OAKLAND, Calif. (CN) – An attorney asked a federal judge on Wednesday to halt the implementation of the International Megan’s Law bill, which requires sex offenders to be identified as such on their passports.
Under the International Megan’s Law to Prevent Demand for Child Sex Trafficking (IML), passports issued to registered sex offenders whose crimes involved minors will contain an identifying mark. The form of the mark has not yet been decided.
The law also requires the Department of Homeland Security and the Justice Department to notify foreign governments when registered sex offenders are visiting their countries, and those departments will also receive notifications when sex offenders come to the United States from abroad.
Attorney Janice Bellucci, president of the civil rights group California Reform Sex Offender Laws, filed the lawsuit on behalf of the anonymous plaintiffs days after the bill was signed by President Barack Obama. The lawsuit compares the required mark to a “scarlet letter.”
At Wednesday’s hearing, Bellucci asked U.S. District Chief Judge Phyllis Hamilton to grant a preliminary injunction that would “maintain the status quo” of the pre-IML system for keeping track of sex offenders.
“We would like the court to grant an injunction to stop additional authorities from going into effect and put all this on hold to figure out what the IML actually means,” she said.
Bellucci argued that the passport identifier is unconstitutional on First Amendment grounds.
While a passport constitutes government speech, the identifying mark would constitute compelled speech, she said.
“If the government limited that identifier to people who’ve been convicted of child-sex trafficking or tourism, we’d be okay with that,” Bellucci said.
“But just because somebody is on a sex-offender registry does not indicate that they’re likely to engage in trafficking or tourism.”
She pointed out that people who engage in child-sex trafficking “have a financial motive, not a sexual motive.”
Judge Hamilton contended that one could not make that argument with regard to child-sex tourism, since “that’s people going to other countries for the purpose of having sex with minors.”
Bellucci agreed, but added that applying the passport identifier as the IML currently mandates would constitute “scooping all these people in the same net.”
She added, “People that pose the most danger aren’t going to be caught in this net. You’re going to catch too many people.”
Hamilton asked how people besides border authorities would understand the passport mark’s significance.
“There’s going to be a lot of publicity about this,” Bellucci said. “If you think this passport provision is going to protect somebody, you need to make sure everybody knows what it means.
“It doesn’t make any difference what they put on a passport. It could be a happy face, it could be a swastika – it’s just the meaning of it.”
Bellucci also noted that California’s sex-offender registry is a lifetime registry, while other states’ registries automatically release offenders after a certain period of years if they do not commit more offenses.
“There’s no requirement in the law that the government looks to see if they have any subsequent offense,” she said. “The government is making an assumption that is contrary to empirical evidence.”
Kathryn Wyer, who argued for the government, said that there is no evidence to overturn the law on a facially unconstitutional basis.
“No one is required to publicly display their passport,” Wyer said. “There’s no case where a court has found a First Amendment interest implicated in factual information on government identification.”
Hamilton did not indicate how or when she expects to rule.
Bellucci’s office is in Marina Del Rey, California. Wyer is with the Justice Department.
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