The First Amendment prohibits perpetual surveillance

Doe v. Harris, Nos. 13-15263 & 13-15267 (9th Cir. Nov. 18, 2014). 

As this case shows, the First Amendment forbids telescreens—even for sex offenders.

California requires registered sex offenders to provide all of their “Internet identifiers” and “Internet service providers” to the state. (I take “Internet identifiers” to refer to user names and the like.) Plus, they have to notify law enforcement within 24 hours of adding or changing their identifiers or service providers. A class of registered sex offenders asserts that this law violates the First Amendment because it burdens their right to communicate online. The Ninth Circuit agrees.

The law, the court acknowledges, is “content-neutral.” It doesn’t single out certain topics or viewpoints for regulation, so under Supreme Court precedent the law isn’t scrutinized as skeptically as it would be if it, say, singled out sex offenders’ online communications about children. The law applies to everything.

But largely because the law is so broad, it doesn’t pass muster even under a less demanding legal standard. Its boundaries are unclear, so it chills speech. By requiring sex offenders to identify their user names, it burdens their ability to engage in anonymous online speech—and anonymous speech is protected by the First Amendment. Plus, the law requires sex offenders to notify law enforcement—by mail—within only 24 hours of adding or changing online identifiers or service providers. This requirement, says the Ninth Circuit, is “not only psychologically chilling, but physically inconvenient.”

Because the California law offends the First Amendment, the Ninth Circuit affirms the district court’s decision to enter a preliminary injunction against it.