Utah sex offenders have lost another battle with the courts. Last month, the 10th Circuit Court of Appeals reversed a decision by the Utah District Court. The original Utah ruling at issue held that forcing sex offenders in Utah to register their “internet identifiers” with the state did not violate the U.S. Constitution. Opponents of the 10th Circuit’s decision argue that the ruling undermines previous U.S. Supreme Court’s holdings regarding free speech protection as it relates to online activity.
Facts Of The Case
An individual (John Doe) was convicted of a sexual offense involving a minor and was sentenced to 18 months in prison. After his release, Doe was required (under Utah law) to register as a sex offender with the Utah Department of Corrections as well as provide “internet identifiers” (such as email addresses, chat, instant messenger, and social networking names) he utilizes when communicating online. Doe was also required to submit all passwords he uses when logging onto sites that utilized these online ID’s. However, he refused to supply these names and addresses and subsequently brought suit alleging these requirements violated his constitutional rights. In particular, he claims the law violated his First Amendment right to free, anonymous speech.
The district court agreed stating that simply “because Mr. Doe is a sex offender, he has not forfeited his First Amendment rights, including his right to anonymous online speech.”
The 10th Circuit Court of Appeals reviewed the case and overturned the district court’s decision. The Appeals Court concluded that the Utah sex offender law requiring the appellant to submit his online identifications did not infringe on his First Amendment right to free, anonymous speech.
First Amendment Free Speech Protection
Under prior First Amendment decisions, the Supreme Court has held that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.”
The Supreme Court reasoned that the purpose behind the First Amendment is to “protect unpopular individuals from retaliation-and their ideas from suppression-at the hand of an intolerant society.” Further, the Court said that the ruled applies to publications made via the internet.
Fundamental Liberty Violations Require Strict Scrutiny Analysis
If a court of governmental entity wishes to pass a law or act violating a fundamental right (such as the right to free, anonymous speech under the First Amendment) the government must pass the strict scrutiny test. To pass this test, a court must determine that a compelling governmental interest exists in passing the law and also that the law is narrowly tailored.
Because of the fundamental liberties involved, the strict scrutiny test is, in most cases, difficult for a governmental body to overcome. In this case, some argue, even more so because of previous U.S. Supreme Court rulings protecting speech as it relates to internet activity.
However, the 10th Circuit disagreed by overturning the lower court’s decision. For now, the Utah law requiring sex offenders register online ID’s to authorities remains constitutional.