FESC: Sex offenders and anonymous speech

David Post & Annemarie Bridy         Sex Offenders, Anonymous Internet Speech, and the
Constitution 
Discussant: Jonathan Hafetz: Anonymity doctrine v. federal/state
sex offender notification acts, which impose identity disclosure requirements
on sex offenders. Over 800,000 people, a quarter of whom were juveniles at the
time of conviction. Have to register w/local law enforcement and reveal all
internet identifiers. Failure to disclose is a felony.
 
Current challenges: it’s not clear what level of scrutiny is
required. What narrow tailoring means is also highlighted by these cases. Where
the gov’t singles out a class of persons to be deprived of a 1A right, the gov’t
should have to show more than some statistical likelihood that anonymity will
hamper future investigations.  Also not
clear about how many safeguards are needed against disclosure to the public.  How concerned should we be about spillover
from these restrictions to other types of speech?
 
Bridy: One possibility: 
If we’re just disclosing info to the police, no harm no foul. Interested
in structural surveillance; potential for this caselaw bleeding out into an
attitude which normalizes structural surveillance. We might behave better if
the police are watching us—keep these folks from reoffending. They’re so
marginalized that people have little sympathy; doctrine will get warped if
applied to a group considered distasteful.
 
Post: prisoners/foreign nationals have lesser/no 1A rights.
If the courts just came out and said these were a lesser class of people, that
might be terrible for those people and doctrinally wrong, but at least it would
cabin the damage for the rest of us. The courts do not say this.  They say that these people have served their
time and many are no longer on probation/parole and have same 1A rights as the
rest of us. That makes the doctrine more worrisome b/c this is the same 1A I
have to rely on if I have to disclose my internet identifiers.  Courts that have looked at these challenges
have said in one way or another: yes you have a right to speak anonymously, but
that doesn’t mean you have a right to speak anonymously as to the police.  That’s stunning!  Courts worry about publicizing the info, as
if the right is only anonymity as to the community and not to the gov’t.  If that becomes 1A doctrine, there’s not much
less of the right to be anonymous.
 
Bridy: courts that worry about disclosure say they can
construe it narrowly: police can only use this info for a specific
investigation. Who knows whether that construction makes its way out to the law
enforcement officers themselves.
 
Post: crushing set of disabilities across the board: due
process, ex post facto, cruel & unusual punishment, etc. There is a social
justice aspect to this, and we want people to see that.  Can your right to speak anonymously be taken
away because you’re a member of a group that, we assume, is statistically more
likely to commit a crime in the future?
 
Q: Qualified privilege, not right: courts are more willing
to engage in balancing tests with anonymity than with other clearer
rights.  Registration requirements: a
prior restraint!  Distinction b/t
disclosure to gov’t and disclosure to public is ridiculous! Where the confusion
may be happening is over the retaliation language in lots of cases—the chill
happens even without punishment.  Scalia
wanted retaliation to be a requirement, but that’s rejected by Macintyre: you don’t have to show that
persecution will result, you just have to show you were compelled to disclose
your name.  Doe v. Reed public records law case does say you need to show some
initial risk of retaliation to win a facial challenge; that’s limited to the
electoral context though.
 
Bridy: Empirical work on recidivism/collateral effects; some
literature indicates that for juvenile sex offenders required to register, they
had a greater rate of rearrest and nonprosecution for things.  Authors think there’s a surveillance effect:
police look more closely at them and more likely to rearrest on thinner
evidence.  So that’s some evidence of
retaliation.
 
Q: pamphleting registration cases, anti-mask law cases—state
doesn’t get to do that even if the speaker hasn’t shown risk of
retaliation/harassment outside the electoral context.
 
Post: cases are split in terms of upholding—but even the
ones that struck them down indicated that public v. police disclosure line is
important for that.
 
Lyrissa Lidsky: fighting a myth that these offenders are
uniquely likely to reoffend.
 
Post: there seems to be a small category of offenders
w/significant risk of recidivism.  Then it
goes to the overinclusiveness of it. 
Likely harm as putting the gov’t to its proof; courts just say the risk of recidivism is very high.
The SCt has said so, based on an SG brief that cited a Psychology Today article that cited no actual research.  Now other courts just cite that SCt case.
 
Bridy: often the harm is articulated as solicitation of
minors online; tons of those required to register weren’t convicted of crimes
relating to minors, and many of those who were weren’t convicted of crimes
relating to  minors w/any online
component.  And identifiers are required
to be registered for almost anything, including ecommerce sites where you can
ask a seller a question.
 
Q: doctrine seems solidly on your side assuming you can
answer the question about harm.  Devil’s
advocate: if people revisit Watchtower Bible, which said no registration w/the
town can be required, should we adhere to that in all cases? Arguments about
traceable anonymity: you don’t want someone who might do harm to block
surveillance—CALEA.  One thing that might
be going on is that courts might say: it’s ok if you get information that
allows tracing should tracing be required, and put it in a lockbox until it’s
needed. Maybe courts are convincing themselves that such a lockbox exists or
that what’s in place in police departments is sufficient to protect the info.
Even if the risk of future harm is low enough, it’s safe enough that most of us
will feel fine surfing the web—if you’ve got nothing to hide, you’ve got
nothing to fear.
 
Q: indeed, most forms of anonymity online are very
traceable.
 
RT: What’s the law if any about public employees required to
disclose as condition of employment? What’s the interaction w/national security
law where there’s basically nothing stopping the gov’t from surveilling right
now, it turns out?  (I’m in the middle of
reading Charlie Savage’s Power Wars.)
Good-behavior rationale as concession of chilling effect?
 
Post: subject to criminal penalties if you don’t disclose =
unique versus the rest of us. Most rearrests of offenders are for failure to
disclose.  In terms of deterrence: the
deterrence is supposed to be of conduct. [But it has to be deterrence of doing
things like ever interacting with a minor, right? The idea of the chilling
effect is that people steer far wider of the prohibited zone.  But perhaps the thought is that nothing is
lost if the sex offender can’t interact on social websites where minors might
be.]
 
Q: surveillance in minority neighborhoods: more surveillance
leads to more police encounters leads to more requirements to report leads to more
failures to report leads to more “criminality.” Which reinforces the legitimacy
of stripping away rights from that population. 
Locate your story against a backdrop of what institutionalized
surveillance does in terms of self-fulfilling prophecies.
 
Bridy: also connects to questions about uses of big data.
 
Abrams: there’s no general right of anonymity.  Libel: you can cut through anonymity.  You should deal with that more in the
paper.  Separate class treatment: aren’t
you conceding, by not objecting to the whole registration requirement absent
the internet disclosures, that they are special classes? That is, you’re not
contesting that they have to register address, license plate, etc.?
 
Post: courts at least pay lip service to the idea that they
aren’t in a special category for 1A purposes, but then treating sex offenders
as if they are in fact a special category.

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