Convicted sex offenders, Jehovah’s Witnesses, and the First Amendment
Comments 16 By David Post November 19
Beginning in the 1930s, shortly after the Supreme Court had “incorporated” the First Amendment into the due process clause (thereby making it an enforceable constraint not only on the federal government ["Congress shall make no law . . ."] but on State and municipal governments as well) the Jehovah’s Witnesses went on a campaign to attack, in court, restrictions on their ability to proselytize door-to-door and to give voice to unpopular views. During one particular 8 year period (1938 to 1946) they brought no fewer than 23 separate First Amendment actions to the Supreme Court (prompting Justice Stone to quip that they “ought to have an endowment in view of the aid they give in solving the legal problems of civil liberties”). They won some spectacularly important victories – West Virginia Board of Ed. v Barnette (1943) (children cannot be forced to recite the Pledge of Allegiance or salute the flag), Chaplinsky v New Hampshire (19420 (establishing the “fighting words” doctrine, and overturning conviction of a Jehovah’s Witness who called a local official a “damned racketeer” and a “fascist”), Watchtower Society v. Village of Stratton (2002) (overturning municipal ordinance requiring government permits for all door-to-door advocacy).***
They were widely reviled – especially during World War II and the Korean War, their position as conscientious objectors to military service and their refusal to salute the flag made them the object of great hostility – but in retrospect, we all owe them a great debt of gratitude. It took (and it takes) real courage to stand up to the combined forces of public opinion and the state to voice opinions that others find highly objectionable and even inflammatory, and we all enjoy, in a much stronger First Amendment than we might otherwise have, the benefits of their having had the courage to have done so.
Yesterday the 9th Circuit issued its decision striking down California’s CASE (Californians Against Sexual Exploitation) Act as violative of the First Amendment. The Act required previously-convicted sex offenders to provide “[a] list of any and all Internet identifiers established or used,” a “list of any and all Internet service providers used,” and to send written notice to law enforcement within 24 hours of adding or changing an Internet identifier or an account with an Internet service provider; it also provided for fairly severe criminal penalties for non-compliance.
This is the latest in what is becoming a large series of cases involving First Amendment challenges to state sex offender registration statutes. There have been cases like this one in Nebraska, Indiana, Louisiana, Pennsylvania, to name a few. I’ve blogged about some of them before – e.g., here and here – and (full disclosure) I’ve been involved in several of them (including this California case) as an expert testifying on behalf of the challengers.
The court’s opinion here – at least to someone on the side of the fence that I’m on – has a terrific analysis of the First Amendment issues at stake, and some strong First-Amendment-protective language that will, I promise you, come in very, very handy in future battles – the ones that are coming that will not involve just convicted sex offenders. The court struck down the statute on the grounds that it “unnecessarily chills protected speech” in three ways: the” Act does not make clear what it is that sex offenders are required to report, there are insufficient safeguards preventing the public release of the information sex offenders do report, and the 24-hour reporting requirement is onerous and overbroad.” There is, in particular, some very forceful language about the right, under the First Amendment, to speak anonymously – an issue that, as I keep harping on, is going to be a major First Amendment battleground during the the next decade or so. The court wrote:
Although this is not what some might call the classic anonymous-speech case, where speakers allege they are required to disclose their identities directly to their audience, we conclude that the Act nevertheless chills anonymous speech because it too freely allows law enforcement to disclose sex offenders’ Internet identifying information to the public. . . . We agree with the district court that the standards for releasing Internet identifying information to the public are inadequate to constrain the discretion of law enforcement agencies and that, as a result, registered sex offenders are unnecessarily deterred from engaging in anonymous online speech.
[S]ex offenders’ fear of disclosure in and of itself chills their speech. If their identity is exposed, their speech, even on topics of public importance, could subject them to harassment, retaliation, and intimidation. See McIntyre, 514 U.S. at 341–42 (“The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.”); Brown v. Socialist Workers ’74 Campaign Comm. (Ohio), 459 U.S. 87, 100 (1982) (holding that disclosure requirements may subject unpopular minority groups to “threats, harassment, and reprisals”). Anonymity may also be important to sex offenders engaged in protected speech because it “provides a way for a writer who may be personally unpopular to ensure that readers will not prejudge her message simply because they do not like its proponent.”
Pretty strong stuff. It has made me think about the Jehovah’s Witnesses. Convicted sex offenders are probably one of a very small number of groups that are even more despised than the Jehovah’s Witnesses were in the Thirties and Forties, and they have consequently been singled out for very harsh treatment in the law. Fighting back, they’re helping to make some good First Amendment precedent, and when the government starts cracking down on other speech by other speakers, or attempting to restrict our ability to use anonymizing tools in our Internet communications – as it will – we’ll be grateful to them for having done so.
***Shawn Peters’ excellent “Judging Jehovah’s Witnessess” tells this story in great detail, if you’re interested.
David Post taught intellectual property and Internet law at Georgetown Law Center and Temple University Law School until his recent retirement. He is the author of "In Search of Jeffersons Moose: Notes on the State of Cyberspace" (Oxford, 2009), a Fellow at the Center for Democracy and Technology, and an Adjunct Scholar at the Cato Institute.
COMMENTS
MichaelATX
12:06 PM CST
It's deeply disturbing to read about Jehovah's Witnesses demanding and gaining legal rights which they, in turn, would never dream of offering within their own ranks.
The additional irony is that the doctrinal rules of Jehovah's Witnesses have protected pedophiles within their ranks here in the United States and around the world. To witness the legal precedents they established being used in this way is surreal....more
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SGF
10:14 AM CST
Jehovah's Witnesses are complete hypocrites. They fight for their rights, but stifle the rights of anyone who disagrees with them - it's called shunning and should be outlawed as the barbaric treatment it is. I personally know 6 people who committed suicide while being shunned and heard of another just yesterday. And don't get me going on the rights of pedophiles. They lost those rights when they violated the rights of innocent children who are now scarred for life....more
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Mike Pence
6:38 AM CST [Edited]
David Post missed something major here. The Witnesses themselves have huge child sex abuse problems in their ranks. Go Google it, or take it from this father of children who were abused by a congregation Elder. They handle reports of abuse internally by committee and then apply the Mosaic Law adjunct that any crime is to be dismissed unless there are two witnesses (which almost never happens in hidden crimes like this). When the matter is dismissed, they threaten the accusers with disfellowshipping -- shunning and losing their families -- if another words is said of it. I could introduce you to many hundreds of people who had this very nightmare play out in their family.
So they are not so much for freedom of speech when it comes to hiding sexual abuse against children. And they will send the very elders and other congregation members who have been accused of abuse -- including recent converts who were found guilty of molestation in a court of law but now have 'repented' -- they will send them to come knock on your door to fulfill their self-appointed duty to spread their beliefs.
The respect the first amendment to market their religion. They don't respect the safety of the general public, children in their midst, or the sanctity of the family in the face of punitive shunning.
That is the story and it is a huge error on Mr. Post's part to have missed it....more
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Teranceofathens SGF and Mike Pence3
Svete
4:31 AM CST
Firstly everyone seems to have forgotten that there are victims involved many of whom are children. Surely a crime as reprehensible as sexually abusing children disqualifies that individual from some freedoms or civil rights (i.e. their freedom), particularly those that they may have used in order to arrange a situation in which they can commit these crimes. Not saying they should lose their human rights, but we must surely be protecting other innocent people or children from a perpetrator repeating this crime and thus must trump the rights of the perpetrator every time.
Secondly the Jehovah's Witnesses do not have the moral free speech in this regard. The writer is oblivious (and its not his fault as the JW's do not publically publicise this) to their complete and blatant disregard for the exact same freedoms within their religious cult, that they champion and win in the courts.
For example people that just disagree with their teachings, or people that decide to leave because they research the JW teachings and conclude through evidence, facts and history that it is wholly incorrect, and anybody who voices their disagreement has their UN human rights violated by being shunned, having their family life interfered with, and their right to change their religion. They are in complete and violation of the UN Declaration of human rights charter articles 12 and 18
So while yes its great they have won these landmark legal cases and that has produced benefits for everyone when similar cases arise, it is reprehensible to deny those same freedoms to their own members, and whilst they do this then it totally invalidates the good that they do do....more
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Teranceofathens and SGF2
Dan_Simon
11/19/2014 10:07 PM CST
I'm disappointed that nobody took a stab at my question below: does a Jehovah's Witness have a First Amendment right--local laws notwithstanding--to go up to the door of an abortion clinic and proselytize for his religious beliefs (which of course include strong condemnation of abortion)? If so, what makes him different from other anti-abortion protesters, including religiously motivated ones? And if not, what makes the door of an abortion clinic different from the door of a private citizen's home? ...more
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anonymous JW
11/19/2014 9:57 PM CST
"It took (and it takes) real courage to stand up to the combined forces of public opinion and the state to voice opinions that others find highly objectionable and even inflammatory,"
Despite all the liberties Jehovah's Witnesses fought for 'in the world', if a member does the same inside the religion, for example objecting to their child sex abuse rules, that 'freedom of speech' is tossed and the member is immediately shunned....more
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MichaelATX Teranceofathens and SGF3
AZJH
11/19/2014 3:43 PM CST [Edited]
"Convicted sex offenders are probably one of a very small number of groups that are even more despised than the Jehovah’s Witnesses..." Likening JWs to sex offenders is abhorrent. By presenting this information in such a distasteful (and lazy) manner the author comes off more as a salesman than authority. Bad form Mr. Post....more
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billposer
11/19/2014 9:48 PM CST
Mr. Post is not asserting anything about the relationship, in h is own mind, between JWs and sex offenders, which is what you accuse him of. Rather, he is making an assertion about public perception of the relationship between JWs and sex offenders, an entirely different matter. Not bad form at all....more
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bja009 Teranceofathens and SGF3
Dan_Simon
11/19/2014 11:07 AM CST
Constitutional question of the day: what happens if our intrepid proselytizing Jehovah's Witness decides to knock on the door of an abortion clinic? Does anyone survive the resulting tear in the fabric of Constitutional space-time?
As for the second issue, presumably the state legislature can simply mandate life terms for the sex offenses in question, and make compliance with all of these tracking requirements a condition of parole. Right?...more
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Krychek_2
11/19/2014 11:33 AM CST
I think your second question is actually a close call. I don't think parole officials could require parolees to convert to Islam or to donate half their wages to the Republican party, so even parolees have some constitutional rights. But in this case, there is a link, albeit tenuous, between the purpose of parole and restricting sex offenders from places where they might be able to talk to children, so I suspect it would probably stand.
...more
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SpaceLawGuy
11/19/2014 1:45 PM CST
"But in this case, there is a link, albeit tenuous, between the purpose of parole and restricting sex offenders from places where they might be able to talk to children, so I suspect it would probably stand."
There's a real problem with regulating the Internet as a "place" in the context of restricting the activities of sex offenders.
In the physical world, it's easy to tell sex offenders to stay away from "places where they might be able to talk to children," but that phrase describes nearly every conceivable part of the Internet.
You or I or all the commenters on this article could be children and no one would be the wiser. ...more
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Rossami1
Krychek_2
11/19/2014 2:25 PM CST
Space Law, I think you're probably right, which then raises the question of whether the state could require as a condition of parole that sex offenders stay off the Internet altogether. I've heard of cases in which that's a condition of pretrial bail, but I don't know if that's ever been made a condition of someone's parole. And if it were, would it be constitutional?...more
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IrritableGourmet
11/19/2014 2:33 PM CST
SpaceLawGuy,
The problem is that they're not restricting the sex offenders from using social media, they're just requiring that the sex offender let the government know about and review anything they do there, even after probation/parole, and potentially let the government disseminate the same to anyone who asks. And if they don't agree to all that, they get charged with a felony. But, it's not an ex-post-facto law because it's simply a "civil" restriction....that carries prison time....more
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IrritableGourmet
11/19/2014 10:45 AM CST
Here in upstate NY there have been a number of arrests recently for failure to register social media accounts. I can only hope one of them uses this defense.
Relying on the government to stop sex offenders from contacting your children through social media is like leaving your front door open and relying on the government to prevent people from taking your stuff....more
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IrritableGourmet Rossami BackinIndy and acre004
Dan_Simon
11/19/2014 12:38 PM CST
As a matter of fact, a friend of mine used to live in a small town in upstate New York, and he told me that people there routinely left their front doors unlocked, and would even park their bikes unlocked outside the local movie theater.
Another friend used to live in a bad area of a large city, and his family made the mistake of neglecting to put bars on one small, difficult-to-reach window of their residence--until several break-ins forced them to correct that error.
Now, I don't know how much of the difference between these two cases was a matter of effective law enforcement, as opposed to social or cultural factors. But the experience of the last few decades demonstrates quite clearly that effective law enforcement can reduce crime rates, which in turn affect the kinds of measures that individuals must take to protect themselves and their property. Thus weakening law enforcement on the grounds that people shouldn't be relying on law enforcement to deter serious crime is a recipe for...well, lots of things, none of them good.
bja009 Teranceofathens and SGF