Posted October 20, 2016 2:23 PM
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Sex offender internet law constitutional

Charles E. Freeman
Charles E. Freeman
By Andrew Maloney
Law Bulletin staff writer

SPRINGFIELD — The state’s highest court has upheld a law that requires sex offenders to disclose information about their internet identities and websites.

In a unanimous decision authored by Justice Charles E. Freeman, the Illinois Supreme Court held that a provision of the Sex Offender Registration Act survived First Amendment scrutiny because it bolsters the government’s interest in protecting the public without restricting more speech than necessary.

In an 18-page opinion issued this morning, the court critiqued a handful of federal district courts who have found similar statutes unconstitutional and wrote that although sex offender laws can have “a lasting and painful effect” on those they regulate, those consequences stem from the convictions rather than forced disclosure of their personal information.

The case began when a McLean County man who was adjudicated a sex offender as a juvenile failed to tell police about updates to his Facebook page in August 2014.

Mark Minnis was indicted for failing to register as a sex offender under Section 3(a) of the Sex Offender Registration Act when he did not include the page in registration forms and police found he had changed his cover photo on the social networking site.

He challenged the law as unconstitutionally overbroad and vague in May 2015, and 11th Judicial Circuit Judge Robert Freitag agreed it was overbroad under the U.S. Constitution’s First Amendment, both on its face and as-applied.

The law, amended in 2007, specifically requires sex offenders to report and update their internet identities and websites, which are described as “all e-mail addresses, instant messaging identities, chat room identities and other [i]nternet communications identities that the sex offender uses or plans to use, all Uniform Resource Locators (URLs) registered or used by the sex offender, all blogs and other [i]nternet sites maintained by the sex offender or to which the sex offender has uploaded any content or posted any messages or information.”

The state argued, among other things, that the law mostly requires offenders to notify police of web activity that occurred during the previous registration period. Because of that, it was too speculative to say that their ability to speak freely and anonymously online going forward was affected.

But the justices disagreed, writing that even though it didn’t force offenders to reveal information as a precondition to speaking, they might still be wary of retaliation. Thus, the law could possibly have a chilling effect on speech and is correctly subject to a First Amendment analysis.

However, the court wrote that the law should not be subject to strict scrutiny — the hardest legal threshold for a law to clear — because it does not regulate the content of sex offenders’ speech.

Instead, it should be subjected to intermediate scrutiny.

The defendant admitted in his arguments there is no direct ban on any type of speech, but argued that “if the hostility of the public against scarlet-letter-tagged sex offenders who speak on the internet drives the speakers away, into silence, the effect is the same: The outcome looks like a ban.”

The high court disagreed, writing that the “humiliation” suffered by such offenders is a side effect rather than the purpose of the law.

“Although the public availability of the website information may have a lasting and painful impact on sex offenders, these consequences flow not from the statutory registration and notification scheme but from the fact of conviction, which is already a matter of public record,” Freeman wrote.

Finally, to survive intermediate scrutiny, a law must serve or advance a substantial state interest and must not burden substantially more speech than necessary, the court noted.

The defendant argued that the law applied to too many people and too much speech, but the court again noted that the law does not have to be the “least-restrictive” means of advancing its interest, as it would be under strict scrutiny, and that the law did not burden more speech than necessary.

“In the case at bar, we conclude that the [i]nternet disclosure provision advances the substantial government interest of preventing sex offenses against children and protecting the public from the danger of recidivist sex offenders,” Freeman wrote.

“The disclosure provision identifies the locations on the [i]nternet to which the sex offender has transferred expressive material from his computer or has otherwise engaged in communication. These disclosures empower the public, if it wishes, to make the informed decision to avoid such interactions. The information required for the public to protect itself is broad because any communication by a sex offender with the public is related to the statutory purpose.”

The court cited federal cases from Nebraska, California and North Dakota in which courts struck down similar statutes, finding that publicly accessible sites such as blogs and forums didn’t “reasonably” pose threats from sex offenders.

But the justices wrote that “these courts failed to recognize the breadth necessary to protect the public” or engage in the appropriate analysis of the issue.

The Attorney General’s Office represented the state in the case. A spokeswoman for the office said the state’s lawyers are “pleased that the court upheld this statute as constitutional and found that it advances the goal of preventing sex offenses against children.”

Daaron V. Kimmel, an assistant appellate defender who represented Minnis, said he was disappointed by the decision but noted that the high court could not rule on the defendant’s “as-applied” challenge because the trial court held no evidentiary hearing and made no findings of fact. Thus, it only ruled on the constitutionality of the law on its face.

“The way they phrased that to me seems to leave the door open to further development of that issue on remand,” Kimmel said. “So to me that means something. That’s helpful.”

Kimmel also said his side may try to file a cert petition with the U.S. Supreme Court. He said he still feels the law creates an “unfair burden” on sex offenders.

“You don’t know exactly what you have to disclose or not, and so if you’re going to guess one way or the other to protect yourself, you have to disclose everything. Whether it’s posting on a blog, or uploading a profile picture to your Facebook account,” he said.

Rebecca Glenberg, a staff attorney for the Illinois American Civil Liberties Union, which filed a friend-of-the-court brief in the case, made a similar point.

“The statute covers virtually any type of online speech, the vast majority of which has no relationship with the interest of preventing recidivism on the internet,” she said.

The case is People v. Mark Minnis, No. 119563.

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