PRELIMINARY/WORKSHOP DRAFT - 3/31/16

PREPARED FOR YALE FREEDOM OF EXPRESSION SCHOLARS CONFERENCE, 4/1/16

Sex Offenders, Anonymous Internet Speech, and the Constitution
David Post*/Annemarie Bridy**
Outline:
I.

Introduction

II.

The SORNA identity disclosure rules

A. Federal Law
B. State Law

III.

The emerging constitutional doctrine

A. Content-neutrality and intermediate scrutiny
B. Speaker discrimination
C. Public disclosure and the nature of anonymity

IV.

Implications
**********

I. Introduction
Last year, at this conference, Prof. Michael Froomkin gave a rather gloomy
assessment of the prospects for retaining substantial capabilities for anonymous
electronic communication.1 He pointed to increasingly sophisticated, and more
pervasive, governmental surveillance activities, to the development of new
identification technologies, and to certain commercial and regulatory incentives, all
of which have already made it difficult for anyone other than the most sophisticated
users to remain effectively anonymous. He described a world in which the abolition
of online anonymity is now a real possibility, both technically and legally, and he went
on to explain why, as he put it, that would be unfortunate.

Professor (ret.), Temple University Law School; Contributor, Volokh Conspiracy. David.G.Post@gmail.com.
Professor, Univ. of Idaho College of Law. Annemarie.Bridy@gmail.com.
1
A. Michael Froomkin, Lessons Learned Too Well: Anonymity in a Time of Surveillance, available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1930017.
**

There was, however, one bright spot in the legal and regulatory landscape that
Froomkin surveyed: strong constitutional protection - in the U.S., at least - for
anonymous communications. In the United States, he wrote,
. . . the government has not sought to make anonymity illegal or to require
identification directly. Indeed, a legal requirement that persons identify
themselves online would not only be controversial but would likely be
unconstitutional. . . .
As regards U.S. law, the constitutional case is straightforward: It is settled
constitutional law that the rights to anonymous speech and association are key
protections for members of threatened minorities and unpopular organizations....
And there is also a line of cases starting with Talley v California, then McIntyre v
Ohio Elections Commn, and running through the more recent Watchtower Bible and
Tract Society, in which the Supreme Court has made it clear that there is a
sweeping constitutional right to anonymous religious and political speech. Any
wholesale bans on anonymous speech ... would reach this zone of core First
Amendment speech and are therefore unconstitutional - at least until the
doctrine bends.
But the news on this front, too, is rather more ominous and threatening than this
might make it appear. In a small and rather out-of-the-way corner of the legal universe one that is probably unfamiliar to many people interested in questions about
constitutional protection for anonymous Internet speech - the government has indeed
sought to make anonymity illegal and imposed legal requirements that individuals
identify themselves online. Wholesale bans on anonymous Internet speech are
already in place. And in a number of decisions, the courts have shown that the
constitutional case for their invalidity is neither settled nor straightforward, and that the
doctrine may indeed be bending in an unfavorable direction.
This paper surveys a line of constitutional anonymity doctrine that is
developing in connection with a complex federal and state regime (SORNA, for Sex
Offender Registration and Notification Acts) imposing identity disclosure
requirements on sex offenders defined broadly as all persons who have been
convicted of a criminal offense that has an element involving a sexual act or sexual

contact with another under federal or State law.2 Over 800,000 people (approximately
of whom were juveniles at the time of the previous conviction) currently fall into this
category.
SORNA requires these sex offenders to register with local law enforcement
authorities, and to reveal in their registration documentation all of the Internet
identifiers email addresses, social-networking handles, website usernames, and all
other designations used for self-identification or routing in Internet communication or
posting that they use or will use.3 Failure to comply with this disclosure
requirement which will last, for many of the individuals on whom it is imposed, for
their entire lifetime is a felony criminal offense (under both federal and State law).
A small but growing body of law challenging the constitutionality of these
requirements has developed, and theres good news and bad news for the constitutional
right to speak anonymously. The bad news is that a number of cases have upheld the
disclosure requirements against constitutional challenge, and perhaps more
worrisome that even those which have struck them down have done so in a manner
that may provide little comfort to those seeking robust constitutional protection for
anonymous speech.
The good news is that litigation is ongoing, the doctrine is very much in flux, and
many opportunities present themselves to push this developing law onto a more
reasonable path.
II. The SORNA identity disclosure rules
The legal regime governing the rights and obligations of persons previously
convicted for sex-related offenses is staggeringly complex, involving a bewildering
2

42 USC 16911(1). The definition includes all sexual offenses whose elements involve: (i) any type or degree of
genital, oral, or anal penetration, or (ii) any sexual touching of or contact with a persons body, either directly or
through the clothing. DOJ National Guidelines For Sex Offender Registration and Notification (the DOJ
Guidelines), 73 Federal Register 128 (July 2, 2008), pp.38030-38070, available at
http://www.ojp.usdoj.gov/smart/pdfs/fr_2008_07_02.pdf
3

42 USC 16915a(e)(2). The Internet identifier information is in addition to a great deal of other identifying
information, including name, address, Social Security number, place of employment, license plate numbers, etc.,
that must be included in the offenders registration documentation. See 42 USC 16914.

array of federal and state statutes. While sex offender registration, and regulation of sex
offender conduct, is largely a matter of local (State) law, the federal government does
play a critical organizing, and coordinating, role.
A. FEDERAL LAW The federal Sex Offender Registration and Notification Act of 20064
(SORNA) imposes obligations both on individuals and on States.5
1. Registration. The basic obligation imposed by SORNA on individual sex
offenders (as defined see below) is that they register [with the State Registry] in
each jurisdiction where the offender resides, where the offender is an employee, and
where the offender is a student.6 The following information must be included in the
registration (and must be kept current and up-to-date):
The sex offender shall provide the following information to the appropriate
official for inclusion in the sex offender registry:
(1) The name of the sex offender (including any alias used by the individual).
(2) The Social Security number of the sex offender.
(3) The address of each residence at which the sex offender resides or will reside.
(4) The name and address of any place where the sex offender is an employee or
will be an employee.
(5) The name and address of any place where the sex offender is a student or will
be a student.
(6) The license plate number and a description of any vehicle owned or operated
by the sex offender.
(7) Any other information required by the Attorney General.7
Pursuant to a 2008 amendment (the Keeping the Internet Devoid of Sexual
Predators (KIDS) Act of 20088), sex offenders must also provide all Internet identifiers
4

42 USCA 16901 et seq, available here: http://www.ojp.usdoj.gov/smart/pdfs/42_usc_index.pdf, was enacted on

July 27, 2006 as Title I of the Adam Walsh Child Protection and Safety Act of 2006, and is the most recent of many
congressional efforts to set minimum standards for jurisdictions to implement in their sex offender registration or
notification systems. See DOJ, Sex Offender Registration and Notification in the United States: Current Case Law
and Issues, (Sept. 2014), available at http://www.smart.gov/caselaw/handbook_sept2014.pdf.
5

SORNA imposes these obligations on DC, Guam, Puerto Rico, Guam, and federally-recognized Indian tribes as well
as on States; I will refer to all of these jurisdictions as States for convenience in this memo. See 42 USC 16911
(10).
6
7
8

42 USC 16913(a).
42 USC 16914.
42 USC 16915a-16915b; available here: http://www.ojp.usdoj.gov/smart/pdfs/kids_act_2008.pdf.

[of] any type that the Attorney General determines to be appropriate under that Act
including all electronic mail addresses and other designations used for selfidentification or routing in Internet communication or posting9 that the sex offender
uses or will use.10
Failure to comply with these registration requirements is a felony criminal offense
under federal law. See 18 USC 2250:
Whoever
(1) is required to register under [SORNA]; [and]
(2)
(A) is a sex offender as defined for the purposes of SORNA by
reason of a conviction under Federal law . . . or
(B) travels in interstate or foreign commerce, or enters or leaves, or
resides in, Indian country; and
(3) knowingly fails to register or update a registration as required by the
Sex Offender Registration and Notification Act;
shall be fined under this title or imprisoned not more than 10 years, or both.11
Failure to comply with the registration requirements is, additionally, a felony
criminal offense under State law; SORNA specifically requires that each State shall
provide a criminal penalty that includes a maximum term of imprisonment that is
greater than 1 year for failure of a sex offender to comply with SORNAs registration
requirements.12

42 USCA 16915a(e)(2).

10

42 USC 16915a(a). The DOJs 2008 National Guidelines For Sex Offender Registration and Notification (the
Guidelines), 73 Federal Register 128 (July 2, 2008), pp.38030-38070, available at
http://www.ojp.usdoj.gov/smart/pdfs/fr_2008_07_02.pdf, explain that name and aliases include any
designations or monikers used for self-identification in Internet communications or postings Id, at 38050. The
Guidelines further require that sex offenders must report all designations used by sex offenders for purposes of
routing or self-identification in Internet communications or postings to the sex offender registry, including e-mail
and instant messaging addresses, and that sex offenders must immediately report changes of such Internet
identifiers to the jurisdictions Id. at 38066.
11

18 USC 2250.

12

42 USC 16913(e). Its not quite correct to say that States are required to impose criminal penalties. SORNA
does not require States to implement any of its provisions; instead, it conditions federal funding on compliance:
States that fail to substantially implement SORNAs provisions shall not receive 10 percent of the funds that
would otherwise be allocated under the Omnibus Crime Control and Safe Streets Act of 1968. 42 USC 16925.

SORNA defines a sex offender as anyone who has been convicted of a sex
offense under federal, State, territorial, or tribal law.13 A sex offense is defined as a
criminal offense that has an element involving a sexual act or sexual contact with
another.14

13

14

42 USC 16911(1).
42 USC 16911(5). The full definition of sex offense reads as follows:
Generally. Except as limited by subparagraph (B) or (C), the term sex offense means
(i) a criminal offense that has an element involving a sexual act or sexual contact with another;
(ii) a criminal offense that is a specified offense against a minor;
(iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of title 18,
United States Code) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258),
or 117, of title 18, United States Code;
(iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public
Law 105-119 (10 U.S.C. 951 note); or
(v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).

Subparagraph (B) exempts foreign convictions that were not obtained with sufficient safeguards for
fundamental fairness and due process for the accused . . .
Subparagraph (C) exempts certain offenses involving consensual sexual conduct:
An offense involving consensual sexual conduct is not a sex offense for the purposes of this title if the
victim was an adult, unless the adult was under the custodial authority of the offender at the time of the
offense, or if the victim was at least 13 years old and the offender was not more than 4 years older than
the victim.
The DOJ SORNA Guidelines, at http://ojp.gov/smart/sorna.htm, list the following federal crimes as
encompassed within the category of a sex offense:
- 18 U.S.C. 1591 (Sex Trafficking of Children)
- 18 U.S.C. 2241 (Aggravated Sexual Abuse)
- 18 U.S.C. 2242 (Sexual Abuse)
- 18 U.S.C. 2243 (Sexual Abuse of a Minor or Ward)
- 18 U.S.C. 2244 (Abusive Sexual Contact)
- 18 U.S.C. 2245 (Offenses Resulting in Death)
- 18 U.S.C. 2251 (Sexual Exploitation of Children)
- 18 U.S.C. 2251A (Selling or Buying of Children)
- 18 U.S.C. 2252 (Material Involving the Sexual Exploitation of Minors)
- 18 U.S.C. 2252A (Material Containing Child Pornography)
- 18 U.S.C. 2252B (Misleading Domain Names on the Internet)
- 18 U.S.C. 2252C (Misleading Words or Digital Images on the Internet)
- 18 U.S.C. 2260 (Production of Sexually Explicit Depictions of a Minor for Import in to the United States)
- 18 U.S.C. 2421 (Transportation of a Minor for Illegal Sexual Activity)
- 18 U.S.C. 2422 (Coercion and Enticement of a Minor for Illegal Sexual Activity

Although the federal statute contains an exception for certain offenses involving
consensual sexual conduct, see note [14], individual States are free to include these
offenses on their list of registrable offenses.15
2. Notification
SORNA requires each State to maintain a jurisdiction-wide sex offender registry
(SOR) conforming to the requirements of this title.16 Each State shall ensure that the
registry includes certain specified pieces of information for each registrant
(corresponding to the information registrants are required to provide, including name,
physical description, arrest and conviction history, fingerprints, a DNA sample, and
any other information required by the Attorney General).17
Each State shall make information contained in its registry database available on
the Internet, in a manner that is readily accessible to all jurisdictions and to the public,
and it must maintain the Internet site in a manner that will permit the public to obtain

- 18 U.S.C. 2423 (Transportation of Minors for Illegal Sexual Activity, Travel With the Intent to Engage in
Illicit Sexual Conduct with a Minor, Engaging in Illicit Sexual Conduct in Foreign Places))
- 18 U.S.C. 2424 (Failure to File Factual Statement about an Alien Individual)
- 18 U.S.C. 2425 (Transmitting Information about a Minor to further Criminal Sexual Conduct)
15

See the DOJ Guidelines, at http://ojp.cov/smart/sorna.htm:

In all situations, jurisdictions have discretion to exceed the minimum standards of SORNA and require
registration upon convictions based on consensual sexual conduct.

16

42 USC 16912(a).

17

42 USC 16914(b) gives the full list:

The jurisdiction in which the sex offender registers shall ensure that the following information is included
in the registry for that sex offender: (1) A physical description of the sex offender. (2) The text of the
provision of law defining the criminal offense for which the sex offender is registered. (3) The criminal
history of the sex offender, including the date of all arrests and convictions; the status of parole,
probation, or supervised release; registration status; and the existence of any outstanding arrest warrants
for the sex offender. (4) A current photograph of the sex offender. (5) A set of fingerprints and palm prints
of the sex offender. (6) A DNA sample of the sex offender. (7) A photocopy of a valid driver's license or
identification card issued to the sex offender by a jurisdiction. (8) Any other information required by the
Attorney General.

relevant information for each sex offender by a single query for any given zip code or
geographic radius set by the user.18
In addition, States must provide the information in their SOR databases to:
the Attorney General (for inclusion in the National Sex Offender Registry
database),
law enforcement agencies, and each school and public housing agency, in
each area in which the individual resides, is an employee or is a student,
any agency responsible for conducting employment-related background
checks under the National Child Protection Act of 1993,
social service entities responsible for protecting minors in the child welfare
system,
volunteer organizations in which contact with minors or other vulnerable
individuals might occur, and
any organization, company, or individual who requests such notification
pursuant to procedures established by the jurisdiction.19
The Internet identifiers are specifically exempted from mandatory disclosure
on the publicly-accessible State registry database websites.20 This, however, does not
limit jurisdictions retention and use of sex offenders Internet identifier information for
purposes other than public disclosure, including submission of the information to the
national (non-public) databases of sex offender information, sharing of the information
with law enforcement and supervision agencies, and sharing of the information with
registration authorities in other jurisdictions, nor does it limit the discretion of
jurisdictions to include on their public Web sites functions by which members of the
public can ascertain whether a specified e-mail address or other Internet identifier is

18

42 USC 16918.

19

42 USC 16921.

20

42 USC 16915a(c) (the Attorney General shall exempt from disclosure the Internet identifier information
provided by registrants); 42 USC 16918(b)(4) (providing that states shall exempt from disclosure on the
publicly-accessible Internet database certain specified information, along with any other information exempted
by the Attorney General).

reported as that of a registered sex offender, or to disclose Internet identifier

information to any one by means other than public Web site posting.21
Finally, the KIDS Act requires the Attorney General to establish and maintain a
secure system that permits social networking websites22 to
(a) compare the information contained in the National Sex Offender Registry
with the Internet identifiers of users of the social networking websites,23 to
(b) view any Internet identifiers that match information in the Registry, and to
(c) obtain from the Attorney General information related to the identity of the
individual that has registered the matched Internet identifier . . . limited to the name,
sex, resident address, photograph, and physical description of the individual using the
matching identifier.24
B. STATE LAW Federal law thus encourages each State to set up a sex offender
registry and notification system (and all 50 States have done so), and to apply for
21

See The Supplemental Guidelines For Sex Offender Registration and Notification, 76 Federal Register 7
(January 11, 2011), at 1637, available at
http://www.ojp.usdoj.gov/smart/pdfs/SORNAFinalSuppGuidelines01_11_11.pdf.
The Wisconsin statute is illustrative and not atypical. As summarized by the court in Doe v. Raemisch:
Wis. Stat. 301.46 governs access to sex offender registry information. The statute requires [the
Wisconsin Department of Corrections] to immediately notify law enforcement agencies serving in the
community or county where a registered sex offender resides, works or attends school of the registrants
basic identifying information. The victim of the offenders crime, or the family of the victim, must be
notified, as well. Upon request, the information must also be provided to the police chief or sheriff of
other communities or counties. A police chief or sheriff may then provide such information to various
other entities such as schools, government agencies, licensed care and treatment providers, neighborhood
watch programs, Boy and Girl Scout groups and any other nonprofit approved by DOC. Wis. Stat.
301.46(4). In addition to the DOCs own website, a company called Family Watchdog, Inc., by agreement
with DOC, operates its own website which performs monitoring, mapping and tracking function on
registered sex offenders. After a one-time request is made to get alerts as to sex offenders, either
specifically by name or generally as a class, Family Watchdog automatically sends the requester alerts on
his or her computer, smartphone, or other text-capable electronic communication device. (emphasis
added)
22

A social networking website is defined as an Internet website -- (i) that allows users, through the creation of
web pages or profiles or by other means, to provide information about themselves that is available to the public or
to other users; and (ii) that offers a mechanism for communication with other users where such users are likely to
include a substantial number of minors; and (iii) whose primary purpose is to facilitate online social interactions . .
. 42 USC 16915a(e)(1).
23
42 USC 16915b(a)(1).
24
Id. at 16915b(a)(2).

certification from the DOJ that its registration and notification scheme complies with the
substantive terms of the federal statute.25 The DOJ has made it clear that it regards those
substantive terms as merely minimum standards; that is, a State system can be deemed
SORNA-compliant even if the State has chosen to impose additional registration
requirements on convicted sex offenders (or additional public/law enforcement
notification mechanisms),26 and many have done so for instance, by expanding the
category of offenses deemed to require registration,27 increasing the amount of time that
individuals are required to remain on the registry,28 or enlarging the scope of personal
information that registrants are required to disclose and update.29
25

As of 2013, 19 State SORNA systems have been deemed compliant with the federal statute. See GAO Report,
Sex Offender Registration And Notification Act: Jurisdictions Face Challenges to Implementing the Act, and
Stakeholders Report Positive and Negative Effects, (GAO-13-211, Feb 7, 2013), available at
http://www.gao.gov/products/GAO-13-211.
26
See DOJ, "Sex Offender Registration and Notification in the United States: Current Case Law and Issues" (Sept.
2014), available at http://www.smart.gov/caselaw/handbook_sept2014.pdf.
27
According to a 2007 Human Rights Watch survey, see No Easy Answers: Sex Offender Laws in the United
States, available at https://www.hrw.org/report/2007/09/11/no-easy-answers/sex-offender-laws-us, at least five
States require registration for adult prostitution-related offenses (Alabama, Michigan, Oregon, Tennessee, and
West Virginia); thirteen States require registration for public urination (Arizona, California, Connecticut, Georgia,
Idaho, Kentucky, Massachusetts, Michigan, New Hampshire, Oklahoma, South Carolina, Utah, and Vermont); at
least 29 states require registration for consensual sex between teenagers (Alabama, Alaska, Arizona, Arkansas,
Colorado, Connecticut, Florida, Indiana, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota,
Missouri, New Hampshire, New Jersey, North Carolina, North Dakota, Oklahoma, Rhode Island, South Carolina,
South Dakota, Tennessee, Texas, Utah, Washington, West Virginia, and Wisconsin) and at least 32 States require
registration for exposing genitals in public (Alabama, Arizona, Arkansas, California, Connecticut, Idaho, Illinois,
Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Mexico, North
Dakota, South Carolina, South Dakota, Tennessee, Texas, Vermont, and West Virginia).
28

According to the Human Rights Watch survey, see note 27, 17 States currently require lifetime registration for all
registrantsfrom the most minor offenders to the most serious, and two - Alabama and South Carolina - provide
no means by which a registrant might secure release from the registry requirement. In Alabama, for example, a
man convicted of soliciting an adult prostitute must register for life, with no way to obtain a release from the
registration requirements. The other 15 states allow some registrants to petition a court for removal from
registration requirements after living in the community offense-free for a specific number of years.
29

E.g., Alaska requires registrants to disclose the description, license numbers, and vehicle identification numbers
of motor vehicles the sex offender or child kidnapper has access to, regardless of whether that access is regular or
not . . . any identifying features of the sex offender or child kidnapper, anticipated changes of address, [and] a
statement concerning whether the offender or kidnapper has had treatment for a mental abnormality or
personality disorder since the date of conviction for an offense requiring registration under this chapter);
Connecticut requires documentation of any treatment received for mental abnormality or personality disorder;
Hawaii requires The actual address and telephone number where the covered offender is staying for a period of
more than ten days, if other than the stated residence; Names and, if known, actual business addresses of current
and known future employers and the starting and ending dates of any such employment; names and actual
addresses of current and known future educational institutions with which the covered offender is affiliated in any

10

In addition, while federal law imposes no additional disabilities on registrants

(other than the duty to register), States are free to do so, and virtually all have done so
with a vengeance. Depending on the State in question, registered sex offenders may be
(a) subject to a civil confinement regime that can keep them in custody at a treatment
facility upon the recommendation of a State-employed psychiatrist or psychologist30;
(b) prohibited from residing or working or, in some States, from merely setting foot31
in, or within specified distances of, schools, public parks, daycare facilities, libraries,
churches, or areas where minors congregate32; (c) prohibited from using the Internet
at all, or accessing/using specific Internet resources (e.g., social networking sites, instant
messaging systems, etc.)33; (d) prohibited in working in a long list of jobs, from working
in schools or child-care centers where they might have regular contact with minors, and
(e) subject to a chaotic mess of penalties that just seems crazy and random:
For instance, Massachusetts forbids sex offenders from being ice cream truck
vendors. Delaware doesnt allow felony sex offenders to be plumbers. Alaska
forbids felony sex offenders from being hearing aid dealers within five years of
an offense. In Kentucky, for 10 years after a felony sex offense, an offender cant
be a land surveyor. And for certain sexual offenses, New Hampshire forbids
working at an end stage renal disease dialysis center.34

way; [and] the year, make, model, color, and license number of all vehicles currently owned or operated by the
covered offender; New Hampshires registration law specifically requires that registrants provide local law
enforcement with, among other things, their address, employer, professional licenses, social security numbers,
landlord information, telephone numbers, and license plate numbers.
30

See the compilation Civil Commitment of Sex Offenders at

http://www.ndaa.org/pdf/Sex%20Offender%20Civil%20Commitment-April%202012.pdf.
31

See Illinois 720 I.L.C.S. 5/11-9.3 (West 2008).

32

See Validity of Statutes Imposing Residency Restrictions on Registered Sex Offenders, 25 A.L.R.6th 227
(collecting cases).
33

See Validity, Construction, and Application of State Sex Offender Statutes Prohibiting Use of Computers and
Internet as Conditions of Probation or Sentence, 89 A.L.R.6th 261 (collecting cases).
34

Not Wanted: Sex Offenders, available at

http://www.slate.com/articles/news_and_politics/jurisprudence/2014/08/several_states_ban_people_in_the_sex
_offender_registry_from_a_bizarre_list.html. See also Human Rights Watch report, supra note 27, at 81-90
(discussing employment restrictions).

11

III. The emerging constitutional doctrine

To review: As encouraged to do so by the federal SORNA statute, all 50 States
currently have in place a system under which individuals living or working in their
jurisdictions who have been previously convicted of a sex offense must inform State
law enforcement officials of all Internet identifiers that they use or will use. That
information (along with other personally identifying information, e.g., name,
photograph, and address) is shared with other State and federal law enforcement and
supervision agencies, which includes the DOJ and federal and state agencies
responsible for conducting employment-related background checks under the
National Child Protection Act of 1993 [or for] protecting minors in the child welfare
system, as well as with volunteer organizations in which contact with minors or other
vulnerable individuals might occur, and any organization, company, or individual
who requests such notification pursuant to procedures established by the jurisdiction.
Individuals who fail to provide, or provide timely updates for, those identifiers are
subject to substantial criminal penalties under both State and federal law.
One might be forgiven for thinking that a robust First Amendment right to
communicate anonymously, derived from a line of Supreme Court cases starting with
Talley v California35 and continuing through McIntyre v Ohio Elections Commn36 and the
more recent Watchtower Bible and Tract Society v. Vill. of Stratton37, would not
countenance a scheme under which almost a million U.S. citizens possessing the full
complement of constitutional rights38 are deprived of their ability to communicate
anonymously when using the medium through which a great deal of inter-personal
These additional disabilities raise very difficult and disturbing constitutional questions of their own, under the Due
Process, Equal Protection, and Ex Post Facto Clauses, which are outside the scope of this paper.
35

362 U.S. 60, 64-65 (1960).

514 U.S. 334 (1995).
37
536 U.S. 150 (2002).
38
The category of sex offenders, on whom the Internet identifier disclosure obligations are imposed, covers
individuals who have already served whatever punishment was imposed on them for their criminal activity. While
courts have held that prisoners [cite] and parolees/probationers [cite] (as well as foreign nationals, the mentally
incompetent, and others) may not enjoy the full panoply of constitutional protections, the sex offender registry
provisions apply, by design, to individuals who are, in the eyes of constitutional law at least, no different than
other US citizens.
36

12

communication takes place these days. At the very least, one would expect that the
government would bear a heavy burden, and would have to demonstrate that this
abridgement of a fundamental right was narrowly tailored in meaningful ways to
achieve some very important and otherwise-difficult-to-achieve governmental
objective.
Eleven courts have now considered the question, and they are fairly evenly split.
Six have struck down the Internet identifier requirements of their respective State
statutes on right to anonymity grounds:
Doe v. Harris, 772 F.3d 563 (9th Cir. 2014) (CA law)
Doe v. Marion Cnty., 705 F.3d 694 (7th Circ. 2013) (IN law)
Doe v. Nebraska, 898 F.Supp.2d 1086 (D. Neb. 2012) (NE law)
Doe v. Jindal, 853 F.Supp.2d 596 (D. La. 2012) (LA law)
White v. Baker, 696 F. Supp. 2d 1289 (N.D. Ga. 2010) (GA law)
State of Illinois v Minnis (IL Cir. Ct., July 7 2015) (IL law)
and five have upheld them:
Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010)) (UT law)
Doe v. Raemisch, 895 F. Supp. 2d 897 (E.D. Wis. 2012) (WI law)
Doe v. Snyder, 101 F. Supp. 3d 672 (E.D. Mich. 2015) [now on appeal, 6th Circuit]
(MI law)
Harris v. State, 985 N.E.2d 767 (Ind. App. 2013) (IN law)
Coppolino v. Comm'r of the Pa. State Police, 102 A.3d 1254 (Pa. Commw. Ct. 2014)
(PA law)
Aside from the disturbing implications of a process that produces results that are
indistinguishable from the results one would get by flipping an unbiased coin to decide
case outcome,39these results clearly suggest that there may be some serious cracks in the
wall of First Amendment protection for anonymous speech. What do those cracks look
like? Can they be repaired, and, if so, how?

39

See Gary Neustadter, Randomly Distributed Trial Court Justice: A Case Study and Siren from the Consumer
Bankruptcy World (January 25, 2016). American Bankruptcy Institute Law Review, Forthcoming; Santa Clara Univ.
Legal Studies Research Paper No. 1-16. Available at http://ssrn.com/abstract=2722054 (providing evidence of a
stunning and unacceptable level of randomly distributed justice at the trial court level in bankruptcy
proceedings); see also Post, Random Justice https://www.washingtonpost.com/news/volokhconspiracy/wp/2016/02/10/random-justice/.

13

1. Content-neutrality and intermediate scrutiny

In First Amendment litigation, of course, a great deal depends on formal
categorization and determining the level of scrutiny that courts will apply to the
challenged government action.40 In the SORNA cases referenced above, all courts
(except one, a district court opinion later vacated on other grounds41) have declined to
give the identifier disclosure provisions the highest level of First Amendment scrutiny.
Because the disclosure provisions are deemed content-neutral i.e., because all
Internet identifiers must be disclosed irrespective of the content of the speech to which
those identifiers might attach - they are examined under a lesser, more generous
intermediate standard, akin to that applied to time, place, and manner speech
restrictions: The government need only show that the restrictions are narrowly
tailored to serve the governments legitimate, content-neutral interests; that they do
not burden substantially more speech than necessary to further those interests, though
they need not be the least speech-restrictive means available for advancing the
governments interests; and that they leave open ample alternative channels of
communication.42
40

As my Con Law I professor, John Kramer, aptly put it many years ago, a great deal of constitutional litigation
turns entirely on the question of whether the government is required to demonstrate a reason, a good reason, or a
damned good reason, for doing whatever it was that it was doing.
Reed v. Town of Gilbert, 1135 S.Ct. 2218 (2015) may have altered this rather formal approach to First Amendment
questions, but we will not know that for some time. See _____.
41

Doe v. Shurtleff, 2008 WL 4427594 (D. Utah 2008), order vacated, 2009 WL 2601458 (D. Utah 2009), affd, 2010
WL 4188248 (10th Cir. 2010), opinion amended and superseded on rehg, 628 F.3d 1217 (10th Cir. 2010), cert.
denied, 131 S. Ct. 1617 (2011) and affd, 628 F.3d 1217 (10th Cir. 2010).
42

See, e.g., Doe v. Nebraska, 898 F. Supp. 2d 1086, ___ n. 7 (D. Neb. 2012) (because the disclosure requirement
applied regardless of content or viewpoint, they should be deemed content-neutral and subject to
intermediate scrutiny, under which it is immaterial that the governments interest might be adequately served by
some less-restrictive alternative, (citing Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)); Doe v. Harris, 772
F.3d 563 (9th Cir. 2014) (concluding that CA disclosure requirement is "content neutral because "[o]n its face, the
Act makes no reference to specific subject matters or viewpoints [and] does not prohibit registered sex offenders
from using particular websites, or any particular types of communication, but instead 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); Doe v. Marion County (Indiana disclosure requirement is "content neutral because it
restricts speech without reference to the expressions content," and therefore "must satisfy a variant of

14

The three foundational Supreme Court cases establishing a First Amendment

right to anonymous communication Talley, McIntyre, and Watchtower Bible were
somewhat opaque on the level-of-scrutiny question. The three cases do clearly establish
that the freedom of speech protected by the First Amendment includes a right to
speak without revealing ones name (to local authorities, or to the public at large).43 If, ,
therefore, the government requires individuals to reveal their identities as a condition
intermediate scrutiny"); Doe v. Snyder (same); Doe v. Shurtleff, 628 F.3d 1217 (10th Cir. 2010) (disclosure
requirement content-neutral because it "says nothing about the ideas or opinions that Mr. Doe may or may not
express, anonymously or otherwise" and is not "aimed at 'suppress[ing] the expression of unpopular views,' Giani,
199 F.3d at 1247, but rather it is directed towards aiding the police in solving crimes," and subject to intermediate
scrutiny); White v. Baker, 696 F. Supp. 2d 1289 (N.D. Ga. 2010) (holding that GA disclosure requirement was
content-neutral because it "'place[s] no restriction on -- and clearly do[es] not prohibit -- either a particular
viewpoint or any subject matter that may be discussed,' quoting Hill v. Colorado, 530 U.S. 703, 723 (2000), and
therefore subject to intermediate scrutiny); Harris v. State (same).
43

The cases also contained ringing and eloquent words about the values of anonymous speech:
It is offensive -- not only to the values protected by the First Amendment, but to the very notion
of a free society -- that in the context of everyday public discourse a citizen must first inform the
government of her desire to speak to her neighbors and then obtain a permit to do so. Even if
the issuance of permits by the mayor's office is a ministerial task that is performed promptly and
at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a
dramatic departure from our national heritage and constitutional tradition.

Watchtower Bible, 536 U.S. at 165-66.

Id. at ___.

If the exercise of the rights of free speech and free assembly cannot be made a crime, we do
not think this can be accomplished by the device of requiring previous registration as a condition
for exercising them and making such a condition the foundation for restraining in advance their
exercise and for imposing a penalty for violating such a restraining order. So long as no more is
involved than exercise of the rights of free speech and free assembly, it is immune to such a
restriction. . . . We think a requirement that one must register before he undertakes to make a
public speech to enlist support for a lawful movement is quite incompatible with the
requirements of the First Amendment.

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but
an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the
majority. See generally J. Mill, On Liberty and Considerations on Representative Government 1,
3--4. 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. The right to remain anonymous may be abused when it
shields fraudulent conduct. But . . . in general, our society accords greater weight to the value of
free speech than to the dangers of its misuse. See Abrams v. United States, 250 U.S. 616, 630-631, 63 L. Ed. 1173, 40 S. Ct. 17 (1919) (Holmes, J., dissenting).
McIntyre, 514 U.S. at ___.

15

of being allowed to speak, it must demonstrate some greater degree of tailoring of

means to ends than is ordinarily required, a more substantial nexus between the
interference and the governmental interest being pursued than, ordinarily, it must
show.44
In all three cases, the Court held that the disclosure requirement in question was
not sufficiently narrowly tailored to the governments stated interest.45 But it was not

44

See Talley, 362 U.S. at ___ (There can be no doubt that such an identification requirement would tend to
restrict freedom to distribute information and thereby freedom of expression); McIntyre, 514 U.S. at ___
(rejecting the reasonableness test applied by the Ohio Supreme Court:
The ordinary litigation test does not apply here. [The challenged statute] is a regulation of pure
speech. Moreover, even though this provision applies evenhandedly to advocates of differing
viewpoints, it is a direct regulation of the content of speech. . . . Our precedents thus make
abundantly clear that the Ohio Supreme Court applied a significantly more lenient standard than
is appropriate in a case of this kind.
45

Here the State says that this ordinance is aimed at the prevention of fraud, deceit, false
advertising, negligent use of words, obscenity, and libel, in that it will aid in the detection of
those responsible for spreading material of that character. But the ordinance is not so limited,
and I think it will not do for the State simply to say that the circulation of all anonymous handbills
must be suppressed in order to identify the distributors of those that may be of an obnoxious
character. In the absence of a more substantial showing as to Los Angeles' actual experience with
the distribution of obnoxious handbills, such a generality is for me too remote to furnish a
constitutionally acceptable justification for the deterrent effect on free speech which this allembracing ordinance is likely to have. (emphasis added)
Talley, 362 U.S. at ___ (Harlan, J. concurring).
As this case demonstrates, the prohibition encompasses documents that are not even arguably
false or misleading. It applies not only to the activities of candidates and their organized
supporters, but also to individuals acting independently and using only their own modest
resources. It applies not only to elections of public officers, but also to ballot issues that present
neither a substantial risk of libel nor any potential appearance of corrupt advantage. It applies
not only to leaflets distributed on the eve of an election, when the opportunity for reply is
limited, but also to those distributed months in advance. It applies no matter what the character
or strength of the author's interest in anonymity. Moreover, as this case also demonstrates, the
absence of the author's name on a document does not necessarily protect either that person or a
distributor of a forbidden document from being held responsible for compliance with the
Election Code. Nor has the State explained why it can more easily enforce the direct bans on
disseminating false documents against anonymous authors and distributors than against
wrongdoers who might use false names and addresses in an attempt to avoid detection. We
recognize that a State's enforcement interest might justify a more limited identification
requirement, but Ohio has shown scant cause for inhibiting the leafletting at issue here.

16

clear precisely how much more substantial that nexus needs to be to pass constitutional
muster, and the level of scrutiny that should be applied when the right to speak
anonymously has been abridged.46 This left something of a doctrinal vacuum, and the
lower courts are now filling it ill-advisedly, in our view with the kind of ad hoc
balancing that intermediate scrutiny entails.
There is, to begin with, a logical fallacy: Because content-based speech
discriminations get strict scrutiny, not-content-based speech discriminations must get
not-strict scrutiny. That does not follow, and leads to absurd results if taken at face
value. A law requiring, say, a pre-publication license for all newspapers that publish
Ohio has not shown that its interest in preventing the misuse of anonymous election-related
speech justifies a prohibition of all uses of that speech.
McIntyre, 514 U.S.at ___.
[A] requirement that one must register before he undertakes to make a public speech to enlist
support for a lawful movement is quite incompatible with the requirements of the First
Amendment. . . . The mere fact that the ordinance covers so much speech raises constitutional
concerns. . . . The ordinance may preclude [petition-circulators seeking signatures in face-to-face
interactions] from canvassing for unpopular causes. Such preclusion may well be justified in
some situations -- for example, by the special state interest in protecting the integrity of a ballotinitiative process, see ibid., or by the interest in preventing fraudulent commercial transactions.
The Village ordinance, however, sweeps more broadly, covering unpopular causes unrelated to
commercial transactions or to any special interest in protecting the electoral process.
Watchtower Bible, 536 U.S. at ___.
46

Talley was decided before the Court had formalized the analysis into different tiers of scrutiny; McIntyre applies
a form of exacting scrutiny to the Ohio statute in question, but appears to do so because the anonymity
restriction was coupled with a content-based discrimination aimed specifically at political speech:
The Ohio regulation also involved a content-based restriction on political speech . . . [T]he
category of covered documents is defined by their content -- only those publications containing
speech designed to influence the voters in an election need bear the required markings. . . .
[Ohio] cannot seek to punish fraud indirectly by indiscriminately outlawing a category of speech,
based on its content, with no necessary relationship to the danger sought to be prevented.
McIntyre, 535 U.S. at ___
And in Watchtower Bible, although the parties adamantly dispute[d] the question of what standard of review
[the Court] ought to use in assessing the constitutionality of the Village of Stratton ordinance under review, the
Court declared it unnecessary . . . to resolve that dispute . . . because the breadth of speech affected by the
ordinance and the nature of the regulation make it clear that the Court of Appeals erred in upholding it.
[The majority opinions in the latter two cases were both authored by Justice Stevens, whose opposition to the
formalization of the First Amendment inquiry is well-known]

17

information about the activities of labor unions, or about electoral politics, would
receive the strictest scrutiny; but that hardly implies that a (content-neutral) law
requiring all newspapers necessarily including those that publish information about
labor unions or electoral politics to obtain a pre-publication license should get less
exacting scrutiny. What sense does that make?47
The SORNA requirements may indeed be content-neutral, but that hardly
justifies giving them some lesser scrutiny; it would surely be an odd rule that would
give a higher degree of scrutiny on registration requirements covering a subset of speech
- e.g., only political speech, per McIntyre, or only commercial speech - than on those that
sweep more broadly to cover all speech (neutrally).48
The distinction between content-based and content-neutral speech restrictions is,
without question, a vital one for protecting speech against government censorship;
when a restriction raises the specter that the Government may effectively drive certain
ideas or viewpoints from the marketplace it must pass the most demanding
constitutional test . . . to ensure that the government has not regulated speech based on
hostilityor favoritismtowards the underlying message expressed.49 Governments
must not be allowed to choose which issues are worth discussing or debating.50
But the claim that the SORNA registration requirements are constitutionally
objectionable does not rest on the notion that the government has violated its obligation
to remain content- (and viewpoint-) neutral, unlawfully favoring some content over
47

This idea is often traced back to Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 643 (1994), where the Court said:
As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the
basis of the ideas or views expressed are content based. By contrast, laws that confer benefits or impose
burdens on speech without reference to the ideas or views expressed are in most instances content
neutral. (citations omitted)).

While that may be true as a general rule, it appears, in the SORNA cases, to have ossified into a hard-and-fast
requirement.
48
As noted above, the McIntyre Court gave the Ohio statute in question the most exacting scrutiny because it was
deemed content-based: But the Court said nothing to suggest that had it not been content-based had it covered,
for instance, all handbills as opposed to just those involved in election campaigns it would have received a lesser
degree of scrutiny. This is, however, how the lower courts have been reading the constitutional requirements.
49
Reed, 135 S.Ct at ___ (quoting R. A. V., 505 U. S., at 387, and Simon & Schuster, Inc. v. Members of N. Y. State
Crime Victims Bd., 502 U. S. 105 (1991)).
50
Police Dept of Chicago v. Mosley, 408 U.S. 92, 96 (1972)).

18

others and censoring disfavored messages; it rests on the notion that they are
objectionable because they eliminate the independent right to speak about any subject
anonymously, free of the fear of government surveillance.
Why should the right to speak anonymously be given this kind of second-class
status within the freedom of speech? Much of the variation in outcome in the SORNA
cases is due to the idiosyncratic judicial balancing of means and ends that intermediate
scrutiny invites; because the government need not show that the requirements are the
least speech-restrictive means of advancing the governments interests, some courts
have required the government to show virtually nothing in the way of tailoring of
means to ends beyond some plausible (though unsubstantiated with any actual
evidence) increase in investigative efficiency down the line. 51
2. Speaker discrimination
Because the constitutional flaw in the SORNA disclosure requirements is not
governmental discrimination among different messages or among different viewpoints,

51

Here, for instance, is the entirety of the courts analysis of the tailoring of the SORNA registration
requirements in Doe v. Snyder, 101 F.Supp.3d 672, ___ (ED Mich. 2015):
Plaintiffs contend that SORAs Internet provisions are not narrowly tailored because they do nothing
beyond what is accomplished by existing laws to protect minors from sexual crime and note that those
[minor solicitation] laws did a much better job at narrowly targeting the behavior the state wanted to
curtail than SORA does.
However, SORA does go beyond the existing laws and provides further protection of minors from sexual
crimes in two ways. First, whereas [Michigans child solicitation law] prohibits the online solicitation of
minors, SORAs Internet provisions create a database of online identities of persons convicted of sex
offenses which makes easier the investigation of crimes in which a minor (or adult) has been contacted
through an online alias. Second, as the Department of Justices Office of Sex Offender Sentencing,
Monitoring, Apprehending, Registering, and Tracking (SMART) aptly suggests, knowledge that their
Internet identifiers are known to the authorities may deter registered sex offenders from engaging in
criminal behavior on the Internet.
Plaintiffs note that law enforcement has yet to use the Sex Offender Registration database to search for
registrants Internet information to solve a crime. But this in no way affects whether SORA is narrowly
tailored to achieve the states significant and compelling interest in protecting minors.
This amounts to very little more than an assertion plausible, perhaps, but unsubstantiated with any actual
evidence - that the registration provisions might, possibly, assist in the investigation and prosecution of future
crimes.

19

the content-neutrality vel non of the SORNA identifier disclosure provisions is a red
herring, irrelevant to the constitutional analysis.
There is, however, an alternate route that courts can and should take to give
identity disclosure restrictions the scrutiny they warrant, one that more accurately
reflects the actual constitutional flaw in these schemes: the SORNA disclosure rules
discriminate among different speakers, some of whom are permitted to exercise the First
Amendment right to speak anonymously while others are not. This speaker
discrimination constitutes an infringement of the First Amendment prohibition against
abridging the freedom of speech warranting the most exacting judicial scrutiny.
That the First Amendment offers any protection at all against speaker-based
discrimination has perhaps surprisingly not always been clear.52 But in its recent
decision in Citizens United v. FCC, 558 U.S. 310 (2010), the Supreme Court, in Prof.
Michael Kagans words, for the first time gave full-throated articulation to the
principle that discrimination on the basis of the identity of the speaker is offensive to
the First Amendment, even when there is no content discrimination, a new pillar of
free speech law [that] has the potential to reshape free speech law far beyond the
corporate and election contexts.53
The Court in Citizens United appears to have removed whatever ambiguity had
surrounded identity-based speech restrictions, stating emphatically that speaker
discrimination - independent of any content-based discrimination among messages or
viewpoints, and independent of any discrimination that might offend under the Equal
Protection Clause - is prohibited by the First Amendment, and receives the highest level
of judicial scrutiny:
52

See Michael Kagans discussion of the speaker identity gap in pre-Citizens United First Amendment
jurisprudence, in Speaker Discrimination: The Next Frontier of Free Speech, 42 Fla. State Univ. L. Rev. 765 (2015),
available at http://scholars.law.unlv.edu/facpub/901.
53

Id. Citizens United is, of course, controversial for its holding that restrictions on corporate speech trigger strict
First Amendment scrutiny. But as Prof. Kagan points out, for this question to have been relevant, the Court first
had to conclude that discrimination based on speaker identity is a free speech problem sufficient to trigger
heightened scrutiny. [T]he Court had not previously said this clearly, and in limited public forum cases like Perry
and Cornelius, it had actually said the opposite. . . .

20

Premised on mistrust of governmental power, the First Amendment stands

against attempts to disfavor certain subjects or viewpoints. Prohibited, too, are
restrictions distinguishing among different speakers, allowing speech by some but not
others. As instruments to censor, these categories are interrelated: Speech
restrictions based on the identity of the speaker are all too often simply a means
to control content. Quite apart from the purpose or effect of regulating content,
moreover, the Government may commit a constitutional wrong when by law it identifies
certain preferred speakers. By 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. The Government may not by these means deprive the public of the right
and privilege to determine for itself what speech and speakers are worthy of
consideration. The First Amendment protects speech and speaker, and the ideas that
flow from each.
Citizens United, 558 U.S. 310, ___ (emphasis added) (internal citations omitted)
The SORNA cases present an opportunity to clarify and strengthen the contours
of this prohibition against speaker discrimination. When the government, as here,
singles out a class of persons to deprive of a right protected by the First Amendment, it
should be required to support that decision with more than the recitation of some
possible, plausible law enforcement benefits that might, in the future, flow from such
action. The purpose of the SORNA disclosure requirements is to facilitate the
investigation of (and, possibly, to deter) future criminal activity by members of the
covered population; but a statistical likelihood that some members of that population
may engage in such activity should not be sufficient even if it were supported by
actual evidence put forward by the government54 to withhold a constitutional right
from the entire class.
54

The law enforcement rationale for the SORNA identity disclosure requirement rests on the underlying notion
that individuals in the covered category (sex offenders) are more likely to be engaged in criminal activity in the
future. The data on sex offender recidivism are highly complex, and have been greatly exaggerated in the past.
See Ira Ellmann, 'Frightening and High': The Supreme Courts Crucial Mistake About Sex Crime Statistics,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2616429; Tamara Lave, Inevitable Recidivism: The Origin
and Centrality of an Urban Legend, 34 Int. J. Law and Psychiatry 186 (2011); Amanda Agan, Sex Offender
Registries: Fear Without Function?, 54 J. Law and Econ. 207 (2011). As summarized by the Massachusetts
Supreme Judicial court in a recent case:
[S]tudies have indicated that relatively few sex offenders reoffend. See, e.g., Hanson, Harris, Helmus, &
Thornton, High-Risk Offenders May Not Be High Risk Forever, 29 J. Interpersonal Violence 2792, 2796

21

3. Public disclosure and the nature of anonymity

The courts appear to be rather deeply confused about the nature and value of
anonymous speech, as evidenced by the consensus that appears to be developing in the
SORNA cases that the right to speak anonymously means only a right to speak
without revealing your identity to the public at large; it is not infringed or abridged, in
other words, by measures requiring you to reveal your identity to the police, provided
that there are protections in place to guard against disclosures by the police to the
public at large.
The PA court, in Coppolino, summarized the reasoning behind the disparate
outcomes in the SORNA identity disclosure cases this way: [C]onsidering these cases
together, the determining factor is whether a given statute permits or makes likely
disclosure of a registrant's Internet identifiers to the public. Because none of the
avenues of dissemination of registry information applicable under [PA law] involve
public disclosure of registrants' Internet identifiers . . . the requirement that registrants
disclose their Internet identifiers does not burden the right to anonymous speech.55
(2014) (finding 11.9 per cent over-all rate of sexual recidivism, although high-risk offenders reoffend more
frequently than low-risk offenders). Other reports have shown that, contrary to popular belief, the rates
of recidivism for sex offenders are actually lower than the rates of recidivism for those convicted of other
crimes. See, e.g., Council of State Governments, Sex Offender Management Policy in the States,
Strengthening Policy & Practice: Final Report 2 (2010).
Doe v. Sex Offender Registry Board, __ MA __ (2015).
55

Coppolino, 102 A.3d at 1282-4 (emphasis added). This theme is repeated in many of the SORNA cases referenced
above. See, e.g., Doe v Snyder (SORNA challenges turn on who would have access to the reported information;
because Michigan statute neither prohibits registrants from engaging in any particular speech on the Internet, nor
does it unmask registrants anonymity to the public, it did not unconstitutionally abridge the right to speak
anonymously; though the statute does unveil registrants anonymity to law enforcement, this does not, by itself,
infringe upon Plaintiffs First Amendment rights) (emphasis added); Doe v Shurtleff, 628 F.3d 1217, ___ (Utah
statute does not permit[ ] the unrestricted disclosure of information to the general public but only sharing only
among law-enforcement agencies, not the public at large, and only for the recited law-enforcement purposes;
although this narrow interpretation may still result in the disclosure of Mr. Does online identifiers to state
officials, such identification will not unnecessarily interfere with his First Amendment freedom to speak
anonymously); White v. Baker ( holding that the mere reporting of this information alone" - "email addresses,
usernames and user passwords" - "is not speech. It does not constitute content and these items are simply the
vehicles by which communication can occur on the internet. . . . The mere delivery of this information to the sheriff
does not inhibit speech, is not a free speech gateway requirement, and does not implicate the First Amendment.
The First Amendment is, however, implicated when this disclosure requirement is coupled with [statutory provisions
regarding disclosure]; because the statutory provision in question permitted identifier information to be disclosed

22

The idea that your right to communicate anonymously is not abridged if you
only have to reveal your identity to law enforcement officials, as long as those officials
dont reveal it to the public at large (on, say, a publicly-accessible web site56), is, we
think, deeply misguided. The notion that you have a protected right to be anonymous
in the eyes of your neighbors, but not in the eyes of the police, reflects a crabbed and
cramped view of why the First Amendment protects the right to speak anonymously in
the first place. If it becomes the dominant doctrinal position and the SORNA cases are,
unfortunately, heading in precisely that direction it will seriously weaken the right
to communicate anonymously, and the First Amendments ability to serve as protection
against pervasive governmental surveillance, just when we need it most.
*********
In the SORNA cases, the courts are constructing a framework for the analysis of
the constitutionality of identity disclosure laws that has the potential to vitiate entirely
the right to anonymous electronic communication. Three pillars of this framework are
especially troubling: (a) the decision to give these laws less than the most exacting First
to government agencies conducting confidential background checks and to the public if necessary to protect
the public concerning sexual offenders, the right of anonymity was implicated: [B]ecause of the possibility of
disclosure and broad use of Plaintiffs internet identifying information, Plaintiff legitimately asserts the regulation
chills his protected free speech rights) (emphasis added); Doe v. Raemisch, 895 F. Supp. 2d 897 (E.D. Wis. 2012)
(statutory requirement that registrants disclose all email accounts, Internet username and addresses, and
identifiers for any email account, website, or Internet address the offender creates, uses, or maintains for
personal, family, or household use does not violate right to speak anonymously because the information is not
placed on a registry accessible to the public); Doe v Harris (holding that CA statute chills anonymous speech
because it too freely allows law enforcement to disclose sex offenders Internet identifying information to the
public by allowing any designated law enforcement entity [to] provide information to the public about a person
required to register as a sex offender . . . when necessary to ensure the public safety, a condition much too
broad . . . to serve as an effective constraint on law enforcement decisions that may infringe First Amendment
rights) (emphases supplied throughout); Doe v. Harris, 2013 WL 144048 (N.D. Cal. 2013) (while The Acts stated
purposes to combat crimes of human trafficking and sexual exploitation were undisputedly legitimate government
interests, and the challenged provisions could conceivably advance those purposes, because registrants had no
guarantee that their pseudonyms would be safeguarded from public dissemination, their right to speak
anonymously would be chilled).
56

As noted above, see text at note [19], the federal SORNA statute exempts the Internet identifiers from
mandatory disclosure on each States publicly-accessible SORNA registry website; however, SORNA does not limit
jurisdictions retention and use of sex offenders Internet identifier information for purposes other than public
disclosure, including submission of the information to the national (non-public) databases of sex offender
information, sharing of the information with law enforcement and supervision agencies, and sharing of the
information with registration authorities in other jurisdictions, or to disclose Internet identifier information to
any one by means other than public Web site posting.

23

Amendment scrutiny, (b) a feeble tailoring analysis that deems it sufficient if the
government shows merely that there is some plausible, statistical likelihood that future
criminal investigations will be more effective if the anonymity restrictions are in place,
and (c) the decision to narrow the scope of the right to anonymous communication so
that it does not cover anonymity vis-a-vis law enforcement authorities.
It is, as the Supreme Court has noted, more than historical accident57 that
much current First Amendment doctrine was crafted in response to governmental
efforts to impose speech restraints on an unpopular minority that often found itself in
society's crosshairs: Jehovah's Witnesses, who have long been deeply unpopular for
their unorthodox religious views, their conscientious objection during wartime, and
their habit of house-to-house proselytizing. Sex offenders are as stigmatized and
unpopular a minority group as any in the country at present, and we suggest that, like
the Jehovah's Witnesses, the fight for their constitutional rights will have a deep impact
on the future development of First Amendment doctrine, for better or for worse.

57

Watchtower Bible, 535 U.S. 150, 160 (2002).

24