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COA: requiring internet identifiers of sex offender registrants doesn’t violate First Amendment

State v. James L. Jackson, 2020 WI App 4; case activity (including briefs)

Jackson pleaded to the crime of failing to give updated information to the sex offender registry. The information at issue was the fact that he’d created a Facebook account and email address. This ran afoul of Wis. Stat. § 301.45(2)(a)6m., which requires a registrant to turn over (among other things) the “name or number of every electronic mail account the person uses” and “the name and Internet address of every public or private Internet profile the person creates, uses, or maintains.” On appeal, he argues that this provision unconstitutionally burdens his right to engage in anonymous speech.

He raises his challenge in two ways: as-applied and as a facial overbreadth claim. The fact of his plea creates a problem for the as-applied challenge: the circuit court held it waived. Jackson argues that Class v. United States, 138 S. Ct. 798 (2018), calls the guilty-plea waiver rule into question here. In Class the Supreme Court identified a class of constitutional claims that challenge not a particular procedure, but “the very power of the state to prosecute the defendant”; it held that these claims are not waived by a guilty plea. The court of appeals distinguishes Class by saying it’s not clear whether the defendant there was raising a facial or as-applied challenge; in fact it’s perfectly clear. But, at any rate, the court declines to decide Jackson’s as-applied claim.

The overbreadth challenge, though, as a species of facial challenge, isn’t waived by a plea, so the court addresses it. Lots of courts from other jurisdictions have addressed the constitutionality of registry requirements pertaining to the use of the internet, and the decision discusses several. The statutes at issue in these cases vary widely and so, correspondingly, do the decisions.

Broadly speaking, statutory features that have proved important to these decisions have included the amount of information that must be turned over; the timeliness or frequency with which it must be given; and whether and how this information may be shared with the public. Wisconsin’s statute requires turning over “public and private internet profile[s]” which plainly sweeps very broadly: think Amazon.com, nytimes.com, or Chase.com accounts. Or, as Jackson argued, online identifiers that correspond to membership in political or other organizations. On frequency, the state requires that this information be updated within 10 days. The court of appeals thinks these requirements, though broad, are not so broad as to be unconstitutional, particularly because the information is “not subject to unrestricted public disclosure.” (¶¶27-28).

This last point requires the court to completely rewrite the statute. The opinion says § 301.46(2)(e) permits law enforcement agencies to disclose the information

“if, in the opinion of the department or the police chief or sheriff, providing the information is necessary to protect the public,” to “members of the general public” who submit a request for information “concerning a specific person.”

(¶28). This isn’t what the statute says. The clause permitting release to “members of the general public” is set off grammatically by an “or” from the requirement that there be a request, and is in a totally different section from the provision about requests “concerning a specific person.” Under the statute’s plain terms, law enforcement has complete discretion to release the information where they’re of the “opinion” that it’s “necessary to protect the public.” But if, as expected, the court’s opinion is published, its creative rejiggering will become the law, no matter what the statute’s text may say.

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