People v. Minnis

2016 IL 119563
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 119563)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
MARK MINNIS, Appellee.
Opinion filed October 20, 2016.
JUSTICE FREEMAN delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Thomas, Kilbride, Karmeier, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 Section 3(a) of the Sex Offender Registration Act (Registration Act or Act)
requires sex offenders to disclose and periodically update information regarding
their Internet identities and websites. 730 ILCS 150/3(a) (West 2014). This
information is subject to public inspection as provided by the Sex Offender
Community Notification Law (Notification Law or Law) (730 ILCS 152/101
et seq. (West 2014)). The circuit court of McLean County entered an order finding
that this Internet disclosure provision was overbroad in violation of the first
amendment to the United States Constitution. U.S. Const., amend. I. The State
appeals directly to this court. Ill. S. Ct. R. 603 (eff. Oct. 1, 2010). We now reverse
the order of the circuit court and remand the cause to the circuit court for further
proceedings.
¶2 I. BACKGROUND
¶3 On December 15, 2010, the circuit court adjudicated defendant, Mark Minnis, a
delinquent minor for committing the offense of criminal sexual abuse (720 ILCS
5/12-15(b) (West 2010)). 1 The court sentenced him to 12 months’ probation.
Defendant’s adjudication for criminal sexual abuse rendered him a “sex offender”
pursuant to the Registration Act (730 ILCS 150/2(A)(5), (B)(1) (West 2010)).
Adhering to the statutory mandate (730 ILCS 150/3-5(a) (West 2010)), the court
ordered defendant to register as a sex offender.
¶4 On December 17, 2010, defendant reported to the Normal police department to
register. On his first sex offender registration form, defendant disclosed, inter alia,
his two e-mail addresses and his Facebook account. The Registration Act required
defendant to report thereafter at least once per year (730 ILCS 150/6 (West 2010)).
Defendant’s May 2011 registration form listed the same Internet information.2
¶5 Defendant registered again on August 29, 2014. Defendant included his two
e-mail addresses on the registration form, but he omitted his Facebook account. On
September 9, Normal police officers viewed defendant’s publicly accessible
Facebook profile online. They observed that defendant changed his Facebook
cover photo only one month prior to his August 2014 registration. On September
12, defendant was arrested and charged by information with failing to register as a
sex offender pursuant to section 3(a) of the Act (730 ILCS 150/3(a) (West 2014)).
On September 24, defendant was indicted for that offense, “in that he did not
register an Internet site, a Facebook page, which he had uploaded content to.”
1
Defendant, then 16 years old, committed an act of sexual penetration or sexual
conduct with the victim, who was 14 years old. The offense is a Class A misdemeanor. 720
ILCS 5/12-15(b), (d) (West 2010).
2
These are the only two registration forms contained in the record.
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¶6 In May 2015, defendant filed a pretrial motion to dismiss the indictment.
Defendant argued that the Internet disclosure provision in section 3(a) of the
Registration Act was overbroad and vague in violation of the United States
Constitution. On July 7, 2015, the circuit court entered an order granting
defendant’s motion to dismiss the indictment. The court rejected defendant’s
argument that the challenged provision in section 3(a) was unconstitutionally
vague. However, the court found that the Internet disclosure provision was
overbroad in violation of the first amendment. In compliance with Illinois Supreme
Court Rule 18 (eff. Sept. 1, 2006), the circuit court specifically found the entire
Internet disclosure provision unconstitutional, both on its face and as applied to
defendant, and based solely on the first amendment.3
¶7 Because this provision in section 3(a) was held invalid, the State appeals
directly to this court. Ill. S. Ct. R. 603 (eff. Oct. 1, 2010). We granted the American
Civil Liberties Union of Illinois and the Electronic Frontier Foundation leave to
submit an amici curiae brief in support of defendant. Ill. S. Ct. R. 345 (eff. Sept. 20,
2010). Additional pertinent background will be discussed in the context of our
analysis of the issues.
¶8 II. ANALYSIS
¶9 Prior to addressing the merits of the circuit court’s finding of
unconstitutionality, we must consider which part of section 3(a) of the Registration
Act was properly before the circuit court. Pertinent to the instant case, section 3(a)
requires a sex offender to disclose and periodically update two categories of
Internet information—identities and websites—described as follows:
“all e-mail addresses, instant messaging identities, chat room identities, and
other Internet communications identities that the sex offender uses or plans to
3
The parties base their arguments exclusively on the first amendment. However, amici
additionally invoke the free speech guaranty of the Illinois Constitution (Ill. Const. 1970,
art. I, § 4). An amicus curiae is not a party but a friend of the court, who takes the case with
the issues framed by the parties. Because the parties do not rely on the state constitutional
free speech guaranty, we decline to discuss it. See In re J.W., 204 Ill. 2d 50, 72-73 (2003);
Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 61-62 (2001).
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use, all Uniform Resource Locators (URLs) registered or used by the sex
offender, all blogs and other Internet sites maintained by the sex offender or to
which the sex offender has uploaded any content or posted any messages or
information ***.” 730 ILCS 150/3(a) (West 2014).
The circuit court invalidated the disclosure requirement for both categories.
¶ 10 A. Defendant’s Standing
¶ 11 The State contends that the circuit court “lacked jurisdiction to rule on the
constitutionality” of the entire Internet disclosure provision in section 3(a). The
State observes that defendant was charged specifically with failing to register his
Facebook account, which is an Internet site. Therefore, according to the State, “the
circuit court had jurisdiction to rule only on the constitutionality” of the Internet
disclosure provision as it pertains to websites and lacked jurisdiction to declare
unconstitutional the disclosure provision as it pertains to Internet identities.
¶ 12 We disagree. The State overlooks that defendant bases his facial challenge to
the entire Internet disclosure provision on first amendment overbreadth grounds.
The first amendment provides, in pertinent part, that “Congress shall make no law
*** abridging the freedom of speech” (U.S. Const., amend. I) and applies to the
States through the due process clause of the fourteenth amendment. De Jonge v.
Oregon, 299 U.S. 353, 364 (1937). The assertion of a first amendment overbreadth
claim is not the application of a procedural rule but is a function of substantive first
amendment law. Sabri v. United States, 541 U.S. 600, 610 (2004). A state court
may not avoid a proper facial attack brought on federal constitutional grounds. New
York v. Ferber, 458 U.S. 747, 767 (1982).
¶ 13 Generally, a party may not raise, and a court will not consider, a constitutional
challenge to a statutory provision that does not affect that party. In re M.I., 2013 IL
113776, ¶¶ 32, 34. Thus, a court will not consider a constitutional challenge to a
criminal statutory provision under which a defendant has not been charged. See,
e.g., People v. Blackorby, 146 Ill. 2d 307, 320-21 (1992); People v. Palkes, 52 Ill.
2d 472, 480 (1972). This traditional rule reflects two cardinal principles: the
personal nature of constitutional rights and prudential limitations on constitutional
adjudication. Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973).
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¶ 14 “The First Amendment overbreadth doctrine, however, represents a departure
from the traditional rule that a person may not challenge a statute on the ground that
it might be applied unconstitutionally in circumstances other than those before the
court.” Bates v. State Bar, 433 U.S. 350, 380 (1977). “This ‘exception to the usual
rules governing standing,’ Dombrowski v. Pfister, [380 U.S. 479, 486 (1965)],
reflects the transcendent value to all society of constitutionally protected
expression.” Bigelow v. Virginia, 421 U.S. 809, 816 (1975). As the United States
Supreme Court has explained:
“We have provided this expansive remedy out of concern that the threat of
enforcement of an overbroad law may deter or ‘chill’ constitutionally protected
speech—especially when the overbroad statute imposes criminal sanctions.
[Citations.] Many persons, rather than undertake the considerable burden (and
sometimes risk) of vindicating their rights through case-by-case litigation, will
choose simply to abstain from protected speech, [citation]—harming not only
themselves but society as a whole, which is deprived of an uninhibited
marketplace of ideas.” Virginia v. Hicks, 539 U.S. 113, 119 (2003).
Therefore, in the first amendment context, courts permit attacks on overly broad
statutes without requiring that the person making the attack show that his or her
specific conduct was actually protected. Bigelow, 421 U.S. at 815-16 (collecting
cases); People v. Holder, 96 Ill. 2d 444, 449 (1983); Village of Schaumburg v. Jeep
Eagle Sales Corp., 285 Ill. App. 3d 481, 484-85 (1996) (based on first amendment
overbreadth grounds, defendant charged with violating particular subsections of
ordinance had standing to challenge other subsections with which defendant was
not charged).
¶ 15 Of course, a person must present more than subjective allegations of a
subjective “chill.” “There must be a ‘claim of specific present objective harm or a
threat of specific future harm.’ ” Bigelow, 421 U.S. at 816-17 (quoting Laird v.
Tatum, 408 U.S. 1, 13-14 (1972)).
¶ 16 In the case at bar, defendant clearly may challenge the entire Internet disclosure
provision based on first amendment overbreadth grounds. As a sex offender,
defendant is under a continuing obligation to disclose to authorities all of the
information specified by section 3(a) of the Registration Act. That includes both
Internet identities and websites. Defendant maintains and uses e-mail addresses as
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well as a Facebook account. Any failure to disclose those e-mail addresses would
subject defendant to prosecution under the identity disclosure provision, just as his
failure to disclose his Facebook account triggered prosecution under the website
disclosure provision. In light of what happened here, the threat of prosecution from
such a lapse can hardly be considered speculative. It is real and immediate. See
Virginia v. American Booksellers Ass’n, 484 U.S. 383, 392-93 (1988).
¶ 17 Where a person engages in conduct arguably affected with a constitutional
interest but proscribed by statute and there exists a credible threat of prosecution
thereunder, that person need not risk being arrested and charged before challenging
the provision under the first amendment. Babbitt v. United Farm Workers National
Union, 442 U.S. 289, 298 (1979). Therefore, defendant clearly could have
challenged the Internet identity disclosure provision as well as the website
disclosure provision even before this prosecution was initiated. Given that
defendant had standing to bring a pre-enforcement action to challenge the entire
Internet disclosure provision, it would be anomalous to hold that his standing has
somehow been diminished or lost now that charges have actually been filed.
Nothing in first amendment jurisprudence supports such a position. Therefore, we
hold that the first amendment allowed defendant to challenge the constitutionality
of the entire Internet disclosure provision.
¶ 18 We observe that the circuit court specifically found that the Internet disclosure
provision was unconstitutional both on its face and as applied to defendant. An “as
applied” challenge requires the challenging party to show that a statute is
unconstitutional as it applies to him or her. People v. Garvin, 219 Ill. 2d 104, 117
(2006). Thus, the particular facts and circumstances surrounding the challenging
party become relevant. In re M.A., 2015 IL 118049, ¶¶ 39-40; Napleton v. Village
of Hinsdale, 229 Ill. 2d 296, 305-06 (2008).
¶ 19 However, in the case at bar, the circuit court held no evidentiary hearing and
made no findings of fact. In such a factual vacuum, a court is not capable of making
an “as applied” determination of unconstitutionality. Without an evidentiary
record, any finding that a statute is unconstitutional “as applied” is premature, and
the constitutional challenge must be facial. People v. Rizzo, 2016 IL 118599, ¶ 26;
In re Parentage of John M., 212 Ill. 2d 253, 268 (2004) (citing Reno v. Flores, 507
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U.S. 292, 300-01 (1993)).
¶ 20 B. First Amendment Overbreadth
¶ 21 We now address whether section 3(a) of the Registration Act violates the first
amendment by requiring a sex offender to disclose his or her Internet identities and
websites (730 ILCS 150/3(a) (West 2014)). The constitutionality of a statute is a
question of law that we review de novo. All statutes are presumed to be
constitutional. The party challenging the constitutionality of a statute has the
burden of clearly establishing its invalidity. A court must construe a statute so as to
uphold its constitutionality, if reasonably possible. M.A., 2015 IL 118049, ¶ 21;
John M., 212 Ill. 2d at 265-66; People v. Malchow, 193 Ill. 2d 413, 418 (2000).
¶ 22 The first amendment right to freedom of speech includes the right to publish
and distribute writings while remaining anonymous. McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 342 (1995); Talley v. California, 362 U.S. 60, 64-65
(1960). “Anonymity is a shield from the tyranny of the majority. [Citation.] It thus
exemplifies the purpose 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.” McIntyre, 514 U.S. at 357.
¶ 23 First amendment protections for speech extend fully to communications made
through the medium of the Internet. “Through the use of chat rooms, any person
with a phone line can become a town crier with a voice that resonates farther than it
could from any soapbox. Through the use of Web pages, mail exploders, and
newsgroups, the same individual can become a pamphleteer. *** ‘[T]he content on
the Internet is as diverse as human thought.’ ” Reno v. American Civil Liberties
Union, 521 U.S. 844, 870 (1997) (quoting American Civil Liberties Union v. Reno,
929 F. Supp. 824, 842 (E.D. Pa. 1996)). Thus, we agree with our appellate court
that the first amendment right to speak anonymously extends to those expressing
views on the Internet. Hadley v. Subscriber Doe, 2014 IL App (2d) 130489, ¶ 16;
Stone v. Paddock Publications, Inc., 2011 IL App (1st) 093386, ¶ 15; see also
Ghanam v. Does, 845 N.W.2d 128, 137 (Mich. Ct. App. 2014); Solers, Inc. v. Doe,
977 A.2d 941, 950-51 (D.C. 2009); Independent Newspapers, Inc. v. Brodie, 966
A.2d 432, 440-42 (Md. 2009); Mobilisa, Inc. v. Doe 1, 170 P.3d 712, 717 (Ariz. Ct.
App. 2007). Nevertheless, “it is well understood that the right of free speech is not
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absolute at all times and under all circumstances.” Chaplinsky v. New Hampshire,
315 U.S. 568, 571 (1942). It follows that the right to anonymous speech, including
anonymous Internet speech, is not absolute. Ghanam, 845 N.W.2d at 137; Solers,
Inc., 977 A.2d at 951.
¶ 24 In a typical facial challenge, a defendant would have to establish that there is no
set of circumstances under which the statute would be valid. The fact that the
statute could be found unconstitutional under some circumstances would not
establish its facial invalidity. M.A., 2015 IL 118049, ¶ 39; John M., 212 Ill. 2d at
269. However, as earlier discussed, a facial challenge based on first amendment
overbreadth is provided out of concern that the threat of enforcement of an
overbroad law may chill or deter constitutionally protected speech, especially when
the statute imposes criminal penalties. Hicks, 539 U.S. at 119; People v. Clark,
2014 IL 115776, ¶ 11; People v. Bailey, 167 Ill. 2d 210, 226 (1995). Yet,
invalidating a law that in some of its applications is perfectly constitutional has
harmful social costs. Recognizing that overbreadth invalidation is “strong
medicine,” a law may be invalidated as overbroad only if a substantial number of its
applications to protected speech are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep. United States v. Williams, 553 U.S. 285, 292-93
(2008); Hicks, 539 U.S. at 119-20; People v. Williams, 235 Ill. 2d 178, 199-200
(2009).
¶ 25 We first construe the challenged statute. A court cannot determine whether a
statute reaches too far without first knowing what the statute covers. United States
v. Stevens, 559 U.S. 460, 474 (2010); People v. Alexander, 204 Ill. 2d 472, 485
(2003); Bailey, 167 Ill. 2d at 226. The Registration Act and the Notification Law
“operate in tandem, providing a comprehensive scheme for the registration of
Illinois sex offenders and the dissemination of information about these offenders to
the public.” People v. Cornelius, 213 Ill. 2d 178, 181 (2004) (citing Malchow, 193
Ill. 2d at 416). “Our primary objective in construing a statutory scheme is to
ascertain and give effect to the intent of the legislature.” People v. Boyce, 2015 IL
117108, ¶ 15; see People ex rel. Scott v. Illinois Racing Board, 54 Ill. 2d 569, 577
(1973) (stating that two statutes were “part of a comprehensive statutory plan ***
and their provisions should be viewed as integral parts of a whole”). The most
reliable indicator of legislative intent is the language of the statute, given its plain
and ordinary meaning. A court must view the statute as a whole, construing words
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and phrases in light of other relevant statutory provisions and not in isolation. Each
word, clause, and sentence of a statute must be given a reasonable meaning, if
possible, and should not be rendered superfluous. The court may consider the
reason for the law, the problems sought to be remedied, the purposes to be
achieved, and the consequences of construing the statute one way or another. Also,
a court presumes that the legislature did not intend to create absurd, inconvenient,
or unjust results. People v. Hunter, 2013 IL 114100, ¶ 13 (and cases cited therein).
¶ 26 The Registration Act was enacted in 1986.4 All sex offenders, as defined by
section 2 of the Registration Act (730 ILCS 150/2 (West 2014)), must register in
person with local law enforcement officials and “provide accurate information as
required by the Department of State Police.” 730 ILCS 150/3(a) (West 2014). Prior
to 2007, this information disclosed only the sex offender’s actual identity and
physical whereabouts. However, a 2007 amendment expanded this information to
include a sex offender’s Internet identity and websites. Pub. Act 95-229 (eff. Aug.
16, 2007) (amending 730 ILCS 150/3(a) (West 2006)). Section 3(a) currently
provides in pertinent part:
“Such information shall include a current photograph, current address, current
place of employment, the sex offender’s *** telephone number, including
cellular telephone number, the employer’s telephone number, school attended,
all e-mail addresses, instant messaging identities, chat room identities, and
other Internet communications identities that the sex offender uses or plans to
use, all Uniform Resource Locators (URLs) registered or used by the sex
offender, all blogs and other Internet sites maintained by the sex offender or to
which the sex offender has uploaded any content or posted any messages or
information ***. The information shall also include *** the county of
conviction, license plate numbers for every vehicle registered in the name of the
sex offender, the age of the sex offender at the time of the commission of the
offense, the age of the victim at the time of the commission of the offense, and
any distinguishing marks located on the body of the sex offender.” (Emphasis
added.) 730 ILCS 150/3(a) (West 2014).
4
The statute was originally titled the Habitual Child Sex Offender Registration Act (Ill.
Rev. Stat. 1987, ch. 38, ¶ 221 et seq.). A 1996 amendment gave the statute its current title
(730 ILCS 150/1 et seq. (West 1996)).
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Further, a sex offender “shall report in person to the appropriate law enforcement
agency with whom he or she last registered within one year from the date of last
registration and every year thereafter and at such other times at the request of the
law enforcement agency not to exceed 4 times a year.” 730 ILCS 150/6 (West
2014). With certain exceptions not relevant in this case, a sex offender must register
for a 10-year period. 730 ILCS 150/7 (West 2014). A sex offender “who knowingly
or wilfully gives material information required by [the Registration Act] that is
false is guilty of a Class 3 felony.” 730 ILCS 150/10 (West 2014).
¶ 27 A sex offender who is subject to the Registration Act “is, in turn, also subject to
the provisions of the Notification Law.” Cornelius, 213 Ill. 2d at 182. Enacted in
1995 (730 ILCS 152/101 et seq. (West 1996)), the Notification Law requires the
Illinois State Police to maintain a sex offender database that identifies sex offenders
and makes information about them available to the persons that the Law specifies.
730 ILCS 152/115(a) (West 2014). Law enforcement officials must disclose the
above-quoted information required under section 3(a) of the Registration Act to the
following county entities: institutions of higher education, public school boards,
child care facilities, libraries, public housing agencies, the Illinois Department of
Children and Family Services, social service agencies providing services to minors,
and volunteer organizations providing services to minors. Also, the above-quoted
information must be disclosed to any victims of any sex offenses, not only the
victim of the sex offense for which the sex offender had been convicted. 730 ILCS
152/120(a) (West 2014) (counties except Cook County). Law enforcement officials
may disclose, in their discretion, this information “to any person likely to encounter
a sex offender.” 730 ILCS 152/120(b) (West 2014). For all other members of the
public, this information must be made available upon request (730 ILCS
152/120(c) (West 2014)) and may be placed “on the Internet or in other media.”
730 ILCS 152/120(d) (West 2014). Further, the Illinois State Police must maintain
an Internet website that makes sex offenders’ registration information available to
the public. 730 ILCS 152/115(b) (West 2014).
¶ 28 However, dissemination of information regarding juvenile sex offenders is
limited to any individual “when that person’s safety may be compromised for some
reason related to the juvenile sex offender.” 730 ILCS 152/121(a) (West 2014).
“Public information concerning juvenile sex offenders thus is much more restricted
than information concerning adult sex offenders.” J.W., 204 Ill. 2d at 75. Also, if
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the juvenile sex offender is enrolled in school, the local law enforcement agency
shall provide a copy of the sex offender registration form only to that school’s
principal, chief administrative officer, or guidance counselor. The registration
information must be kept separate from the juvenile sex offender’s other school
records. 730 ILCS 152/121(b) (West 2014). Accordingly, while the registry, as it
pertains to adults, “provides for wide dissemination of registration information to
the public,” a juvenile sex offender’s registration information is “available only to a
very limited group of people.” People ex rel. Birkett v. Konetski, 233 Ill. 2d 185,
203 (2009). Further, juvenile sex offenders may petition for termination of
registration two years after their initial registration. 730 ILCS 150/3-5(c) (West
2014).5
¶ 29 We next address whether this statutory scheme warrants first amendment
scrutiny. There must be a realistic danger that the statute will significantly
compromise recognized first amendment rights. Members of the City Council v.
Taxpayers for Vincent, 466 U.S. 789, 801 (1984); Clark, 2014 IL 115776, ¶ 11;
People v. Haywood, 118 Ill. 2d 263, 275 (1987) (collecting cases). If the challenged
statute does not reach constitutionally protected conduct, our analysis ends. See,
e.g., Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S.
489, 495-96 (1982); Bailey, 167 Ill. 2d at 226-28; People v. Ryan, 117 Ill. 2d 28, 33
(1987).
¶ 30 Before this court, the State contends that the Internet disclosure provision does
not “unconstitutionally burden sex offenders’ First Amendment interest in
anonymity.” The State observes that the disseminated disclosure information
allows the public to identify the Internet forums in which the sex offender has
communicated within the offender’s previous registration period, up to and
including the day he or she registers. “Because section 3(a) largely requires only
retroactive disclosure,” the State argues, the Internet disclosure provision does not
“eliminate” a sex offender’s ability to speak anonymously online. Thus, according
to the State, the prospect that the disclosure provision will deter sex offenders from
speaking online “is too speculative to support defendant’s First Amendment
challenge.”
5
The record does not disclose whether defendant petitioned for termination.
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¶ 31 We disagree. The State is correct that the disclosure provision does not force a
sex offender to reveal the information as a precondition to expression. Courts have
invalidated such statutes due to the resulting surrender of anonymity. See, e.g.,
Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S.
150, 165-68 (2002); Buckley v. American Constitutional Law Foundation, Inc., 525
U.S. 182, 198-200 (1999). However, “constitutional violations may arise from the
deterrent, or ‘chilling,’ effect of governmental regulations that fall short of a direct
prohibition against the exercise of First Amendment rights.” Laird v. Tatum, 408
U.S. 1, 11 (1972). Further, the State overlooks that anonymity protects unpopular
individuals from retaliation. McIntyre, 514 U.S. at 341-42, 357. Retaliation, by
definition, is “retroactive” in that it reacts to speech previously uttered. Thus, a
statute that operates retroactively can nonetheless unconstitutionally deter or chill
anonymous speech. Further, the Registration Act imposes criminal sanctions for
noncompliance, which additionally may cause persons whose expression is
constitutionally protected to refrain from exercising their rights. Gooding v.
Wilson, 405 U.S. 518, 521 (1972). We conclude that the Internet disclosure
provision impacts constitutionally protected conduct, and therefore, first
amendment scrutiny is warranted.
¶ 32 The parties next disagree on the appropriate level of scrutiny for the Internet
disclosure provision of section 3(a) of the Registration Act. Defendant and amici
contend that the disclosure provision is subject to strict judicial scrutiny.
Content-based laws are presumptively unconstitutional and may be justified only if
they survive so-called strict scrutiny, which requires a court to find that a restriction
is narrowly tailored to serve a compelling government interest. Reed v. Town of
Gilbert, 576 U.S. ___, ___, 135 S. Ct. 2218, 2226 (2015); Alexander, 204 Ill. 2d at
476. Government regulation of speech is content-based if a law applies to particular
speech because of the topic discussed or the idea or message conveyed. This
requires a court to first consider whether the face of the statute draws distinctions
based on the message a speaker conveys. If it does not, the court must next consider
whether the facially neutral statute cannot be justified without reference to the
content of the regulated speech, or if the government adopted the statute because of
disagreement with the message the speech conveys. If so, then the facially neutral
statute will be considered a content-based regulation of speech. Reed, 576 U.S. at
___, 135 S. Ct. at 2227-28 (and cases cited therein).
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¶ 33 In contrast, laws that are unrelated to the content of speech are subject to an
intermediate level of scrutiny because in most instances they pose a less substantial
risk of removing certain ideas or viewpoints from the public dialogue. Turner
Broadcasting System, Inc. v. Federal Communications Comm’n, 512 U.S. 622, 642
(1994). Generally, content-neutral laws impose burdens on speech without
reference to the ideas or views expressed. Id. at 643; Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989). To be content neutral, the government regulation of
expressive activity must be justified without reference to the content of the
regulated speech. Ward, 491 U.S. at 791. Indeed: “A regulation that serves
purposes unrelated to the content of the expression is deemed neutral, even if it has
an incidental effect on some speakers or messages but not others.” Id. So long as
speaker distinctions are not a subtle means of exercising a content preference, they
are not presumed invalid under the first amendment. Turner Broadcasting, 512
U.S. at 645.
¶ 34 In the case at bar, we agree with the State that the Internet disclosure provision
is properly subject to intermediate scrutiny. The provision is part of a statutory
scheme intended to prevent sex offenses against children and to protect the public.
The statutory scheme protects the public in two ways: it provides crucial
information to law enforcement agencies monitoring the movement of sex
offenders, and it disseminates the information to the public. Cornelius, 213 Ill. 2d at
194 (and cases cited therein). Admittedly, the provision does single out sex
offenders as a category of speakers. However, the face of the provision makes no
reference to, and the purpose of the provision has nothing to do with, the content of
their speech.
¶ 35 Defendant concedes that the Internet disclosure provision “does not directly
ban any speech.” However, according to defendant, “if the hostility of the public
against scarlet-letter-tagged sex offenders who speak on the Internet drives the
speakers away, into silence, the effect is the same: the outcome looks like a ban.”
We cannot agree. “The purpose and the principal effect of notification are to inform
the public for its own safety, not to humiliate the offender. Widespread public
access is necessary for the efficacy of the scheme, and the attendant humiliation is
but a collateral consequence of a valid regulation.” Smith v. Doe, 538 U.S. 84, 99
(2003). Although the public availability of the website information may have a
lasting and painful impact on sex offenders, these consequences flow not from the
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statutory registration and notification scheme but from the fact of conviction,
which is already a matter of public record. See id. at 103. Therefore, we conclude
that the disclosure provision is content neutral and, accordingly, is subject to
intermediate scrutiny.
¶ 36 In the first amendment speech context, intermediate scrutiny is articulated in
several similar forms. Generally, to survive intermediate scrutiny, a content-neutral
regulation of protected speech (1) must serve or advance a substantial
governmental interest unrelated to the suppression of free speech and (2) must not
burden substantially more speech than necessary to further that interest—or in
other words, it must be narrowly tailored to serve that interest without
unnecessarily interfering with first amendment freedoms. See Turner
Broadcasting, 512 U.S. at 662; Members of the City Council, 466 U.S. at 804-05.
¶ 37 The State asserts that the purpose of the Internet disclosure provision “is to
protect the public from the danger of recidivist sex offenders, which is a substantial
government interest.” Defendant and amici are correct to agree that this is a
legitimate interest. Generally, “reducing crime is a substantial government
interest.” City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 435 (2002).
More particularly: “The prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing importance.” New York v. Ferber,
458 U.S. 747, 757 (1982); accord People v. Huddleston, 212 Ill. 2d 107, 132-33
(2004) (and cases cited therein). “Although there is considerable debate over the
degree to which treatment of sex offenders may be effective, it is clear that state
legislatures may respond to what they reasonably perceive as a ‘substantial risk of
recidivism.’ ” (Emphasis in original.) Huddleston, 212 Ill. 2d at 138 (quoting
Smith, 538 U.S. at 103). Since 1996, every state in the nation has had a law
providing for mandatory registration of sex offenders and corresponding
community notification. Smith, 538 U.S. at 89-90. Thus, the remaining issue is
whether the disclosure provision advances this interest in conformance with first
amendment principles.
¶ 38 Defendant and amici contend that the statutory scheme for Internet disclosure
deters or chills substantially more speech than is necessary to further the
governmental interest. For example, defendant posits that juvenile sex offenders
“have a low risk of reoffending and a high potential for rehabilitation due to their
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continuing brain development.” Therefore, defendant argues, the application of the
disclosure provision to juvenile sex offenders “renders it substantially overbroad”
in violation of the first amendment. However, as we earlier explained, public
information regarding juvenile sex offenders is much more restricted than
information regarding adult sex offenders and is available only to a very limited
group of people. See Konetski, 233 Ill. 2d at 203; J.W., 204 Ill. 2d at 75. Further,
juvenile sex offenders can petition for termination of registration after two years.
730 ILCS 150/3-5(c) (West 2014). This statutory qualification for juvenile sex
offenders shows the legislative intent to avoid burdening substantially more speech
than necessary to further its governmental interest.
¶ 39 Defendant next argues that, “[b]eyond the issue of juvenile offenders,” the
Internet disclosure provision nonetheless “applies to far too many people, in
general.” Defendant argues that the provision applies to all sex offenders “without
conducting any individualized risk assessment, so that sex offenders with no risk to
reoffend are included alongside high-risk offenders. Besides being poor policy in
general, this makes the speech burdens at issue here dramatically overbroad.”
Citing Whole Woman’s Health v. Hellerstedt, 579 U.S. ___, ___, 136 S. Ct. 2292,
2310 (2016), defendant contends that this court has an independent duty to assess
this issue while engaging in our constitutional analysis.
¶ 40 We reject defendant’s characterization of the Internet disclosure provision as
“poor policy.” “Our role is not to determine how wise legislation may be, but rather
to determine its constitutionality.” People v. J.S., 103 Ill. 2d 395, 407 (1984).
Exercising our independent judgment of the facts bearing on an issue of
constitutional law, it is our task in the end to decide whether the legislature has
violated the constitution. Whole Woman’s Health, 579 U.S. at ___, 136 S. Ct. at
2310; Sable Communications of California, Inc. v. Federal Communications
Comm’n, 492 U.S. 115, 129 (1989). Where a party’s objections are essentially
questions of policy, they are more appropriately directed to the legislature than to
this court. In re A.A., 2015 IL 118605, ¶ 27.
¶ 41 Regarding the lack of an individualized risk assessment for sex offenders, the
legislature is entitled to “conclude that a conviction for a sex offense provides
evidence of substantial risk of recidivism.” Smith, 538 U.S. at 103; accord
Huddleston, 212 Ill. 2d at 138. Although we exercise independent judgment on
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issues of constitutional law, the legislature is in a better position than the judiciary
to gather and evaluate data bearing on complex problems. Alameda Books, 535
U.S. at 440; Turner Broadcasting, 512 U.S. at 665-66 (opinion of Kennedy, J.,
joined by Rehnquist, C.J., and Blackmun and Souter, JJ.).
¶ 42 Further, it must be remembered that under the narrow-tailoring requirement of
intermediate scrutiny, the content-neutral speech regulation need not be the least
restrictive or intrusive means of advancing the government’s content-neutral
interest. Rather, the narrow-tailoring requirement is satisfied so long as the law
promotes a substantial governmental interest that would be achieved less
effectively absent the law. Turner Broadcasting, 512 U.S. at 662; Ward, 491 U.S.
at 798-99. Here, it is undeniable that the Internet disclosure provision directly and
effectively serves the State’s substantial interest in protecting the public from
recidivist sex offenders. Absent this provision, this interest would be served less
well. See Ward, 491 U.S. at 800.
¶ 43 Defendant also argues that the Internet disclosure provision applies “to too
much speech.” In declaring the provision unconstitutional, the circuit court found
that the provision “has no limitations on the type of speech or communication
which the offender is required to report and register, regardless of whether that
speech is in any way related to the legitimate purpose” of the provision. According
to defendant, the “immense sweep” of the provision goes “beyond the State’s
purpose of protecting the public from potential sex offenses: the State’s purpose is a
needle in a haystack of burdened speech.”
¶ 44 We disagree. It must be remembered that under intermediate scrutiny, a
content-neutral statute is not overbroad when it burdens speech but only when it
burdens substantially more speech than necessary to advance its substantial
governmental interest. Turner Broadcasting, 512 U.S. at 662; Members of the City
Council, 466 U.S. at 804-05. Similarly, first amendment overbreadth is ultimately
found only when a substantial number of a statute’s applications to protected
speech are unconstitutional in relation to the statute’s plainly legitimate sweep.
Hicks, 539 U.S. at 119-20; Broadrick, 413 U.S. at 612-13. Thus, whether a
statutory standard produces overbreadth requiring invalidation of the statute may
depend on the relative breadth of the statute’s coverage. See Ashcroft v. American
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Civil Liberties Union, 535 U.S. 564, 592 (2002) (Kennedy, J., concurring in the
judgment, joined by Souter and Ginsburg, JJ.).
¶ 45 In the case at bar, we conclude that the Internet disclosure provision advances
the substantial governmental interest of preventing sex offenses against children
and protecting the public from the danger of recidivist sex offenders. The
disclosure provision identifies the locations on the Internet to which the sex
offender has transferred expressive material from his computer or has otherwise
engaged in communication. These disclosures empower the public, if it wishes, to
make the informed decision to avoid such interactions. The information required
for the public to protect itself is broad because any communication by a sex
offender with the public is related to the statutory purpose.
¶ 46 We observe that federal district courts have declared sex offender Internet
disclosure requirements overbroad. In Doe v. Nebraska, 898 F. Supp. 2d 1086,
1121 (D. Neb. 2012), the court opined: “Blogs frequently, and perhaps mostly,
involve discussion of matters of public concern. Blogs are by their nature open to
the public and pose no threat to children. *** A site publicly available on the
Internet poses no threat to children—after all, every police officer in the world can
see it.” Similarly, in White v. Baker, 696 F. Supp. 2d 1289, 1310 (N.D. Ga. 2010),
the court opined:
“This internet communication form does not reasonably present a vehicle by
which a sex offender can entice a child to have illicit sex. *** In the Court’s
experience, these communications are those that occur privately in direct email
transmissions *** and in instant messages. They generally do not occur in
communications that are posted publicly on sites dedicated to discussion of
public, political, and social issues.”
As seen, these courts failed to recognize the breadth necessary to protect the public.
¶ 47 Additionally, the court in Doe v. Harris, 772 F.3d 563, 578-82 (9th Cir. 2014),
found that the California Internet disclosure requirement was overbroad because
public disclosure and notification would chill speech. However, the court failed to
engage in the comparative analysis of whether the chilling effect was substantially
broader than that required by the statutory purpose.
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¶ 48 Also, despite its plainly legitimate sweep, the Internet disclosure provision is
tailored to avoid chilling more speech than necessary, or in other words, to lessen
the number of unconstitutional applications. Initially, the provision does not require
disclosure of individuals with whom sex offenders interact, if any. Further, as we
earlier observed, the provision does not operate as a prior restraint. Rather, it
requires the sex offender to disclose his or her Internet identities and the websites to
which he or she uploaded content or posted messages or information during the
previous registration period up to and including the day he or she registers. While
this retroactive operation does not remove the provision from first amendment
scrutiny, it certainly constitutes an example of narrow tailoring. See Doe v.
Shurtleff, 628 F.3d 1217, 1225 (10th Cir. 2010) (upholding Utah’s sex offender
Internet disclosure statute against first amendment overbreadth challenge). Further,
the provision requires disclosure only of Internet identities and websites through
which a sex offender has communicated with others. Thus, the legislature “did no
more than eliminate the exact source of the evil it sought to remedy.” Members of
the City Council, 466 U.S. at 808. Indeed, any attempt to more narrowly tailor the
disclosure provision to exclude “innocent” subjects, whatever they may be and
however chosen, would defeat the purpose of the provision.
¶ 49 We hold that the Internet disclosure provision survives intermediate scrutiny
because it advances a substantial governmental interest without chilling more
speech than necessary. Therefore, defendant has failed to establish that the Internet
disclosure provision of section 3(a) of the Registration Act is facially
unconstitutional because it is substantially overbroad in violation of the first
amendment.
¶ 50 III. CONCLUSION
¶ 51 For the foregoing reasons, the order of the circuit court of McLean County is
reversed, and the cause is remanded to the circuit court for further proceedings.
¶ 52 Reversed.
¶ 53 Cause remanded.
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