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Injunction Hearing on Offender Disclosure Law

SAN FRANCISCO (CN) - Registered sex offenders have the same free-speech rights as everyone else, and this leaves criminal speech vulnerable, lawmakers told a federal judge.

California Deputy Attorney General Robert Wilson appeared in the Northern District of California on Monday to defend Proposition 35, also called the Californians Against Sexual Exploitation Act.

A provision of the anti-human-trafficking law, which California voters approved overwhelmingly in November, requires sex offenders to give police a complete list of their user names, screen names, email addresses and Internet service providers.

After two sex offenders challenged the law - with help from the American Civil Liberties Union, the Electronic Frontier Foundation and California Reform Sex Offender Laws - U.S. District Judge Thelton Henderson quickly entered a stay.

Arguing against an injunction at a nearly two-hour hearing on Monday, Deputy Attorney General Wilson told the court that "solicitation to commit a crime is not protected under the First Amendment."

Wilson insisted that criminal speech is different. "You cannot anonymously get on the Internet and solicit a crime and expect First Amendment protections," he said.

ACLU attorney Michael Risher countered that the new law is unworkable, creating so many burdens on the free speech of registrants that they effectively lose their First Amendment rights.

"There are too many questions about the definition of an Internet service provider for this court to use the tools it is authorized to use to resolve them," Risher said. "This statute is overbroad and unconstitutionally vague."

Confusion about the law and the fear of prosecution will cause a chilling effect on the free speech rights of registrants, who may be unclear about what types of "Internet identifiers" they must report, Risher added.

Since the police and public often treat registered sex offenders as pariahs, they may seek anonymity to engage in political speech, he said.

The First Amendment protects the right to express views anonymously, and anonymity is a cornerstone of free political speech, but anonymous speech is impossible under the new law, Risher said.

Because juries are not sympathetic to registered sex offenders, a registrant is likely to "self-censor" his speech on the Internet, "rather than risk the perils of trial," the lawyer added.

Successful prosecution under the law requires the state to prove a "knowing" violation of the statute, but Risher said this burden is "cold comfort to anyone who might be caught up in this law."

"The risks of prosecution are simply too great," Risher said.

There is no precedent for taking free-speech rights from those who have been convicted and met the terms of their sentence, he added, saying the U.S.

Supreme Court has drawn the line at obscenities.

"If we could strip people who have been convicted of a crime of their First Amendment rights.we would lose an important viewpoint if the government can restrict those people from speaking," Risher said.

Wilson, the deputy attorney general, countered that registrants could avoid prosecution by simply asking for guidance from a law-enforcement officer first.

"This is an unusual situation in which the registrant works hand in hand with law enforcement to fill this form out," Wilson explained.

The police will not publish identifier information, and registrants will not get in trouble if they communicate with the police, Wilson told the court.

He added that application of the law, as written, will use the collected data only to fight crime based on specific suspicions.

But the ACLU says is naive to rely on police discretion.

"The statute makes clear that surveillance is a permissible purpose," Risher said.

He added that the law also allows the government to publicly disseminate the information gathered.

Even without public disclosure, the risk of official retaliation alone creates the right to anonymous speech, Risher said, citing U.S. Supreme Court precedent.

Judge Henderson asked Risher how the statute would open up a registrant to more retaliation than he faces by simply registering.

Risher answered that "the statute adds the ability to retaliate based on protected speech, and that's the difference."

He noted that how the Supreme Court held in Citizens United that the First Amendment protects the rights of corporations and unions to donate unlimited amounts of money to political campaigns.

The ruling also showed that the First Amendment "does not allow laws that discriminate [against a class of person]," Risher said.

This means that laws that "discriminate among speakers are just as bad as those that discriminate based on content," he added.

"How would we feel about a law that says the government or police can read our ballots that we cast in elections?" Risher asked. "This law is far too broad and sweeps in far too many people."

But the deputy attorney general insisted that the state would not monitor a registrant's speech in the absence of a criminal investigation.

A police officer would need "specific and articulable facts" if he wanted to conduct surveillance on a registered Internet identifier, Wilson said.

For a registrant's private email communications, the police would still need a warrant, court order or subpoena to see the content, Wilson said.

Because Prop. 35 targets crimes involving children and kidnapping, police would need to suspect a crime to use a registrant's identifier to view content on a public website like Facebook, Wilson added.

He also said that California already audits police officers' inquiry into criminal databases, keeping their queries in check and creating a record for officers who abuse the system.

Judge Henderson said he would decide on the injunction shortly.

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