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Doe v. Harris

United States Court of Appeals, Ninth Circuit

November 18, 2014

JOHN DOE; JACK ROE; CALIFORNIA REFORM SEX OFFENDER LAWS, on behalf of themselves and others similarly situated, Plaintiffs-Appellees,
KAMALA D. HARRIS, Attorney General of the State of California, Defendant-Appellant, and DAPHNE PHUNG; CHRIS KELLY, Intervenors-Appellants

Argued and Submitted, San Francisco, California: September 10, 2013.

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Appeal from the United States District Court for the Northern District of California. D.C. No. 3:12-cv-05713-TEH, D.C. No. 3:12-cv-05713-TEH. Thelton E. Henderson, Senior District Judge, Presiding.

Civil Rights

The panel affirmed the district court's order preliminarily enjoining provisions of the Californians Against Sexual Exploitation Act, which seeks, among other things, to supplement and modernize reporting obligations for registered sex offenders by requiring offenders to provide " [a] list of any and all Internet identifiers established or used by the person" and " [a] list of any and all Internet service providers used by the person." Cal. Penal Code § 290.015(a)(4)-(5).

The panel first agreed with the district court that registered sex offenders who have completed their terms of probation and parole enjoy the full protection of the First Amendment. The panel then held that because the Act imposes a substantial burden on sex offenders' ability to engage in legitimate online speech, and to do so anonymously, First Amendment scrutiny was warranted. Applying intermediate scrutiny, the panel concluded that the Act unnecessarily chills protected speech in at least three ways: (1) it does not make clear what sex offenders are required to report; (2) it provides insufficient safeguards preventing the public release of the information sex offenders do report; and (3) the 24-hour reporting requirement is onerous and overbroad. The panel concluded that appellees were likely to succeed on the merits of their First Amendment challenge and that the district court did not abuse its discretion in deciding that all the necessary elements for obtaining a preliminary injunction were satisfied.

Kamala D. Harris, Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Peter K. Southworth, Supervising Deputy Attorney General; Robert D. Wilson (argued), Deputy Attorney General, Office of the Attorney General of the State of California, Sacramento, California, for Defendant-Appellant.

James C. Harrison (argued), Margaret R. Prinzing, Remcho, Johansen & Purcell, LLP, San Leandro, California, for Intervenors-Appellants.

Michael T. Risher (argued), Linda Lye, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, California; Hanni Fakhoury, Lee Tien, Electronic Frontier Foundation, San Francisco, California, for Plaintiffs-Appellees.

Before: Mary M. Schroeder and Jay S. Bybee, Circuit Judges, and Robert J. Timlin, Senior District Judge.[*] Opinion by Judge Bybee.


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BYBEE, Circuit Judge:

California law has long required registered sex offenders to report identifying information, such as their address and current photograph, to law enforcement. Cal. Penal Code § § 290.012, 290.015. The Californians Against Sexual Exploitation (" CASE" ) Act sought to supplement and modernize these reporting obligations by requiring sex offenders to provide " [a] list of any and all Internet identifiers established

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or used by the person" and " [a] list of any and all Internet service providers used by the person." Id. § 290.0 15(a)(4)-(5). The Act also requires registered sex offenders 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 (" ISP" ). Id. § 290.014(b). Appellees Doe, Roe, and the nonprofit organization California Reform Sex Offender Laws filed a complaint alleging that the CASE Act infringes their freedom of speech in violation of the First Amendment. Appellees filed a motion for a preliminary injunction, which the district court granted. Kamala Harris, the Attorney General of California, and Intervenors, the proponents of the CASE Act, appeal. We hold that the district court did not abuse its discretion by enjoining the CASE Act. Accordingly, we affirm.


A. The CASE Act

" California has had some form of sex offender registration requirement since 1947." In re Alva, 33 Cal.4th 254, 14 Cal.Rptr.3d 811, 92 P.3d 311, 314 (Cal. 2004). Under current California law, " [e]very person . . . residing in California, or while attending school or working in California" who has been convicted of certain sexual crimes must register with the police or sheriff where he or she resides on an annual basis. Cal. Penal Code § § 290(b)-(c), 290.012(a). The registration law requires even more frequent updates of violent predators: " [E]very person who has ever been adjudicated a sexually violent predator . . . shall, after his or her release from custody, verify his or her address no less than once every 90 days . . . ." Id. § 290.012(b).

In 2012, California voters passed Proposition 35, known as the CASE Act, which added provisions to California's sex offender registration requirements related to Internet usage by persons subject to the Act. The new sections require covered persons to provide additional information, including " [a] list of any and all Internet identifiers established or used by the person" and " [a] list of any and all Internet service providers used by the person." Id. § 290.015(a)(4), (5). The Act also provides:

If any person who is required to register pursuant to the Act adds or changes his or her account with an Internet service provider or adds or changes an Internet identifier, the person shall send written notice of the addition or change to the law enforcement agency or agencies with which he or she is currently registered within 24 hours. The law enforcement agency or agencies shall make this information available to the Department of Justice.

Id. § 290.014(b) (emphasis added).[1] The CASE Act defines the term " Internet

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identifier" as " an electronic mail address, user name, screen name, or similar identifier used for the purpose of Internet forum discussions, Internet chat room discussions, instant messaging, social networking, or similar Internet communication." Id. § 290.024(b). The Act defines " Internet service provider" as " a business, organization, or other entity providing a computer and communications facility directly to consumers through which a person may obtain access to the Internet." Id. § 290.024(a).

B. The Proceedings

Appellees represent a class of registered sex offenders who regularly use the Internet to advocate anonymously on behalf of sex offenders and to comment on news articles, forums, and blogs. They filed suit on the day the CASE Act took effect, asserting that the CASE Act violates their First Amendment rights to freedom of speech and association and that the statutory provisions are void for vagueness in violation of the Fourteenth Amendment. Appellees successfully moved for a temporary restraining order. This temporary restraining order remained in effect until the district court ruled on Appellees' motion for a preliminary injunction. While the motion was pending, the official proponents of the CASE Act, Chris Kelly and Daphne Phung, intervened.

After briefing and a hearing, the district court granted Appellees' motion for a preliminary injunction in a thorough order. The district court concluded that the Act is content neutral, and so determined to review the Act under an intermediate level of scrutiny. Before beginning its intermediate scrutiny analysis, however, the district court first considered whether it could permissibly adopt a narrowing construction to clarify ambiguities in the CASE Act. The district court adopted two narrowing constructions, both of which were agreed upon by the parties. First, the district court construed the requirement that registrants provide " [a] list of any and all Internet service providers used by the person," id. § 290.015(a)(5), as requiring registrants to report only ISPs with which they have an open account at the time of registration, as opposed to ISPs with which the registrant does not have an account but that are nevertheless accessed by the registrant. Second, the district court limited the term " Internet identifier" to require registrants to report only identifiers they actually use to engage in " interactive communication" on a website, and not identifiers they use solely to purchase products or read content online.

Even with these narrowing constructions, however, the district court determined that the CASE Act is not narrowly tailored to serve the government's important interest in combating human trafficking and sexual exploitation because " the challenged provisions, when combined with the lack of protections on the information's disclosure and the serious penalty registrants face if they fail to comply with the reporting requirements, create too great a chilling effect to pass constitutional muster." The district court further concluded that loss of First Amendment freedoms is an irreparable injury and that " the balance of equities and the public interest weigh in favor of granting injunctive relief." Accordingly, the district court granted the motion for a preliminary injunction and enjoined the State " from implementing or enforcing California Penal Code sections 290.014(b) and 290.015(a)(4)-(6), as enacted by the CASE Act."

The State and Intervenors appealed.

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The standard for issuing a preliminary injunction is well established:

A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).

The application of this standard in First Amendment cases involves " an inherent tension: the moving party bears the burden of showing likely success on the merits--a high burden if the injunction changes the status quo before trial--and yet within that merits determination the government bears the burden of justifying its speech-restrictive law." Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th Cir. 2011). Accordingly, " in the First Amendment context, the moving party bears the initial burden of making a colorable claim that its First Amendment rights have been infringed, or are threatened with infringement, at which point the burden shifts to the government to justify the restriction." Id. at 1116.

We review a district court's decision to grant or deny a preliminary injunction for abuse of discretion. Id. at 1115. We review the district court's legal conclusions de novo, and the district court's findings of fact for clear error. Id. When reviewing under this standard, we will not reverse the district court's decision " simply because [we] would have arrived at a different result if ...

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