John Doe v. Kamala Harris

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN DOE; JACK ROE; CALIFORNIA No. 13-15263
REFORM SEX OFFENDER LAWS, on
behalf of themselves and others D.C. No.
similarly situated, 3:12-cv-05713-
Plaintiffs-Appellees, TEH
v.
KAMALA D. HARRIS, Attorney
General of the State of California,
Defendant-Appellant,
and
DAPHNE PHUNG; CHRIS KELLY,
Intervenors-Appellants.
JOHN DOE; JACK ROE; CALIFORNIA No. 13-15267
REFORM SEX OFFENDER LAWS, on
behalf of themselves and others D.C. No.
similarly situated, 3:12-cv-05713-
Plaintiffs-Appellees, TEH
v.
OPINION
2 DOE V. HARRIS
KAMALA D. HARRIS, Attorney
General of the State of California,
Defendant-Appellant,
and
DAPHNE PHUNG; CHRIS KELLY,
Intervenors-Appellants,
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, Senior District Judge, Presiding
Argued and Submitted
September 10, 2013—San Francisco, California
Filed November 18, 2014
Before: Mary M. Schroeder and Jay S. Bybee, Circuit
Judges, and Robert J. Timlin, Senior District Judge.*
Opinion by Judge Bybee
*
The Honorable Robert J. Timlin, Senior District Judge for the U.S.
District Court for the Central District of California, sitting by designation.
DOE V. HARRIS 3
SUMMARY**
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
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 DOE V. HARRIS
discretion in deciding that all the necessary elements for
obtaining a preliminary injunction were satisfied.
COUNSEL
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.
DOE V. HARRIS 5
OPINION
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 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 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.
I. BACKGROUND
A. The CASE Act
“California has had some form of sex offender
registration requirement since 1947.” In re Alva, 92 P.3d
6 DOE V. HARRIS
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.
DOE V. HARRIS 7
Id. § 290.014(b) (emphasis added).1 The CASE Act defines
the term “Internet 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
1
The federal Sex Offender Registration and Notification Act
(“SORNA”), enacted as part of the Adam Walsh Child Protection and
Safety Act of 2006, gives the states powerful financial incentives to
maintain a sex offender registry. 42 U.S.C. §§ 16912 (“Each jurisdiction
shall maintain a jurisdiction-wide sex offender registry conforming to the
requirements of this subchapter.”), 16925(a) (providing that a
nonconforming jurisdiction “shall not receive 10 percent of the funds that
would otherwise be allocated for that fiscal year to the jurisdiction under
. . . the Omnibus Crime Control and Safe Streets Act of 1968”). SORNA
requires states to include in their sex offender registries information such
as the registrants’ names and addresses, as well as “[a]ny other
information required by the Attorney General.” Id. § 16914(a). Pursuant
to that authority, in 2008 the Attorney General issued guidelines requiring
states to collect sex offenders’ Internet identifiers and addresses. National
Guidelines for Sex Offender Registration, 73 Fed. Reg. 38030, 38055
(July 2, 2008); see also 42 U.S.C. § 16915a(a) (requiring states to obtain
registrants’ Internet identifiers “of any type that the Attorney General
determines to be appropriate”).
8 DOE V. HARRIS
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.
DOE V. HARRIS 9
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.
II. STANDARD OF REVIEW
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.
10 DOE V. HARRIS
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(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 [we] had applied the law to the facts of the
case.” Id. (internal quotation marks omitted).
III. DISCUSSION
A. Likelihood of Success on the Merits
Appellees’ First Amendment challenge rests on two
premises: first, that registered sex offenders are entitled to
full First Amendment protection, and second, that the Case
Act warrants First Amendment scrutiny. Concluding that
DOE V. HARRIS 11
registered sex offenders enjoy full First Amendment
protection, and that the Act warrants First Amendment
scrutiny, we apply intermediate scrutiny and conclude, as did
the district court, that Appellees are likely to succeed on the
merits of their First Amendment challenge.2
1. Scope of First Amendment Protection Afforded to
Registered Sex Offenders
As the district court noted, both sides in this litigation
agree that “speech by sex offenders who have completed their
terms of probation or parole enjoys the full protection of the
First Amendment.” We agree, but we think it is important to
understand why, because when a convict’s constitutional
rights are at issue, his present status “on a continuum of
possible punishments” may be a relevant consideration.
Samson v. California, 547 U.S. 843, 848 (2006) (internal
quotation marks omitted).
On the one end of the continuum is incarceration, which
“brings about the necessary withdrawal or limitation of many
privileges and rights.” Price v. Johnston, 334 U.S. 266, 285
(1948), overruled on other grounds by McCleskey v. Zant,
499 U.S. 467 (1991). “These constraints on inmates, and in
some cases the complete withdrawal of certain rights, are
‘justified by the considerations underlying our penal
system.’” Hudson v. Palmer, 468 U.S. 517, 524 (1984)
(quoting Price, 334 U.S. at 285). Accordingly, inmates only
2
Because we agree with the district court that Appellees are likely to
succeed on their freedom of speech claims, we decline to address their
vagueness and freedom of association claims. See Badea v. Cox, 931 F.2d
573, 575 n.2 (9th Cir. 1991) (“[W]e see no reason to decide ab initio
issues that the district court has not had an opportunity to consider. . . .”).
12 DOE V. HARRIS
“retain[] those First Amendment rights that are not
inconsistent with [their] status as . . . prisoner[s] or with the
legitimate penological objectives of the corrections system.”
Pell v. Procunier, 417 U.S. 817, 822 (1974).
Parole (or supervised release, in the federal system)3 is
one step removed from imprisonment. “The essence of
parole is release from prison, before the completion of
sentence, on the condition that the prisoner abide by certain
rules during the balance of the sentence.” Morrissey v.
Brewer, 408 U.S. 471, 477 (1972). Although parolees
“should enjoy greater freedom in many respects than a
prisoner, . . . the Government may . . . impose restrictions on
the rights of the parolee that are reasonably and necessarily
related to the [Government’s] interests.” Birzon v. King, 469
F.2d 1241, 1243 (2d Cir. 1972). For example, we have
upheld Internet monitoring as a condition of release for
parolees who were convicted of downloading child
pornography. See, e.g., United States v. Quinzon, 643 F.3d
1266, 1272–73 (9th Cir. 2011); United States v. Goddard, 537
F.3d 1087, 1090 (9th Cir. 2008). But, because parolees retain
some of their First Amendment rights we have also struck
conditions of release that unreasonably burdened those rights.
See, e.g., United States v. Barsumyan, 517 F.3d 1154,
1161–62 (9th Cir. 2008) (holding that the sentencing court
plainly erred in imposing a restriction on all computer use as
a condition of supervised release); United States v. Sales, 476
F.3d 732, 736 (9th Cir. 2007) (holding that a condition of
3
“The federal system has abolished parole, and uses supervised release
to supervise felons after they get out of prison. People on supervised
release have not completed their sentences, they are serving them.”
United States v. Betts, 511 F.3d 872, 876 (9th Cir. 2007) (footnote
omitted).
DOE V. HARRIS 13
release that required computer monitoring “result[ed] in a far
greater deprivation of [the defendant]’s liberty than [wa]s
reasonably necessary” in light of the nature of the
counterfeiting offense and the defendant’s history and
characteristics).
Probation is less restrictive than parole, though it is still
on the continuum of state-imposed punishments. See
Samson, 547 U.S. at 850 (“[P]arole is more akin to
imprisonment than probation is to imprisonment.”); id. (“[O]n
the Court’s continuum of possible punishments, parole is the
stronger medicine; ergo, parolees enjoy even less of the
average citizen’s absolute liberty than do probationers.”
(alteration in original) (quoting United States v. Cardona, 903
F.2d 60, 63 (1st Cir. 1990))). Unlike parole, which is
imposed in addition to imprisonment, probation is “meted
out . . . in lieu of[] incarceration.” Cardona, 903 F.2d at 63.
Although probation is a less restrictive criminal sanction, the
government may still “impose reasonable conditions that
deprive the offender of some freedoms enjoyed by law-
abiding citizens.” United States v. Knights, 534 U.S. 112,
119 (2001).
Here, the plaintiffs fall into yet another category. They
are not prisoners, parolees, or probationers. Doe and Roe
were convicted of sex-related crimes more than two decades
ago and have completed their terms of probation and parole.
Although they remain subject to reporting requirements, sex
offenders like Doe and Roe are no longer on the “continuum”
of state-imposed punishments. Samson, 547 U.S. at 850; see
also Williamson v. Gregoire, 151 F.3d 1180, 1181 (9th Cir.
1998) (“Although Williamson’s criminal punishment has
come to an end, he must now register as a sex offender
. . . .”). As we explained in Williamson, sex offender
14 DOE V. HARRIS
registration “is more properly characterized as a collateral
consequence of conviction rather than as a restraint on
liberty.” Id. at 1183.
Of course, if Doe, Roe, or other sex offenders fail to
follow California’s registration requirements, they are subject
to criminal sanctions, which in California can be harsh. See
Gonzalez v. Duncan, 551 F.3d 875, 889 (9th Cir. 2008)
(holding that a sentence of 28 years to life under California’s
“three strikes” law for filing a sex offender registration
update three months late violated the Eighth Amendment); id.
at 887–88 (comparing California’s registration and sentencing
scheme with other states). But such sanctions are not the
same as having parole or probation revoked; rather, they
constitute a new criminal penalty altogether. So while
registered sex offenders suffer from the effects of their
crimes, they are no longer subject to formal punishment. We
accordingly agree 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.”
2. First Amendment Scrutiny
In evaluating the CASE Act, we must determine in the
first instance whether the Act implicates the First
Amendment. Appellants are correct that, on its face, the
CASE Act does not prohibit speech. But a law may burden
speech—and thereby regulate it—even if it stops short of
prohibiting it. Indeed, “the ‘distinction between laws
burdening and laws banning speech is but a matter of
degree.’” Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2664
(2011) (quoting United States v. Playboy Entm’t Grp., Inc.,
529 U.S. 803, 812 (2000)).
DOE V. HARRIS 15
There can be little doubt that requiring a narrow class of
individuals to notify the government within 24 hours of
engaging in online communication with a new identifier
significantly burdens those individuals’ ability and
willingness to speak on the Internet. See Cal. Penal Code
§ 290.014(b). Of course, that the law targets registered sex
offenders might not be troublesome by itself—federal and
state laws already impose reporting requirements on that
same group, and those laws have not been thought to be
unconstitutional because registrants must spend time to fill
out paperwork that they otherwise might have spent engaging
in First Amendment activities. Cf. Arcara v. Cloud Books,
Inc., 478 U.S. 697, 706 (1986) (“One liable for a civil
damages award has less money to spend on paid political
announcements or to contribute to political causes, yet no one
would suggest that such liability gives rise to a valid First
Amendment claim.”).
But the CASE Act burdens sex offenders precisely when
they are engaged in one activity—communicating through the
Internet. In that respect, this case is similar to Minneapolis
Star & Tribune Co. v. Minnesota Commissioner of Revenue,
460 U.S. 575 (1983). There, the state imposed a tax on the
cost of ink and paper, but it exempted the first $100,000
worth of material. As a consequence, only a small number of
large newspaper publishers were subject to the tax. Id. at
578–79. The Supreme Court began with the common-sense
proposition that the government “can subject newspapers to
generally applicable economic regulations without creating
constitutional problems.” Id. at 581. But Minnesota’s special
use tax, the Court determined, was not a generally applicable
economic regulation that merely incidentally burdened
publications in their exercise of free speech. See id. Instead,
it “singled out the press for special treatment” and “applie[d]
16 DOE V. HARRIS
only to certain publications protected by the First
Amendment.” Id. at 581, 582. The Court thus subjected the
use tax to First Amendment scrutiny rather than analyzing it
as an equal protection issue. See id. at 582, 585 n.7.
Just as the tax on paper and ink in Minneapolis Star
inevitably burdened specific publishers’ ability to engage in
free speech, so too does the CASE Act’s 24-hour reporting
requirement inevitably burden sex offenders’ ability to
engage in protected speech on the Internet. Indeed, the
purpose of the Act is to collect Internet identifiers that sex
offenders use “for the purpose of Internet forum discussions,
Internet chat room discussions, instant messaging, social
networking, or similar Internet communication.” Cal. Penal
Code § 290.024(b) (emphasis added). Moreover, the burden
here is substantial—the Act conditions Internet speech with
a new identifier on a registrant’s affirmative act of sending
written notice to the police within 24 hours. Cf. Lamont v.
Postmaster Gen., 381 U.S. 301, 307 (1965) (holding that a
law requiring addressees of “communist political
propaganda” to request in writing that the mailing be
delivered violated the addressees’ First Amendment rights
because the law imposed an impermissible “affirmative
obligation” and was “almost certain to have a deterrent
effect”). And if that was not enough of a burden, the Act’s
reporting requirement carries with it the threat of criminal
sanctions.
For the very reasons this case is like Minneapolis Star and
Lamont, it is nothing like Arcara, a case urged on us by
Appellants. In Arcara, the Supreme Court held that the First
Amendment was not implicated by the enforcement of a
public health regulation authorizing the government to close
premises used for prostitution merely because the premises at
DOE V. HARRIS 17
issue were also used as an adult bookstore. 478 U.S. at
704–07. The Court distinguished Minneapolis Star because
the statute in Minneapolis Star “ha[d] the inevitable effect of
singling out those engaged in expressive activity.” Id. at 707.
By contrast, the closure sanction at issue in Arcara “was
directed at unlawful conduct having nothing to do with books
or other expressive activity.” Id. Here, we cannot say that
the CASE Act has nothing to do with First Amendment
activity. To the contrary, the CASE Act directly and
exclusively burdens speech, and a substantial amount of that
speech is clearly protected under the First Amendment—just
as the Act burdens sending child pornography and soliciting
sex with minors, it also burdens blogging about political
topics and posting comments to online news articles.4
The Act also has the inevitable effect of burdening sex
offenders’ ability to engage in anonymous online speech.
Appellees allege that the Act allows law enforcement to
disclose their identifying information to the public without
imposing sufficient constraints on law enforcement’s
discretion to do so. The Supreme Court has subjected
speaker regulations—such as disclosure requirements—to
4
Appellants argue that Proposition 35 updates California’s sex offender
registration law to make it a “generally applicable governmental
regulation” of the kind at issue in Arcara because “[f]ar from ‘singling
out’ Internet-related activities for special burdens, Proposition 35 seeks to
extend the same registration requirements that apply in the physical world
to the virtual world.” For example, Appellants note, “if a registrant uses
an alias to send a letter to the newspaper editor, he must report that alias
to law enforcement.” But the law’s applicability to both Internet and non-
Internet speech only means that the law is more speech restrictive. It does
not make the law “generally applicable” to all speakers like the anti-
prostitution law in Arcara. Indeed, it is still precisely the same group of
individuals that is singled out.
18 DOE V. HARRIS
First Amendment scrutiny. For example, in McIntyre v. Ohio
Elections Commission, the Court held that an Ohio statute
that required leafleters to put their names on campaign
literature “undeniably impede[d] protected First Amendment
activity.” 514 U.S. 334, 355 (1995). As the Court explained,
“an author’s decision to remain anonymous, like other
decisions concerning omissions or additions to the content of
a publication, is an aspect of the freedom of speech protected
by the First Amendment.” Id. at 342. Relying on McIntyre,
the Court similarly held that a Colorado law that required
initiative-petition circulators to wear an identification badge
deterred speech. Buckley v. Amer. Constitutional Law
Found., Inc., 525 U.S. 182, 200 (1999).
We have explained, moreover, that “[a]lthough the
Internet is the latest platform for anonymous speech, online
speech stands on the same footing as other speech—there is
‘no basis for qualifying the level of First Amendment scrutiny
that should be applied’ to online speech.” In re Anonymous
Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011)
(quoting Reno v. Am. Civil Liberties Union, 521 U.S. 844,
870 (1997)). First Amendment scrutiny is thus also
warranted because the Act burdens registered sex offenders’
willingness to engage in anonymous online speech.
Accordingly, because the Act imposes a substantial
burden on sex offenders’ ability to engage in legitimate
online speech, and to do so anonymously, we conclude that
First Amendment scrutiny is warranted.
3. Level of Scrutiny
Having determined that some level of First Amendment
scrutiny is warranted, we now determine which level. In the
DOE V. HARRIS 19
First Amendment context, the level of scrutiny to be applied
depends upon the “‘content neutrality’ of the statute.” Hill v.
Colorado, 530 U.S. 703, 719 (2000). Content-based
regulations are subject to the most exacting scrutiny because
the “government has no power to restrict expression because
of its message, its ideas, its subject matter, or its content.”
Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972).
By contrast, “regulations that are unrelated to the content of
speech are subject to an intermediate level of scrutiny.”
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994).
So, “[t]he principal inquiry in determining content neutrality
. . . is whether the government has adopted a regulation of
speech because of disagreement with the message it
conveys.” Ward v. Rock Against Racism, 491 U.S. 781, 791
(1989).
We conclude that the CASE Act is content neutral. On its
face, the Act makes no reference to specific subject matters
or viewpoints. And unlike the registration laws in other states,
California’s CASE Act does not prohibit registered sex
offenders from using particular websites, or any particular
types of communication. Compare Cal. Penal Code § 290 et
seq. with N.C. Gen. Stat. § 14-202.5 (2013) (banning the use
of commercial social networking websites by any registered
sex offender) and Ind. Code § 35-42-4-12 (2014) (prohibiting
sex offenders from using social networking websites, instant
messaging services, and chat room programs). Instead, the
CASE Act broadly applies to all identifiers that a registrant
uses for online communication, regardless of whether he uses
the identifier to chat, post product reviews, or ask questions
about a credit card bill. In that respect, the law may be broad,
but at least it is content neutral.
20 DOE V. HARRIS
The more difficult question is whether the CASE Act is
subject to strict scrutiny because it makes speaker-based
distinctions. In Ward, the Supreme Court declared that “[a]
regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental
effect on some speakers or messages but not others.” 491
U.S. at 791. More recently, however, the Court held in
Citizens United v. Federal Election Commission that the First
Amendment prohibits “restrictions distinguishing among
different speakers; allowing speech by some but not others.”
558 U.S. 310, 340 (2010). The Court explained that
“[s]peech restrictions based on the identity of the speaker are
all too often simply a means to control content,” and that
“[b]y taking the right to speak from some and giving it to
others, the Government deprives the disadvantaged person or
class of the right to use speech to strive to establish worth,
standing, and respect for the speaker’s voice.” Id. at 340–41.
The Court thus applied strict scrutiny to the ban on political
speech as a non-content neutral restriction.
Here, although it is true that the Act singles out registered
sex offenders as a category of speakers, it does not target
political speech content, nor is it a ban on speech. See id. at
339 (observing that the restrictions constituted a “ban on
speech” and that “[t]he First Amendment ‘has its fullest and
most urgent application to speech uttered during a campaign
for political office’” (citation omitted)). In the context of
laws that burden speech but do not ban it, the test is not
merely whether a law singles out individuals—many speech-
burdening laws do. The test is whether the speech-burdening
restrictions “are justified without reference to the content of
the regulated speech.” Boos v. Barry, 485 U.S. 312, 320
(1988) (emphasis in original) (quoting Renton v. Playtime
DOE V. HARRIS 21
Theatres, Inc., 475 U.S. 41, 48 (1986)) (internal quotation
marks omitted).
The Supreme Court’s decision in Turner Broadcasting is
instructive. At issue in that case were rules requiring cable
television systems to devote a portion of their channels to the
transmission of local broadcast television stations. 512 U.S.
at 626. The Court acknowledged that these “must-carry”
provisions “distinguish[ed] between speakers in the television
programming market”—over-the-air broadcasters were
favored, while cable programmers and cable operators were
burdened by the carriage obligations. Id. at 645.
Nevertheless, the provisions “d[id] so based only upon the
manner in which speakers transmit their messages to viewers,
and not upon the messages they carry.” Id. The Court
reasoned that so long as such speaker distinctions “[we]re not
a subtle means of exercising a content preference,” the
otherwise content-neutral provisions were not subject to strict
scrutiny. Id. Reviewing the statute and its various legislative
findings, the Court was persuaded “that Congress’ overriding
objective in enacting must-carry was not to favor
programming of a particular subject matter, viewpoint, or
format, but rather to preserve access to free television
programming for the 40 percent of Americans without cable.”
Id. at 646. The Court thus reviewed the must-carry
provisions under an intermediate level of scrutiny. Id. at
661–62.
Here as well, the CASE Act does not target speakers or
the forum in a way that suggests that the restrictions are a
proxy for content regulation. The Act’s purpose is clear: It
is to “combat the crime of human trafficking” and to
“strengthen laws regarding sexual exploitation, including sex
offender registration requirements, to allow law enforcement
22 DOE V. HARRIS
to track and prevent online sex offenses and human
trafficking.” Proposition 35, Californians Against Sexual
Exploitation Act, § 3(1), (3). Although we conclude that the
Act burdens protected speech, nothing in the Act suggests
that the Act’s purpose was to disfavor any particular
viewpoint or subject matter. We therefore conclude that “the
appropriate standard by which to evaluate the
constitutionality of [the Act] is the intermediate level of
scrutiny applicable to content-neutral restrictions that impose
an incidental burden on speech.” Turner, 512 U.S. at 662.
Our conclusion finds support in the decisions of other
courts that have considered registration requirements similar
to those found in the CASE Act. The Tenth Circuit, for
example, has held that Utah’s reporting law, which requires
sex offenders to provide all Internet identifiers and their
corresponding websites, was a “content-neutral regulation . . .
subject to intermediate scrutiny.” Doe v. Shurtleff, 628 F.3d
1217, 1223 (10th Cir. 2010). Similarly, the Seventh Circuit
has held that an Indiana statute, which prohibited certain sex
offenders from using social networking sites, instant
messaging, or chat rooms that are accessible to minors, was
“content neutral because it restrict[ed] speech without
reference to the expression’s content” and was therefore
subject to intermediate scrutiny. Doe v. Prosecutor, Marion
Cnty., Ind., 705 F.3d 694, 698 (7th Cir. 2013). Other courts
have concluded likewise. See, e.g., Doe v. Nebraska, 898 F.
Supp. 2d 1086, 1093 1107–08 (D. Neb. 2012) (Nebraska
statute that required sex offenders to disclose “remote
communication device identifiers, addresses, domain names,
and Internet and blog sites used” was subject to intermediate
scrutiny); White v. Baker, 696 F. Supp. 2d 1289, 1307–08
(N.D. Ga. 2010) (Georgia statute requiring sex offenders to
produce their email addresses, usernames, and password was
DOE V. HARRIS 23
subject to intermediate scrutiny); State v. Packingham, 748
S.E.2d 146, 149–50 (N.C. App. 2013) (North Carolina statute
banning use of social networking sites by sex offenders was
subject to intermediate scrutiny). We join these courts that
have reviewed similar laws, and apply intermediate scrutiny
to the CASE Act.
4. Intermediate Scrutiny Analysis
Content-neutral restrictions on protected speech survive
intermediate scrutiny so long as “‘they are narrowly tailored
to serve a significant governmental interest, and . . . leave
open ample alternative channels for communication of the
information.’” Ward, 491 U.S. at 791 (quoting Clark v.
Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).
“To satisfy this standard, a regulation need not be the least
speech-restrictive means of advancing the Government’s
interests.” Turner, 512 U.S. at 662. Rather, the test is
whether “the means chosen . . . ‘burden[s] substantially more
speech than is necessary to further the government’s
legitimate interests.’” Id. (quoting Ward, 491 U.S. at 799);
see Comite de Jornaleros de Redondo Beach v. City of
Redondo Beach, 657 F.3d 936, 947 (9th Cir. 2011) (en banc).
The government must also “demonstrate that the recited
harms are real . . . and that the regulation will in fact alleviate
these harms in a direct and material way.” Turner, 512 U.S.
at 664.
The CASE Act is clearly intended to serve a legitimate
interest. The Act’s stated purpose is to “combat the crime of
human trafficking” and “to strengthen laws regarding sexual
exploitation, including sex offender registration requirements,
to allow law enforcement to track and prevent online sex
offenses and human trafficking.” Proposition 35, § 3(1), (3).
24 DOE V. HARRIS
The Act declares that protecting people in California “from
all forms of sexual exploitation is of paramount importance.”
Id. § 2(1). It further recites that “[w]hile the rise of the
Internet has delivered great benefits to California, the
predatory use of this technology by human traffickers and sex
offenders has allowed such exploiters a new means to entice
and prey on vulnerable individuals” and that the Act will
“deter predators from using the Internet to facilitate human
trafficking and sexual exploitation.” Id. § 2(4), (6).
Unquestionably, the State’s interest in preventing and
responding to crime, particularly crimes as serious as sexual
exploitation and human trafficking, is legitimate. We have
observed that there is a “strong link between child
pornography and the Internet, and the need to protect the
public, particularly children, from sex offenders.” United
States v. Rearden, 349 F.3d 608, 621 (9th Cir. 2003) (internal
quotation marks omitted); see also City of L.A. v. Alameda
Books, Inc., 535 U.S. 425, 435 (2002) (plurality opinion)
(“[W]e find that reducing crime is a substantial government
interest . . . .”); Doe v. Prosecutor, 705 F.3d at 698 (“Indiana
is certainly justified in shielding its children from improper
sexual communication.”); Shurtleff, 628 F.3d at 1223 (“We
have no doubt that the State of Utah has a compelling interest
in investigating kidnapping and sex-related crimes.”); White,
696 F. Supp. 2d at 1308 (“[Georgia] has an interest in
protecting against internet abuse of children.”). California
has a substantial interest in protecting vulnerable individuals,
particularly children, from sex offenders, and the use of the
Internet to facilitate that exploitation is well known to this
Court. See, e.g., United States v. Curtin, 588 F.3d 993 (9th
Cir. 2009); United States v. Daniels, 541 F.3d 915 (9th Cir.
2008); United States v. Stoterau, 524 F.3d 988 (9th Cir.
2008).
DOE V. HARRIS 25
Although California clearly has a legitimate interest, the
more difficult question is whether the means California has
chosen “‘burden[s] substantially more speech than is
necessary to further the government’s legitimate interests.’”
Turner, 512 U.S. at 662 (quoting Ward, 491 U.S. at 799).
“The Constitution gives significant protection from overbroad
laws that chill speech within the First Amendment’s vast and
privileged sphere.” Ashcroft v. Free Speech Coalition, 535
U.S. 234, 244 (2002). The concern that an overbroad statute
deters protected speech is especially strong where, as here,
the statute imposes criminal sanctions. See Virginia v. Hicks,
539 U.S. 113, 119 (2003).
We conclude that the CASE Act unnecessarily chills
protected speech in at least three ways: the Act does not make
clear what 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. We address
each of these concerns in turn.
a. Ambiguities in the Act
First, the Act is unclear as to what it requires registered
sex offenders to provide. The district court—at the urging of
the State—adopted narrowing constructions to clarify the
meanings of “Internet identifier” and “Internet service
provider.” The district court construed the Act’s requirement
that Internet identifiers be reported to require only reporting
of identifiers used to engage in “interactive communication,”
not those used for shopping or reading content. It also
construed the Act to require a registered sex offender to
report a new Internet identifier only once he or she actually
uses the identifier for a communicative purpose. As to ISPs,
26 DOE V. HARRIS
the district court construed the Act to require disclosure only
of ISPs with which registered sex offenders have an open
account, and not friends’ or family members’ accounts or
publicly available WiFi that does not require an account.
Despite the district court’s valiant effort at applying
narrowing constructions, we are reluctant to adopt a
narrowing construction where, as here, the terms of the
statute itself—including its definition section—are
ambiguous and arguably inconsistent. See White, 696 F.
Supp. 2d at 1312 (holding that a statute using the term
“interactive online communication” chilled a sex offender’s
right to anonymous free speech because the term is too
ambiguous). Although we will adopt a narrowing
construction where a contrary construction might raise
“serious constitutional doubts,” we can “impose a limiting
construction on a statute only if it is ‘readily susceptible’ to
such a construction.” Reno, 521 U.S. at 884 (quoting
Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 397
(1988)).
First, the Act is not readily susceptible to the district
court’s limitation of the Act to require registered sex
offenders to report only new Internet identifiers that a sex
offender actually uses for a communicative purpose.
Although it is true that the Act in one place refers only to
“identifier[s] used for the purpose of . . . Internet
communication,” Cal. Penal Code § 290.024(b) (emphasis
added), elsewhere the Act requires registered sex offenders to
provide “[a] list of any and all Internet identifiers established
or used by the person,” id. § 290.015(a)(4) (emphasis added).
Similarly, the Act is not readily susceptible to the district
court’s limitation of the Act to require registered sex
offenders to report only ISPs with which they have an open
DOE V. HARRIS 27
account. Again, the Act is inconsistent. One provision
requires registered sex offenders to report when they add or
change an “account with an Internet service provider,” id.
§ 290.014(b) (emphasis added), but another provision
requires them to disclose “any and all Internet service
providers used by the person,” § 290.015(a)(5) (emphasis
added).5
And even if the Act were readily susceptible to the
constructions adopted by the district court, our adoption of
those constructions would not necessarily alleviate the
chilling effect caused by the ambiguities in the Act. As the
district court noted, “[t]he uncertainty surrounding what
registrants must report—and the resultant potential chilling
effect—is greater in this case because the [district court’s]
interpretation of the Act is not definitive guidance to
registrants about what they must report” because it “is not
binding on state courts, where the registrants would face
prosecution for failure to register.”
Thus, whether narrowly construed or not, the ambiguities
in the statute may lead registered sex offenders either to
overreport their activity or underuse the Internet to avoid the
difficult questions in understanding what, precisely, they
must report. “This uncertainty undermines the likelihood that
the [Act] has been carefully tailored to the [State’s] goal of
protecting minors” and other victims. Reno, 521 U.S. at 871.
5
The broader reporting requirement found in § 290.015(a)(5)—
requiring registered sex offenders to report ISPs that they use, which
presumably can include hot spots and open wireless systems—is entirely
consistent with the Act’s definition of the term “Internet service provider”
as any “entity . . . through which a person may obtain access to the
Internet.” Cal. Penal Code § 290.024(a).
28 DOE V. HARRIS
And this uncertainty is particularly troubling because unclear
laws inevitably lead citizens to “‘steer far wider of the
unlawful zone’ . . . than if the boundaries of the forbidden
areas were clearly marked.” Grayned v. City of Rockford,
408 U.S. 104, 109 (1972) (alteration in original) (quoting
Baggett v. Bullitt, 377 U.S. 360, 372 (1964)).
The State suggests that even if the CASE Act is unclear,
registrants have the opportunity to ask questions when
annually registering in person, and if a registrant makes an
honest mistake, he or she will not be prosecuted because the
law only penalizes knowing failure to register. But
notwithstanding the State’s assurances that it will not
prosecute “honest mistakes,” “we cannot assume that, in its
subsequent enforcement, ambiguities will be resolved in favor
of adequate protection of First Amendment rights.” NAACP
v. Button, 371 U.S. 415, 438 (1963).
We therefore conclude that the Act’s ambiguities as to
what registrants are required to report, combined with the
criminal sanctions for failure to report, unnecessarily chill
protected speech.
b. Standards for release of identifying information
Second, the Act burdens registered sex offenders’ ability
to engage in anonymous online speech. Our nation has “a
respected tradition of anonymity in the advocacy of political
causes.” McIntyre, 514 U.S. at 343. This tradition is worth
protecting because “[a]nonymity . . . 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.” Id. at 342. “Accordingly, an author’s
decision to remain anonymous, like other decisions
DOE V. HARRIS 29
concerning omissions or additions to the content of a
publication, is an aspect of the freedom of speech protected
by the First Amendment.” Id.
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. California’s sex offender registration law provides
that, in general, information provided by registered sex
offenders “shall not be open to inspection by the public.”
Cal. Penal Code § 290.021. But in order “to allow members
of the public to protect themselves and their children from
sex offenders,” id. § 290.45(a)(2), the Act now provides that
[n]otwithstanding any other provision of law,
. . . any designated law enforcement entity
may provide information to the public about
a person required to register as a sex offender
pursuant to Section 290, by whatever means
the entity deems appropriate, when necessary
to ensure the public safety based upon
information available to the entity concerning
that specific person.
Id. § 290.45(a)(1) (emphasis added).6
6
Notably, § 290.45 prohibits law enforcement agencies from
disseminating such information through the Internet. Cal. Penal Code
§ 290.45(c)(1).
30 DOE V. HARRIS
The problem is that § 290.45(a)(1) contains no standards
for judging what is “necessary to ensure the public safety.”
Without such standards, the Act impermissibly “plac[es]
unbridled discretion in the hands of a government official or
agency.” City of Lakewood v. Plain Dealer Publ’g Co., 486
U.S. 750, 757 (1988). In Lakewood, a municipal ordinance
gave the mayor the right to grant or deny applications for
newsrack permits on public property. If the mayor denied the
application, he had to state the reasons for the denial.
According to the Court, “nothing in the law as written
require[d] the mayor to do more than make the statement ‘it
is not in the public interest’ when denying a permit
application.” Id. at 769. The Court rejected the idea that it
should presume the mayor would deny permits “only for
reasons related to the health, safety, or welfare of Lakewood
citizens.” Id. at 770. Without limits “made explicit by
textual incorporation, binding judicial or administrative
construction, or well-established practice,” the constraints on
the mayor’s authority were “illusory.” Id. at 769–70.
We cannot find any constraining principle in § 290.45.
“Public safety”—like “public interest”—is much too broad a
concept to serve as an effective constraint on law
enforcement decisions that may infringe First Amendment
rights.7 See White, 696 F. Supp. 2d at 1311 (expressing
7
For this reason, this case is distinguishable from the Tenth Circuit’s
decision in Doe v. Shurtleff, which upheld the constitutionality of Utah’s
sex offender registration statute. In that case, the Utah legislature
amended its sex offender registration statute after the statute was found
unconstitutional by the district court. Reviewing the amended statute, the
Tenth Circuit determined that Utah had limited law enforcement officials’
use of Internet identifiers to “investigating kidnapping and sex-related
crimes” and only permitted them to share such information “among law
enforcement agencies, not the public at large.” 628 F.3d at 1221, 1225.
DOE V. HARRIS 31
concern about a law allowing law enforcement to disclose sex
offenders’ Internet identifiers “to protect the public” because
“[i]t is conceivable, if not predictable, that a person in law
enforcement might determine that Internet Identifiers for
offenders ought to be released so that the public can search
for and monitor communications which an offender intends
to be anonymous”). And the promise from the State that it
will use the power appropriately is not sufficient: “[T]he
First Amendment protects against the Government; it does
not leave us at the mercy of noblesse oblige. We would not
uphold an unconstitutional statute merely because the
Government promised to use it responsibly.” United States
v. Stevens, 559 U.S. 460, 480 (2010).
The State argues that the Act, construed with existing
constraints on law enforcement activities, cabins the
discretion of law enforcement officials to use Internet
identifying information because
to conduct investigation or surveillance,
“specific and articulable facts causing the
officer to suspect that some activity relating to
crime has taken place or is occurring or about
to occur” are required and the suspicion “that
the person he or she intends to place under
surveillance is involved in that activity” is
also required.
Given the limited purposes for which identifiers could be shared among
law enforcement agencies, the court concluded that “the statute include[d]
sufficient restrictions so as not to unnecessarily chill Mr. Doe’s speech.”
Id. at 1225.
32 DOE V. HARRIS
But these general principles of good police practices for
investigation or surveillance tell us nothing about the kind of
judgment required by § 290.45 for disclosure of information
to the public “when necessary to ensure the public safety.”
We do not believe that law enforcement would ignore
§ 290.45—that section also penalizes law enforcement’s
misuse of sex offenders’ private information. But sex
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.” McIntyre, 514 U.S. at 342;
see also Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088,
1092 (W.D. Wash. 2001) (“Internet anonymity facilitates the
rich, diverse, and far ranging exchange of ideas.”).
We thus 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.
DOE V. HARRIS 33
c. 24-hour reporting requirement
Third, the Act’s 24-hour update requirement “undeniably
impedes protected First Amendment activity.” McIntyre, 514
U.S. at 355. Although registered sex offenders do not have
to register before they communicate online, they must register
within 24 hours of using a new Internet identifier—a shorter
time than is given by registration laws in other jurisdictions.
See, e.g., White, 696 F. Supp. 2d at 1294 (Georgia statute
requiring registrants to provide updated information within 72
hours). This burden is particularly onerous for sex offenders
who live in remote areas or who, like other citizens, have
multiple Internet identifiers. See Doe v. Nebraska, 898 F.
Supp. 2d. at 1122 (granting a preliminary injunction because
a blog-reporting requirement that “[r]equir[ed] sex offenders
to constantly update the government . . . [wa]s unnecessarily
burdensome and . . . [wa]s likely to deter the offender from
engaging in speech that is perfectly appropriate”).
Moreover, anytime registrants want to communicate with
a new identifier, they must assess whether the message they
intend to communicate is worth the hassle of filling out a
form, purchasing stamps, and locating a post office or
mailbox. The mail-in requirement is not only psychologically
chilling, but physically inconvenient, since whenever a
registered sex offender obtains a new ISP or Internet
identifier, he must go somewhere else within 24 hours to mail
that information to the State. Cf. Lamont, 381 U.S. at 307
(holding that a law requiring addressees of “communist
political propaganda” to request in writing that the mailing be
delivered “[wa]s almost certain to have a deterrent effect”).
The Act’s 24-hour reporting requirement thus
undoubtedly chills First Amendment Activity. Of course, that
34 DOE V. HARRIS
chilling effect is only exacerbated by the possibility that
criminal sanctions may follow for failing to update
information about Internet identifiers or ISP accounts. See
NAACP, 371 U.S. at 433 (“The threat of sanctions may deter
the[] exercise [of First Amendment rights] almost as potently
as the actual application of sanctions.”).
The 24-hour reporting requirement is not only onerous, it
is also applied in an across-the-board fashion. The
requirement applies to all registered sex offenders, regardless
of their offense, their history of recidivism (or lack thereof),
or any other relevant circumstance. And the requirement
applies to all websites and all forms of communication,
regardless of whether the website or form of communication
is a likely or even a potential forum for engaging in illegal
activity. (If for example a sex offender establishes a
username on a news outlet’s website for purposes of posting
comments to news articles, it is hard to imagine how speedily
reporting that identifier will serve the government’s
interests.) In short, we have a hard time finding even an
attempt at narrow tailoring in this section of the Act. See
White, 696 F. Supp. 2d at 1309 (“A regulatory scheme
designed to further the state’s legitimate interest in protecting
children from communication enticing them into illegal
sexual activity should consider how and where on the internet
such communication occurs.”).
* * *
Because the CASE Act’s requirements are not clear, the
information may be too freely shared with the public, and the
24-hour reporting requirement is onerous and overbroad, we
conclude that Appellees are likely to prevail on their claim
DOE V. HARRIS 35
that the CASE Act unnecessarily deters registered sex
offenders from engaging in legitimate expressive activity.8
B. Irreparable Harm, Balance of Equities, and the Public
Interest
“Even where a plaintiff has demonstrated a likelihood of
success on the merits of a First Amendment claim, he ‘must
also demonstrate that he is likely to suffer irreparable injury
in the absence of a preliminary injunction, and that the
balance of equities and the public interest tip in his favor.’”
Thalheimer, 645 F.3d at 1128 (quoting Klein v. City of San
Clemente, 584 F.3d 1196, 1207 (9th Cir. 2009)). We do not
simply assume that these elements “collapse into the merits
of the First Amendment claim.” Id. (internal quotation marks
and citation omitted).
Here, we conclude that the district court did not abuse its
discretion in deciding that all the necessary elements for
obtaining a preliminary injunction are satisfied. We have
held that the “‘[t]he loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes
irreparable injury.’” Associated Press v. Otter, 682 F.3d 821,
826 (9th Cir. 2012) (alteration in original) (quoting Elrod v.
Burns, 427 U.S. 347, 373 (1976)). A “colorable First
Amendment claim” is “irreparable injury sufficient to merit
the grant of relief,” Warsoldier v. Woodford, 418 F.3d 989,
8
Because we conclude that the Act burdens substantially more
protected speech than is necessary, we decline to decide whether
California’s sex offender registration statute actually advances the
government’s legitimate interests. We likewise decline to consider
whether there are ample alternative channels available for registered sex
offenders to speak.
36 DOE V. HARRIS
1001 (9th Cir. 2005) (internal quotation marks omitted), and
“[i]f the underlying constitutional question is close . . . we
should uphold the injunction and remand for trial on the
merits.” Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656,
664–65 (2004).
As to the balance of equities, we recognize that while the
preliminary injunction is pending, there will be some
hardship on the State. Nevertheless, the balance of equities
favors Appellees, whose First Amendment rights are being
chilled. This is especially so because the Act under scrutiny
imposes criminal sanctions for failure to comply. “Where a
prosecution is a likely possibility, yet only an affirmative
defense is available, speakers may self-censor rather than risk
the perils of trial. There is a potential for extraordinary harm
and a serious chill upon protected speech.” Id. at 670–71.
Finally, the public interest favors the exercise of First
Amendment rights. Although we appreciate the State’s
significant interest in protecting its citizens from crime,
nothing in the record suggests that enjoining the CASE Act
would seriously hamper the State’s efforts to investigate
online sex offenses, as it can still employ other methods to do
so. On the other hand, we “have consistently recognized the
significant public interest in upholding First Amendment
principles.” Sammartano v. First Judicial Dist. Court, 303
F.3d 959, 974 (9th Cir. 2002).
III. CONCLUSION
The district court did not abuse its discretion by granting
Appellees’ motion to preliminarily enjoin provisions of the
CASE Act. The district court’s judgment is
AFFIRMED.