California Voters Think of The Children, Not So Much Of Free Speech Or Common Sense
If you got busted for streaking 20 years ago in college, should you have to notify the police if you comment at Popehat? If you had sex with your just-shy-of-sixteen-years-old girlfriend when you were seventeen, should you have to notify the police if you open a Twitter account?
Apparently the voters of California think so.
My fellow Californians gave a huge victory to Proposition 35, the cynically pitched "Human Trafficking" proposition. Along with increasing the penalties for various "human trafficking" crimes — more on that in a minute — the proposition requires registered sex offenders to disclose the following information when they register:
(4)A list of any and all Internet identifiers established or used by the person.
(5) A list of any and all Internet service providers used by the person.
In addition, it requires them to update that registration:
If any person who is required to register pursuant to the Act adds or changes his or her account with an Internet service provider or adds or changes an Internet identifier, the person shall send written notice of the addition or change to the law enforcement agency or agencies with which he or she is currently registered within 24 hours. The law enforcement agency or agencies shall make this information available to the Department of Justice. Each person to whom this subdivision applies at the time this subdivision becomes effective shall immediately provide the information required by this subdivision.
Read literally, if you're a registered sex offender, and you want to leave a comment on Popehat under the name "Bob,' or open a Twitter account, or leave a comment on the site of a newspaper or network, you've got to report the name you use to the police, in writing, within 24 hours. This means, among other things, that registered sex offenders can't comment anonymously on the internet — in, for instance, a discussion of whether sex offender laws are just.
There are First Amendment problems with that requirement right out of the gate. They are compounded by the fact that sex offender laws — the processes by which we put people on sex offender registries, and keep them there — are, in a word, perverted. They sweep up not just rapists and child molesters, but boyfriends and girlfriends convicted of statutory rape and people convicted of minor crimes questionably classified as sex crimes. There's no appetite to change how the system works, because the incantation Think of the Children! drowns out all rational thought in our culture. This is especially true when we engage in lazy categorical thinking about sex offenders.
Fortunately some people are fighting back. Yesterday the American Civil Liberties Union and the Electronic Frontier Foundation filed suit to block the portion of the law requiring registered sex offenders to report their internet providers and online handles. The litigants are registered sex offenders whose offenses had nothing to do with the internet. A federal judge issued an injunction blocking the online-disclosure portions of the law yesterday. You can imagine how that's going to be portrayed in the media.
I applaud the EFF and ACLU for pursuing this.
But it's only the First Amendment angle, and the raw idiocy of making all sex offenders report every online handle, that will get this lawsuit any support. The rest of the proposition won't get any real scrutiny. There are questions to be asked: were existing sentences too short? Will increasing sentences for these crimes really reduce crime or protect anyone? Does the proposition really address a need, or does it just add more laws onto a situation already addressed by existing criminal laws? Will the broad power of the proposition be used in a principled manner to attack real traffickers, or could it be abused and used against people who more closely resemble victims themselves?
We don't ask those questions in America. If someone says "let's add this law to criminalize this bad thing," we say "hell yes!" uncritically. When someone says "let's toughen sentences on these bad people," we say "yeah! the bastards!" And when anyone invokes "for the children" — well, nothing above our brain stems are in the mix at all. The most rabidly anti-government among us clamor for more criminal laws, longer sentences, more government power, more discretion for police and prosecutors.
That's not how a free people should act.
Edited to add: In the comments, Ed Borg suggests that the two scenarios in my parade-of-horribles opening paragraph are inapt because those particular offenses would not require registration under California law. That's the peril of starting with a rhetorical flourish. But the point made in the linked Jacob Sullum article — that registration law is unprincipled and perverse — remains, as does the core First Amendment issue.
Last 5 posts by Ken White
- Two Stories About The Criminal Justice System And Consequences - May 6th, 2015
- Unusually Stupid McClatchy Column Gets Free Speech Wrong - May 4th, 2015
- Prenda Law And The Terrible, Horrible, No Good, Very Bad Appellate Argument - May 4th, 2015
- Was Ebony Dickens' Facebook Post Criminal? - April 30th, 2015
- Cops: We Need Rights More Than You, Citizen - April 29th, 2015