ACLU, EFF File Class Action Suit to Block Prop 35 Provisions

SAN FRANCISCO—Opponents of Proposition 35, the flawed human trafficking initiative that was approved by California voters last night by a wide margin, have already filed a class action suit to block implementation of provisions contained in the measure that allegedly violate the First Amendment rights of people on the state's sex offender list. The American Civil Liberties Union of Northern California and the Electronic Frontier Foundation filed the lawsuit Wednesday morning in U.S. District Court for the Northern District of California on behalf of "two individuals required to register as sex offenders and a non-profit organization, California Reform Sex Offender Laws—a group that believes that no sexual abuse is ever acceptable and that laws that paint all sex offenders with one broad brush are counter-productive." According to the complaint, "Plaintiff Doe is an unnamed individual who, according to the complaint, resides "in the City of Alameda, in Alameda County, California, who is required to register with Defendant City of Alameda under Penal Code 15 § 290 because he was convicted of two registerable offenses in 1986. Neither of them involved the Internet or a stranger. Doe has not been arrested or convicted of any crime since he was released from custody for those offenses in 1991. He is currently 75 years old." "Plaintiff Roe," the complaint continues, "is an individual who is required to register under Penal Code § 290 when he resided in California because of convictions that occurred before 1993. Neither of them involved the Internet or a stranger. Since his release from custody in the late 1990s he has never been arrested or convicted of any crime." "Plaintiff California Reform Sex Offender Laws ("California Reform")," it adds, "is a California tax-exempt corporation organized under 501 (c)(4) of the Internal Revenue Code" whose "mission is to protect the rights of those accused or convicted of sex crimes. ... California Reform has members who are registrants throughout the state." According to a press release issued Wednesday morning by the filing entities, the lawsuit was filed to "block implementation of unconstitutional provisions of Proposition 35." [emphasis added.] More specifically, the release adds, "Proposition 35 requires anyone who is a registered sex offender—even people with decades-old, low-level offenses like misdemeanor indecent exposure and people whose offenses were not related to the Internet—to turn over a list of all their Internet identifiers and service providers to law enforcement. While the law is written very unclearly, this likely includes email addresses, usernames and other identifiers used for online political discussion groups, book and restaurant review sites, forums about medical conditions, and newspaper or blog comments. Under the law, more than 73,000 Californians must immediately provide this information to law enforcement, and must report any new account or screen name within 24 hours of setting it up, even if the new screen name is their own real name. Violations can result in years in prison." The suit, which seeks declaratory and injunctive relief, argues that "Proposition 35's online speech regulations are overly broad and violate the First Amendment, both because they prohibit anonymous speech and because the reporting requirements burden all sorts of online speech, even when the speaker is using his own real name as a screen name." Michael Risher, a staff attorney at ACLU-NV, commented, "The ability to speak freely and even anonymously is crucial for free speech to remain free for all of us. Stopping human trafficking is a worthy goal, but this portion of Prop 35 won't get us there." The complaint can be read here.