U.S. Judge Set to Rule on Motion to Block California’s Prop 35
SAN FRANCISCO -- A federal judge said he will rule “as quickly as I can” on a motion for a preliminary injunction against a new California law that would require registered sex offenders to give local law enforcement a list of their ISPs and certain online user names. The American Civil Liberties Union (ACLU) and Electronic Frontier Foundation challenged the law, which voters approved as Proposition 35 on Election Day. U.S. District Judge Thelton Henderson oversaw a hearing Monday on that motion and another to allow the ballot measure sponsors to intervene on behalf of California. Henderson said he is inclined to grant the latter motion and took both matters under submission. The law has yet to take effect as the court weighs the injunction motion.
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The law is overly broad and puts unconstitutional restrictions on speech, ACLU attorney Michael Risher argued. It would put an unfair burden on registered sex offenders who would risk arrest and prosecution for neglecting to properly disclose all the online services they use, he said. And that burden might keep registrants from bothering to participate in online discussions at all, he said.
Risher cited the Supreme Court’s Citizens United decision as further support for the ACLU’s argument that the U.S. District Court must apply strict constitutional scrutiny to First Amendment questions where there’s a potential to restrict speech based on the identity of the speaker. “The court does not tolerate laws that discriminate among people” in restricting speech, he said. As the Supreme Court pointed out in that decision, restrictions on speakers are often used to restrict certain content, he said. “What better way to drive particular viewpoints out of a conversation than by restricting the people who have them from speaking?"
But James Harrison, an attorney for the would-be intervenor in the current case, argued that the challenge over Proposition 35 is closer to TBS v. FCC, which upheld broadcasters’ must-carry rights, and intermediate scrutiny should apply.
Arguing for the California Attorney General’s office, Robert Wilson said standard rules of evidence and law enforcement will still be in place under the new law to protect the rights of registrants. Law enforcement agencies will need to find evidence of a crime or intent to commit a crime before they can tap the database of registrants’ ISPs and online usernames, he said. He said there’s no risk the information could be released to the public, which should end the plaintiff’s First Amendment challenge to the law.