discriminations get strict scrutiny, “not-content-based” speech discriminations must get

“not-strict scrutiny.” That does not follow, and leads to absurd results if taken at face

value. A law requiring, say, a pre-publication license for all newspapers that publish

“Ohio has not shown that its interest in preventing the misuse of anonymous election-related

speech justifies a prohibition of all uses of that speech.”

McIntyre, 514 U.S.at ___.

“[A] requirement that one must register before he undertakes to make a public speech to enlist

support for a lawful movement is quite incompatible with the requirements of the First

Amendment. . . . The mere fact that the ordinance covers so much speech raises constitutional

concerns. . . . The ordinance may preclude [petition-circulators seeking signatures in face-to-face

interactions] from canvassing for unpopular causes. Such preclusion may well be justified in

some situations -- for example, by the special state interest in protecting the integrity of a ballot-

initiative process, see ibid ., or by the interest in preventing fraudulent commercial transactions.

The Village ordinance, however, sweeps more broadly , covering unpopular causes unrelated to

commercial transactions or to any special interest in protecting the electoral process.”

Watchtower Bible, 536 U.S. at ___.

46Talley was decided before the Court had formalized the analysis into different tiers of scrutiny; McIntyre applies

a form of “exacting scrutiny” to the Ohio statute in question, but appears to do so because the anonymity

restriction was coupled with a content-based discrimination aimed specifically at political speech:

The Ohio regulation also involved a “content-based restriction on political speech . . . [T]he

category of covered documents is defined by their content -- only those publications containing

speech designed to influence the voters in an election need bear the required markings. . . .

[Ohio] cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech,

based on its content, with no necessary relationship to the danger sought to be prevented.”

McIntyre, 535 U.S. at ___

And in Watchtower Bible, although the parties “adamantly dispute[d]” the question of “what standard of review

[the Court] ought to use in assessing the constitutionality” of the Village of Stratton ordinance under review, the

Court declared it “unnecessary . . . to resolve that dispute . . . because the breadth of speech affected by the

ordinance and the nature of the regulation make it clear that the Court of Appeals erred in upholding it.”

[The majority opinions in the latter two cases were both authored by Justice Stevens, whose opposition to the

formalization of the First Amendment inquiry is well-known]


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information about the activities of labor unions, or about electoral politics, would

receive the strictest scrutiny; but that hardly implies that a (content-neutral) law

requiring all newspapers – necessarily including those that publish information about

labor unions or electoral politics – to obtain a pre-publication license should get lessexacting scrutiny. What sense does that make?47

The SORNA requirements may indeed be content-neutral, but that hardly

justifies giving them some lesser scrutiny; it would surely be an odd rule that would

give a higher degree of scrutiny on registration requirements covering a subset of speech

- e.g., only political speech, per McIntyre, or only commercial speech - than on those that

sweep more broadly to cover all speech (neutrally).48

The distinction between content-based and content-neutral speech restrictions is,

without question, a vital one for protecting speech against government censorship;

when a restriction “raises the specter that the Government may effectively drive certain

ideas or viewpoints from the marketplace” it must “pass the most demanding

constitutional test . . . to ensure that the government has not regulated speech ‘based on

hostility—or favoritism—towards the underlying message expressed’.”49 “Governments

must not be allowed to choose which issues are worth discussing or debating.’”50

But the claim that the SORNA registration requirements are constitutionally

objectionable does not rest on the notion that the government has violated its obligation

to remain content- (and viewpoint-) neutral, unlawfully favoring some content over

47 This idea is often traced back to Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 643 (1994), where the Court said:

“As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the

basis of the ideas or views expressed are content based. By contrast, laws that confer benefits or impose

burdens on speech without reference to the ideas or views expressed are in most instances content

neutral.” (citations omitted)).

While that may be true “as a general rule,” it appears, in the SORNA cases, to have ossified into a hard-and-fast

requirement.48

As noted above, the McIntyre Court gave the Ohio statute in question the most exacting scrutiny because it was

deemed content-based: But the Court said nothing to suggest that had it not been content-based – had it covered,

for instance, all handbills as opposed to just those involved in election campaigns – it would have received a lesser

degree of scrutiny. This is, however, how the lower courts have been reading the constitutional requirements.49

Reed, 135 S.Ct at ___ (quoting R. A. V ., 505 U. S., at 387, and Simon & Schuster, Inc. v. Members of N. Y. State

Crime Victims Bd., 502 U. S. 105 (1991)).50

Police Dep’t of Chicago v. Mosley , 408 U.S. 92, 96 (1972)).


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others and censoring disfavored messages; it rests on the notion that they are

objectionable because they eliminate the independent right to speak about any subject

anonymously, free of the fear of government surveillance.

Why should the right to speak anonymously be given this kind of second-classstatus within the freedom of speech? Much of the variation in outcome in the SORNA

cases is due to the idiosyncratic judicial balancing of means and ends that “intermediate

scrutiny” invites; because the government need not show that the requirements are the

“least speech-restrictive means of advancing the government’s interests,” some courts

have required the government to show virtually nothing in the way of “tailoring” of

means to ends beyond some plausible (though unsubstantiated with any actual

evidence) increase in investigative efficiency down the line. 51

2. Speaker discrimination

Because the constitutional flaw in the SORNA disclosure requirements is not

governmental discrimination among different messages or among different viewpoints,

51 Here, for instance, is the entirety of the court’s analysis of the “tailoring” of the SORNA registration

requirements in Doe v. Snyder , 101 F.Supp.3d 672, ___ (ED Mich. 2015):

Plaintiffs contend that SORA’s Internet provisions are not narrowly tailored because “they do nothingbeyond what is accomplished by existing laws to protect minors from sexual crime” and note that “those

[minor solicitation] laws did a much better job at narrowly targeting the behavior the state wanted to

curtail” than SORA does.

However, SORA does go beyond the existing laws and provides further protection of minors from sexual

crimes in two ways. First, whereas [Michigan’s child solicitation law] prohibits the online solicitation of

minors, SORA’s Internet provisions create a database of online identities of persons convicted of sex

offenses which makes easier the investigation of crimes in which a minor (or adult) has been contacted

through an online alias. Second, as the Department of Justice’s Office of Sex Offender Sentencing,

Monitoring, Apprehending, Registering, and Tracking (“SMART”) aptly suggests, “knowledge that their

Internet identifiers are known to the authorities may deter registered sex offenders from engaging in

criminal behavior on the Internet .”

Plaintiffs note that law enforcement has yet to use the Sex Offender Registration database to search for

registrants’ Internet information to solve a crime. But this in no way affects whether SORA is narrowly

tailored to achieve the state’s significant and compelling interest in protecting minors.

This amounts to very little more than an assertion – plausible, perhaps, but unsubstantiated with any actual

evidence - that the registration provisions might, possibly, assist in the investigation and prosecution of future

crimes.


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the content-neutrality vel non of the SORNA identifier disclosure provisions is a red

herring, irrelevant to the constitutional analysis.

There is, however, an alternate route that courts can and should take to give

identity disclosure restrictions the scrutiny they warrant, one that more accuratelyreflects the actual constitutional flaw in these schemes: the SORNA disclosure rules

discriminate among different speakers, some of whom are permitted to exercise the First

Amendment right to speak anonymously while others are not. This speaker

discrimination constitutes an infringement of the First Amendment prohibition against

abridging the freedom of speech warranting the most exacting judicial scrutiny.

That the First Amendment offers any protection at all against “speaker-based”

discrimination has – perhaps surprisingly – not always been clear.52 But in its recentdecision in Citizens United v. FCC, 558 U.S. 310 (2010), the Supreme Court, in Prof.

Michael Kagan’s words, “for the first time gave full-throated articulation to the

principle that discrimination on the basis of the identity of the speaker is offensive to

the First Amendment, even when there is no content discrimination,” a “new pillar of

free speech law [that] has the potential to reshape free speech law far beyond the

corporate and election contexts.”53

The Court in Citizens United appears to have removed whatever ambiguity had

surrounded identity-based speech restrictions, stating emphatically that speaker

discrimination - independent of any content-based discrimination among messages or

viewpoints, and independent of any discrimination that might offend under the Equal

Protection Clause - is prohibited by the First Amendment, and receives the highest level

of judicial scrutiny:

52 See Michael Kagan’s discussion of the “speaker identity gap” in pre-Citizens United First Amendment

jurisprudence, in “Speaker Discrimination: The Next Frontier of Free Speech,” 42 Fla. State Univ. L. Rev. 765 (2015),

available at http://scholars.law.unlv.edu/facpub/901.

53Id . Citizens United is, of course, controversial for its holding that restrictions on corporate speech trigger strict

First Amendment scrutiny. But as Prof. Kagan points out, “for this question to have been relevant, the Court first

had to conclude that discrimination based on speaker identity is a free speech problem sufficient to trigger

heightened scrutiny . [T]he Court had not previously said this clearly, and in limited public forum cases like Perry

and Cornelius, it had actually said the opposite. . . .”


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“Premised on mistrust of governmental power, the First Amendment standsagainst attempts to disfavor certain subjects or viewpoints. Prohibited, too, arerestrictions distinguishing among different speakers, allowing speech by some but notothers. As instruments to censor, these categories are interrelated: Speechrestrictions based on the identity of the speaker are all too often simply a means

to control content. Quite apart from the purpose or effect of regulating content,moreover, the Government may commit a constitutional wrong when by law it identifiescertain preferred speakers. By taking the right to speak from some and giving it toothers, the Government deprives the disadvantaged person or class of the rightto use speech to strive to establish worth, standing, and respect for the speaker'svoice. The Government may not by these means deprive the public of the rightand privilege to determine for itself what speech and speakers are worthy ofconsideration. The First Amendment protects speech and speaker, and the ideas that flow from each.

Citizens United, 558 U.S. 310, ___ (emphasis added) (internal citations omitted)

The SORNA cases present an opportunity to clarify and strengthen the contours

of this prohibition against speaker discrimination. When the government, as here,

singles out a class of persons to deprive of a right protected by the First Amendment, it

should be required to support that decision with more than the recitation of some

possible, plausible law enforcement benefits that might, in the future, flow from such

action. The purpose of the SORNA disclosure requirements is to facilitate the

investigation of (and, possibly, to deter) future criminal activity by members of the

covered population; but a statistical likelihood that some members of that population

may engage in such activity should not be sufficient – even if it were supported by

actual evidence put forward by the government54 – to withhold a constitutional right

from the entire class.

54 The law enforcement rationale for the SORNA identity disclosure requirement rests on the underlying notion

that individuals in the covered category (“sex offenders”) are more likely to be engaged in criminal activity in the

future. The data on sex offender recidivism are highly complex, and have been greatly exaggerated in the past.

See Ira Ellmann, 'Frightening and High': The Supreme Court’s Crucial Mistake About Sex Crime Statistics,

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2616429; Tamara Lave, ‘Inevitable Recidivism: The Origin

and Centrality of an Urban Legend,” 34 Int. J. Law and Psychiatry 186 (2011); Amanda Agan, “Sex Offender

Registries: Fear Without Function?,” 54 J. Law and Econ. 207 (2011). As summarized by the Massachusetts

Supreme Judicial court in a recent case:

[S]tudies have indicated that relatively few sex offenders reoffend. See, e.g., Hanson, Harris, Helmus, &

Thornton, High-Risk Offenders May Not Be High Risk Forever, 29 J. Interpersonal Violence 2792, 2796


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3. Public disclosure and the nature of anonymity

The courts appear to be rather deeply confused about the nature and value of

anonymous speech, as evidenced by the consensus that appears to be developing in the

SORNA cases that the right to speak “anonymously” means only a right to speakwithout revealing your identity to the public at large; it is not infringed or abridged, in

other words, by measures requiring you to reveal your identity to the police, provided

that there are protections in place to guard against disclosures by the police to the

public at large.

The PA court, in Coppolino, summarized the reasoning behind the disparate

outcomes in the SORNA identity disclosure cases this way: “[C]onsidering these cases

together, the determining factor is whether a given statute permits or makes likelydisclosure of a registrant's Internet identifiers to the public.” Because “none of the

avenues of dissemination of registry information applicable under [PA law] involve

public disclosure of registrants' Internet identifiers . . . the requirement that registrants

disclose their Internet identifiers does not burden the right to anonymous speech.”55

(2014) (finding 11.9 per cent over-all rate of sexual recidivism, although high-risk offenders reoffend more

frequently than low-risk offenders). Other reports have shown that, contrary to popular belief, the rates

of recidivism for sex offenders are actually lower than the rates of recidivism for those convicted of othercrimes. See, e.g., Council of State Governments, Sex Offender Management Policy in the States,

Strengthening Policy & Practice: Final Report 2 (2010).

Doe v. Sex Offender Registry Board , __ MA __ (2015).

55Coppolino, 102 A.3d at 1282-4 (emphasis added). This theme is repeated in many of the SORNA cases referenced

above. See, e.g., Doe v Snyder (SORNA challenges turn on “who would have access to the reported information”;

because Michigan statute “neither prohibits registrants from engaging in any particular speech on the Internet, nor

does it unmask registrants’ anonymity to the public,” it did not unconstitutionally abridge the right to speak

anonymously; though the statute “does unveil registrants’ anonymity to law enforcement, this does not, by itself,

infringe upon Plaintiffs’ First Amendment rights”) (emphasis added); Doe v Shurtleff , 628 F.3d 1217, ___ (Utah

statute does not “permit[ ] the unrestricted disclosure of information to the general public” but only “sharing only

among law-enforcement agencies, not the public at large, and only for the recited law-enforcement purposes”;

“although this narrow interpretation may still result in the disclosure of Mr. Doe’s online identifiers to state

officials, such identification will not unnecessarily interfere with his First Amendment freedom to speak

anonymously”); White v. Baker ( holding that “the mere reporting of this information alone" - "email addresses,

usernames and user passwords" - "is not speech. It does not constitute content and these items are simply the

vehicles by which communication can occur on the internet. . . . The mere delivery of this information to the sheriff

does not inhibit speech, is not a free speech gateway requirement, and does not implicate the First Amendment.

The First Amendment is, however, implicated when this disclosure requirement is coupled with [statutory provisions

regarding disclosure]”; because the statutory provision in question permitted identifier information to be disclosed


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The idea that your right to communicate anonymously is not abridged if you

only have to reveal your identity to law enforcement officials, as long as those officials

don’t reveal it to the public at large (on, say, a publicly-accessible web site56), is, we

think, deeply misguided. The notion that you have a protected right to be anonymousin the eyes of your neighbors, but not in the eyes of the police, reflects a crabbed and

cramped view of why the First Amendment protects the right to speak anonymously in

the first place. If it becomes the dominant doctrinal position – and the SORNA cases are,

unfortunately, heading in precisely that direction – it will seriously weaken the “right”

to communicate anonymously, and the First Amendment’s ability to serve as protection

against pervasive governmental surveillance, just when we need it most.

* * * * * * * * *

In the SORNA cases, the courts are constructing a framework for the analysis of

the constitutionality of identity disclosure laws that has the potential to vitiate entirely

the right to anonymous electronic communication. Three pillars of this framework are

especially troubling: (a) the decision to give these laws less than the most exacting First

to “government agencies conducting confidential background checks” and to the public if “necessary to protect

the public concerning sexual offenders,” the right of anonymity was implicated: “[B]ecause of the possibility of

disclosure and broad use of Plaintiff’s internet identifying information, Plaintiff legitimately asserts the regulation

chills his protected free speech rights”) (emphasis added); Doe v. Raemisch, 895 F. Supp. 2d 897 (E.D. Wis. 2012)(statutory requirement that registrants disclose “”all email accounts, Internet username and addresses, and

identifiers for any email account, website, or Internet address the offender creates, uses, or maintains for

personal, family, or household use” does not violate right to speak anonymously because the information “is not

placed on a registry accessible to the public”); Doe v Harris (holding that CA statute “chills anonymous speech

because it too freely allows law enforcement to disclose sex offenders’ Internet identifying information to the

public” by allowing “any designated law enforcement entity [to] provide information to the public about a person

required to register as a sex offender . . . when necessary to ensure the public safety,” a condition “much too

broad . . . to serve as an effective constraint on law enforcement decisions that may infringe First Amendment

rights”) (emphases supplied throughout); Doe v. Harris, 2013 WL 144048 (N.D. Cal. 2013) (while The Act’s stated

purposes to combat crimes of human trafficking and sexual exploitation were undisputedly legitimate government

interests, and the challenged provisions could conceivably advance those purposes, because “registrants had no

guarantee that their pseudonyms would be safeguarded from public dissemination, their right to speak

anonymously would be chilled”).

56 As noted above, see text at note [19], the federal SORNA statute exempts the “Internet identifiers” from

mandatory disclosure on each State’s publicly-accessible SORNA registry website; however, SORNA “does not limit

jurisdictions’ retention and use of sex offenders’ Internet identifier information for purposes other than public

disclosure, including submission of the information to the national (non-public) databases of sex offender

information, sharing of the information with law enforcement and supervision agencies, and sharing of the

information with registration authorities in other jurisdictions,” or to “disclose Internet identifier information to

any one by means other than public Web site posting.”


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Amendment scrutiny, (b) a feeble “tailoring” analysis that deems it sufficient if the

government shows merely that there is some plausible, statistical likelihood that future

criminal investigations will be more effective if the anonymity restrictions are in place,

and (c) the decision to narrow the scope of the right to anonymous communication sothat it does not cover anonymity vis-a-vis law enforcement authorities.

It is, as the Supreme Court has noted, “more than historical accident”57 that

much current First Amendment doctrine was crafted in response to governmental

efforts to impose speech restraints on an unpopular minority that often found itself in

society's crosshairs: Jehovah's Witnesses, who have long been deeply unpopular for

their unorthodox religious views, their conscientious objection during wartime, and

their habit of house-to-house proselytizing. Sex offenders are as stigmatized and

unpopular a minority group as any in the country at present, and we suggest that, like

the Jehovah's Witnesses, the fight for their constitutional rights will have a deep impact

on the future development of First Amendment doctrine, for better or for worse.

57Watchtower Bible, 535 U.S. 150, 160 (2002).

sex offenders, anonymous internet speech, and the constitution

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