[David Post] A setback for First Amendment protection for anonymous speech

Continuing the one-step-forward, one-step-backward pattern that has characterized the cases examining the constitutionality of state sex offender registry statutes, the Illinois Supreme Court has upheld the provisions of the Illinois sex offender statute compelling disclosure of all “Internet identifiers” just a few weeks after the district court in Florida struck down, on First Amendment grounds, a virtually identical provision in the Florida statute.

Here’s the background: Mark Minnis was convicted of “criminal sexual abuse,” a misdemeanor, in 2010; he was 16 years old at the time, and his conviction was based on his having had sexual relations with a 14-year-old girl. He was sentenced to 12 months probation, which he completed without incident.

His conviction, however, had much more serious and lasting consequences — consequences that may follow him for the remainder of his life — because it placed him on the Illinois sex offender registry. Individuals on the Illinois registry, like registrants in most of the 50 states, have to disclose the following information to state law enforcement officials:

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; [and]

all blogs and other Internet sites … to which the sex offender has uploaded any content or posted any messages or information ….”

This information is then made available to the public:

“Law enforcement officials must disclose [the identifier information] 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. For all other members of the public, this information must be made available upon request and may be placed ‘on the Internet or in other media.’ Further, the Illinois State Police must maintain an Internet website that makes sex offenders’ registration information available to the public.”

Minnis registered two email identifiers, along with his Facebook username, in 2011; in his 2014 registration, however, he omitted the Facebook identifier. Police officers, having “viewed [his] publicly accessible Facebook profile online [and] observed that he changed his Facebook cover photo only one month prior to his registration,” charged him with violating the Internet identifier disclosure provision of the statute (a felony, punishable by 1 year in prison).

Minnis challenged the statute on the grounds that it unconstitutionally abridged his right, protected under the First Amendment, to speak anonymously. The state appellate court court agreed, holding that the Internet disclosure provision was unconstitutional both on its face and as applied to defendant, but the Illinois Supreme Court overturned that decision and upheld the statute.*

* This case is a close cousin of the case (North Carolina v. Packingham) that, as Eugene recently noted, will be heard this term by the Supreme Court. Both cases involve a First Amendment challenge to a state sex offender registry statute. But the two challenges have different legal foundations; while both statutes compel the disclosure of Internet identifiers, the North Carolina statute additionally prohibits registrants from accessing any social media websites that allow persons under the age of 18 to open accounts or post messages, and the North Carolina case turns on that provision, rather than the compelled disclosure provision at issue in the Illinois case.

The court paid the usual deep-toned lip service to the importance of protecting anonymous speech — “The first amendment right to freedom of speech includes the right to publish and distribute writings while remaining anonymous … Anonymity is a shield from the tyranny of the majority [and] 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” — while simultaneously demonstrating just how weak a reed that protection really is.

The court applied the decidedly weak tea of “intermediate scrutiny” to the Internet disclosure provision — reversible error No. 1** — under which the government need only demonstrate t