Doe v. Shurtleff , 628 F.3d 1217 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
October 26, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
JOHN DOE,
Plaintiff-Appellant,
v. No. 09-4162
MARK SHURTLEFF, Office of the
Attorney General for the State of
Utah, in his official capacity,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 08–CV–00064–TC)
Elizabeth G. Eager (Emmet J. Bondurant, II, and Nicole G. Iannarone with her on
the briefs), of Bondurant, Mixson & Elmore, LLP, Atlanta, GA, for Plaintiff-
Appellant.
Nancy L. Kemp, Assistant Utah Attorney General (Sharel S. Reber, Assistant
Utah Attorney General, and Mark L. Shurtleff, Utah Attorney General, with her
on the brief), Salt Lake City, UT, for Defendant-Appellee.
Before GORSUCH, McKAY, and CUDAHY *, Circuit Judges.
McKAY, Circuit Judge.
*
Honorable Richard D. Cudahy, Circuit Judge, United States Court of
Appeals for the Seventh Circuit, sitting by designation.
In this case John Doe, a registered sex offender living in the state of Utah,
appeals the district court’s decision to allow enforcement of a Utah statute
requiring all sex offenders living in Utah to register their “internet identifiers”
and the corresponding websites with the state. We now uphold that decision
based on our conclusion that the statute does not violate the First or Fourth
Amendments or the Ex-Post Facto Clause of the United States Constitution, made
applicable to Utah through the Fourteenth Amendment.
BACKGROUND
Appellant, proceeding anonymously as Mr. John Doe, was convicted by the
United States military court system of sex offenses involving a minor and
sentenced to eighteen months’ imprisonment. After serving thirteen months of
this sentence, Mr. Doe was released without being placed on probation or
supervised release. However, as a resident of Utah and a convicted sex offender,
Mr. Doe was still required to register with the Utah Department of Corrections,
pursuant to Utah Code Ann. § 77-27-21.5 (West 2008). Among its many
provisions, this registry law required Mr. Doe to provide all “Internet identifiers1
and the addresses [he] uses for routing or self-identification in Internet
1
The statute defined “online identifier” as “any electronic mail, chat,
instant messenger, social networking, or similar name used for Internet
communication.” Id. § 77-27-21.5(1)(j).
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communications or postings.” Id. § 77-27-21.5(14)(i). 2 The statute also required
that Mr. Doe provide “all online identifiers and passwords used to access”
websites where he was using an online identifier, with the exception of identifiers
used for employment or financial accounts. Id. § 77-27-21.5(12)(j) & (29).
Believing that these requirements violated his First and Fourth Amendment
rights as well as the Ex Post Facto Clause of the United States Constitution, Mr.
Doe refused to provide the requested information and brought a lawsuit
challenging the law. Upon Mr. Doe’s motion for summary judgment, the district
court invalidated the statute based on its conclusion that the statute, which
provided “no restrictions on how the [State] c[ould] use or disseminate
registrants’ internet information,” improperly infringed on Mr. Doe’s First
Amendment right to anonymous speech. (Appellant’s App. at 208.) Shortly after
this ruling, the Utah legislature amended the statute. First, the legislature
removed any requirement that offenders disclose their passwords, and second, it
placed some limits on how a state official can use identifiers provided by an
offender. Specifically, the statute now 3 provides that
2
This provision is now located in subsection (14)(i), pursuant to changes in
the statutory structure made shortly after the district court’s ruling.
3
In addition to the amendment made shortly after the district court’s ruling,
the Utah legislature has made several more recent changes to section 77-27-21.5,
including changes that went into effect after the parties had filed their briefs.
Accordingly, we here cite to Utah’s current code, and not to the statute as it
existed at the time the parties submitted their arguments.
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The [state], to assist in investigating kidnapping and sex-related
crimes, and in apprehending offenders, shall:
(a) develop and operate a system to collect, analyze, maintain, and
disseminate information on offenders and sex and kidnap offenses;
(b) make information listed in Subsection (27) available to the
public; and
(c) share information provided by an offender under this section
that may not be made available to the public under Subsection (27),
but only:
(i) for the purposes under this Subsection (2); or
(ii) in accordance with [the Government Records
Access and Management Act].
Utah Code Ann. § 77-27-21.5(2) (West Supp. 2010). Additionally, the legislature
amended Utah’s Government Records Access and Management Act, or GRAMA,
to designate certain information provided by an offender, including internet
identifiers, as private. 4 See Utah Code Ann. § 63G-2-302(1)(m) (West Supp.
2010).
Following these amendments, the State filed a motion for the district court
to vacate its earlier order pursuant to Rule 60(b) of the Federal Rules of Civil
Procedure. After considering the briefs, the district court granted the motion,
holding that the new restrictions “diminished” the chilling effect on Doe’s speech
so that his First Amendment right to anonymous speech was no longer
4
Information designated as “private” by GRAMA may only be disclosed in
limited circumstances such as when requested by the subject of the record, or
pursuant to a court order or legislative subpoena. See Utah Code Ann. §§ 63G-2-
201(5) (West Supp. 2010); id. § 63G-2-202. Additionally, the statute permits
information sharing between different government entities and their agents but
places “an entity receiving the record” under “the same restrictions on disclosure
of the record as the originating entity.” Id. § 63G-2-206.
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“significantly threatened.” (Appellant’s App. at 292.) The court then concluded
that the statute did not violate the Fourth Amendment because Mr. Doe had failed
to show he had a reasonable expectation of privacy in his internet identifiers,
which are communicated to a third party. Finally, the court held, relying on our
earlier decision in Femedeer v. Haun, 227 F.3d 1244, 1246 (10th Cir. 2000), that
the registry statute did not violate the Ex Post Facto Clause. Mr. Doe now
appeals each of these rulings.
DISCUSSION
We generally review a decision to grant a Rule 60(b) motion for an abuse
of discretion. See Stubblefield v. Windsor Capital Grp., 74 F.3d 990, 994 (10th
Cir. 1996). Nevertheless, we review the district court’s decision de novo where,
as here, the district court granted relief as a matter of law. See Lyons v. Jefferson
Bank & Trust, 994 F.2d 716, 727 (10th Cir. 1993) (“A district court would
necessarily abuse its discretion if it based its rulings on an erroneous view of the
law . . . .”).
1. Mr. Doe’s claim under the First Amendment
We first consider Mr. Doe’s contention that Utah’s registration statute
violates his First Amendment right to engage in anonymous speech. That the First
Amendment guarantees a right to anonymous speech is beyond question. As the
Supreme Court explained in McIntyre v. Ohio Elections Commission, “Anonymity
is a shield from the tyranny of the majority. It thus exemplifies the purpose
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behind the Bill of Rights, and of the First Amendment in particular: to protect
unpopular individuals from retaliation—and their ideas from suppression—at the
hand of an intolerant society.” 514 U.S. 334, 357 (1995) (citation omitted). That
the right to engage in anonymous speech should extend fully to communications
made through the medium of the internet is equally clear. See Reno v. ACLU, 521
U.S. 844, 870 (1997) (explaining that the internet allows “any person with a
phone line [to] become a town crier with a voice that resonates farther than it
could from any soapbox” and that “our cases provide no basis for qualifying the
level of First Amendment scrutiny that should be applied to this medium”). In
spite of these protections, however, a state may permissibly infringe upon this
right when its interest is important enough and the law is appropriately tailored to
meet the stated interest. See Am. Constitutional Law Found., Inc. v. Meyer, 120
F.3d 1092, 1102 (10th Cir. 1997).
According to Mr. Doe, we should view Utah’s statute as a content-based
restriction, subject to the strictest of scrutiny, because it has the effect of taking
“away [Mr.] Doe’s right to choose whether to speak anonymously or under a
pseudonym.” (Appellant’s Br. at 10.) We are not persuaded. “The principal
inquiry in determining content neutrality is whether the government has adopted a
regulation of speech because of disagreement with the message it conveys.” Am.
Target Adver., Inc. v. Giani, 199 F.3d 1241, 1247 (10th Cir. 2000) (internal
quotation marks and ellipsis omitted).
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As a general rule, laws that by their terms distinguish favored
speech from disfavored speech on the basis of ideas or views
expressed are content based. By contrast, laws that confer benefits
or impose burdens on speech without reference to the ideas or views
expressed are in most instances content neutral.
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994) (citation omitted).
Simply because an otherwise content-neutral law has “an incidental effect on
some speakers or messages” does not change its classification so long as it
“serves purposes unrelated to the content of expression.” Golan v. Holder, 609
F.3d 1076, 1083 (10th Cir. 2010). On its face, section 77-27-21.5 is a content-
neutral regulation. The law says nothing about the ideas or opinions that Mr. Doe
may or may not express, anonymously or otherwise. Neither is it aimed at
“supress[ing] the expression of unpopular views,” Am. Target, 199 F.3d at 1247,
but rather it is directed towards aiding the police in solving crimes. We will
therefore examine the State’s law as a content-neutral regulation.
As a content-neutral regulation, Utah’s reporting law is subject to
intermediate scrutiny, meaning that the law will be upheld if “the Act (1) serves a
substantial government interest and (2) is ‘narrowly drawn’ to serve that interest
‘without unnecessarily interfering with First Amendment freedoms.’” Id. (quoting
Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 637 (1980)).
Both sides have agreed that Utah has a compelling interest in protecting the
public from kidnapping and sex-related crimes, and we conclude that the
reporting statute serves that interest. Thus, our consideration of this statute must
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focus on whether it unnecessarily interferes with Mr. Doe’s First Amendment
freedoms. In reviewing state statutes challenged on First Amendment grounds,
we will uphold a law if it is “readily susceptible to a narrowing construction that
would make it constitutional.” ACLU v. Johnson, 194 F.3d 1149, 1159 (10th Cir.
1999). Nevertheless, “[t]he key to application of this principle is that the statute
must be readily susceptible to the limitation; we will not rewrite a state law to
conform it to constitutional requirements.” Id.Mr. Doe argues that the statute is unconstitutional because the required
disclosure of internet identifiers to state officials, as well as the possibility of
disclosure of those identifiers to the public, chills his speech. 5 Turning first to
the possibility of disclosure to the public, Mr. Doe focuses on the language of
section 77-27-21.5(2)(c), which allows the state to “share information provided
by an offender under this section that may not be made available to the public [on
the sex-offender notification and registration website], but only: (i) for the
purposes under this Subsection (2); or (ii) in accordance with Section 63G-2-
206.” (emphasis added). According to Mr. Doe, the “or” in this statute means
5
Mr. Doe also alleges that the law is improper because it is not the least
restrictive means of addressing the state’s interest. However, under intermediate
scrutiny “a regulation need not be the least speech-restrictive means of advancing
the Government’s interests. Rather, the requirement of narrow tailoring is
satisfied so long as the regulation promotes a substantial government interest that
would be achieved less effectively absent the regulation.” Turner Broad., 512
U.S. at 662 (internal quotation marks and ellipsis omitted).
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that the government may choose to share information with the public, free from
the privacy safeguards contained in section 63G-2-206, so long as it is “to assist
in investigating kidnapping and sex-related crimes.” § 77-27-21.5(2). Thus, Mr.
Doe argues, the statute allows for the possibility of forced public disclosure of
what would otherwise be anonymous speech.
Despite Mr. Doe’s arguments, however, we conclude that Utah’s law
provides sufficient safeguards so as to negate any potential fears of public
disclosure. While Mr. Doe is correct that the language of subsections (c)(i) and
(c)(ii) allows law enforcement to share information under either condition, he is
not correct that information shared under subsection 21.5(c)(i) loses its privacy
protection. Rather, as we discussed infra, under Utah’s GRAMA statute, Mr.
Doe’s online identifiers are classified as private records and may not be disclosed
except under the limited circumstances allowed by sections 63G-2-202, 63G-2-
206, or 63G-2-303. See Utah Code Ann. § 63G-2-201(5)(a) (West Supp. 2010).
Thus, even if information shared under section 77-27-21.5(2)(c)(i) is not subject
to the protections of section 63G-2-206, it is nevertheless protected by and
subject to the disclosure and privacy requirements of section 63G-2-201(5) and its
related provisions, which include criminal penalties accompanying an
unauthorized disclosure. See id. § 63G-2-801(1)(a).
As for Mr. Doe’s arguments concerning the potential chilling effect of
disclosure to state officials, we also hold that the statute includes sufficient
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restrictions so as not to unnecessarily chill Mr. Doe’s speech. Mr. Doe argues
that the language of section 77-27-21.5(2) is broad enough to allow the state to
monitor his communications at any time, which in turn may chill any anonymous
criticisms of oppressive laws or state practices he might otherwise make via the
internet. However, while this section, which allows the State to use an offender’s
internet identifiers “to assist in investigating kidnapping and sex-related crimes,
and in apprehending offenders,Ӥ 77-27-21.5(2), can be read broadly, we
conclude that it is also readily susceptible to a narrowing construction.
Accordingly, we read this language, as did the district court, as only allowing
state actors to look beyond the anonymity surrounding a username in the course
of an investigation after a new crime has been committed.
Although this narrow interpretation may still result in the disclosure of Mr.
Doe’s online identifiers to state officials, such identification will not
unnecessarily interfere with his First Amendment freedom to speak anonymously
because such a disclosure would occur, if at all, at some time period following
Mr. Doe’s speech and not at the moment he wished to be heard. As the Fourth
Circuit has explained, “Speech is chilled when an individual whose speech relies
on anonymity is forced to reveal his identity as a pre-condition to expression. In
other words, the First Amendment protects anonymity where it serves as a
catalyst for speech.” Peterson v. Nat’l Telecomm. & Info. Admin., 478 F.3d 626,
632 (4th Cir. 2007) (citation omitted); see also Buckley v. Am. Constitutional Law
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Found., 525 U.S. 182, 199-200 (1999) (holding that a law requiring petition
circulators to attach an affidavit with personal information to completed petitions
was constitutional but invalidating a requirement that the circulators wear name
badges at the time they gathered petition signatures because it “compelled . . .
identification at the precise moment when the circulator’s interest in anonymity
[was] greatest”).
As a final First Amendment consideration, Mr. Doe alleges that Utah’s
statute is overbroad. Specifically, Mr. Doe argues that the law is unconstitutional
because it allows the state to collect the internet identifiers of individuals who are
required to register under the reporting statute because of their involvement with
a kidnapping offense. According to Mr. Doe, because these offenders’
“underlying offenses are not sex-related crimes,” the statute is not narrowly
drawn to serve the stated purpose of investigating sex-related crimes.
(Appellant’s Reply Br. at 18.) However, the most recent enactment of the statute
allows state officials to access online identifiers “to assist in investigating
kidnapping and sex-related crimes,” § 77-27-21.5(2) (emphasis added), and we
are not persuaded that individuals convicted of kidnapping offenses constitute
“third parties whose speech is more likely to be protected by the First Amendment
than the plaintiff’s speech,” D.L.S. v. Utah, 374 F.3d 971, 976 (10th Cir. 2004);
see also Members of City Council of Los Angeles v. Taxpayers for Vincent, 466
U.S. 789, 802 (1984) (“[I]f the ordinance may be validly applied to [the plaintiff],
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it can validly be applied to most if not all . . . parties not before the Court.”).
2. Mr. Doe’s claims under the Fourth Amendment and Ex Post Facto Clause
We now consider Mr. Doe’s claim that he has a reasonable expectation of
privacy in his online identifiers and that requiring him to report these identifiers
to the state of Utah violates his Fourth Amendment right to be free from
unreasonable searches and seizures. We touched on this issue in United States v.
Perrine, 518 F.3d 1196 (10th Cir. 2008). In Perrine, Pennsylvania police officers
obtained, without a warrant, subscriber information—including the IP
address—associated with the unique Yahoo! online identifier “stevedragonslayer”
from Yahoo! (after an individual using that identifier showed pornographic videos
of underage girls to another visitor in a Yahoo! chatroom). Id. at 1199. Using
that IP address, the officers were then able to ascertain the defendant’s name and
residential address from Cox Communications, the internet service provider that
had issued the IP address. Id. at 1199-1200. Following his conviction, the
defendant challenged the officer’s actions based, in part, on his argument that the
police had violated his Fourth Amendment rights. We rejected this argument and
held that the defendant had no reasonable expectation of privacy in “information
that he voluntarily transmitted to the third-party internet providers, Cox and
Yahoo!” Id. at 1204.
On appeal, we see no reason why we are not bound by our earlier decision
in Perrine. See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (“We are bound by
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the precedent of prior panels absent en banc reconsideration or a superceding
contrary decision by the Supreme Court.”). Although Mr. Doe now argues that
there is a reasonable expectation of privacy in online identifiers because it is not
always the case that an individual can be identified from his identifier, even if
police are in possession of the associated IP address, he has raised these
arguments for the first time on appeal. “Generally, we do not consider issues not
presented to, considered and decided by the trial court, because an appellant’s
new argument gives rise to a host of new issues, and Appellee had no opportunity
to present evidence it may have thought relevant on these issues.” Utah Envtl.
Cong. v. Russell, 518 F.3d 817, 828-29 (10th Cir. 2008) (internal quotation
marks, brackets, and citation omitted). Such is the case here; Mr. Doe’s
arguments raise a slew of new issues and evidentiary questions to which the State
did not have a fair opportunity to respond. 6 However, even if Mr. Doe’s
arguments were not forfeited, as the district court correctly observed, “there are
no facts [in the record] from which the court can conclude that [Mr. Doe’s]
identities are shielded from [his] Internet service provider.” (Appellant’s App. at
293.) Accordingly, we find no error in the district court’s ruling on Mr. Doe’s
6
Indeed, as illustrative of the new evidence needed to support Mr. Doe’s
arguments, he has asked this court to take judicial notice of facts that were not
presented in the district court but are, according to Mr. Doe, “capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonabl[y]
be questioned.” (Appellant’s Br. at 37 n.70; see also id. at 38 n.71.)
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Fourth Amendment claim.
Finally, we consider Mr. Doe’s contention that the district court erred by
holding that Utah’s statute is not an impermissible ex post facto law. “[T]he
threshold inquiry for assessing a violation of the Ex Post Facto Clause in the
present case is whether Utah’s . . . program constitutes additional criminal
punishment for the crimes previously committed by those subject to its
provisions.” Femedeer v. Haun, 227 F.3d 1244, 1248 (10th Cir. 2000). Thus,
“[i]f the notification measures are deemed civil rather than criminal in nature,
they present no ex post facto violation.” Id. Even where, as here, neither party
contests that the legislature intended to establish a civil remedy, we must still
consider whether “the statutory scheme was so punitive either in purpose or effect
as to transform what was clearly intended as a civil remedy into a criminal
penalty.” Hudson v. United States, 522 U.S. 93, 99 (1997) (internal quotation
marks, brackets, and citation omitted). However, “[o]nly the clearest proof will
suffice to override legislative intent and transform what has been denominated a
civil remedy into a criminal penalty.” Id. at 100 (internal quotation marks
omitted).
In Femedeer v. Haun, after examining the same Utah statute at issue in this
case—absent the requirement that an offender disclose his or her internet
identifiers—we stated that the evidence did “not come even close to the ‘clearest
proof’ necessary to overcome the civil intent of Utah’s legislature.” 227 F.3d at
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1253. We then held that “Utah’s notification scheme imposes only a civil burden
upon sex offenders and therefore does not run afoul of the Ex Post Facto Clause.”
Id. Nevertheless, on appeal Mr. Doe argues that this new disclosure requirement
provides “‘the clearest proof’ that the notification scheme is an ex post facto law
that is punitive in purpose and effect.” (Appellant’s Br. at 45.) Looking closely
at Mr. Doe’s argument on this issue, it seems clear that his contentions depend
entirely upon his argument that the Utah statute would allow impermissible public
disclosure of his internet identifiers, thereby destroying his right to anonymous
speech. However, because we conclude that Utah’s registration statute does not
violate the First Amendment, we hold that the effect of the new disclosure
requirements is not substantial enough to alter our original analysis of the statute
in Femedeer. Thus, we hold that the district court did not err in dismissing Mr.
Doe’s claim under the Ex Post Facto Clause.
Therefore, for these and the foregoing reasons, we AFFIRM the district
court’s ruling vacating its earlier orders enjoining enforcement of the statute.
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