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More First Amendment Violation in the Name of "Privacy" and of "Non-Discrimination":

California version of Megan's Law orders the California Department of Justice to put on the Web information about sex offenders; but Cal. Penal Code § 290.46(j) says:

(1) A person is authorized to use information disclosed pursuant to this section only to protect a person at risk.

(2) Except as authorized under paragraph (1) or any other provision of law, use of any information that is disclosed pursuant to this section for purposes relating to any of the following is prohibited:
(A) Health insurance.
(B) Insurance.
(C) Loans.
(D) Credit.
(E) Employment.
(F) Education, scholarships, or fellowships.
(G) Housing or accommodations.
(H) Benefits, privileges, or services provided by any business establishment.
. . .

(4) (A) Any use of information disclosed pursuant to this section for purposes other than those provided by paragraph (1) or in violation of paragraph (2) shall make the user liable for the actual damages, and any amount that may be determined by a jury or a court sitting without a jury, not exceeding three times the amount of actual damage, and not less than two hundred fifty dollars ($250), and attorney's fees, exemplary damages, or a civil penalty not exceeding twenty-five thousand dollars ($25,000).

(B) Whenever there is reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of misuse of the information available via the Internet Web site in violation of paragraph (2), the Attorney General, any district attorney, or city attorney, or any person aggrieved by the misuse is authorized to bring a civil action in the appropriate court requesting preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or group of persons responsible for the pattern or practice of misuse. The foregoing remedies shall be independent of any other remedies or procedures that may be available to an aggrieved party under other provisions of law, including Part 2 (commencing with Section 43) of Division 1 of the Civil Code.

The California Justice Department's Megan's Law FAQ plausibly interprets this as barring people from telling others about what they learned from the Web site, as a form of "use" of the information:
I want to share with others the information I found on the Attorney General's Megan's Law Website. Does the law prohibit me in any way from sharing this information?

A person may use the information disclosed on the Attorney General's Web site only to protect a person at risk. It is a crime to use the information disclosed on the Attorney General's Internet Web site to commit a misdemeanor or felony. Unless the information is used to protect a person at risk, it is also prohibited to use any information that is disclosed pursuant to this Internet Web site for a purpose relating to health insurance, insurance, loans, credit, employment, education, scholarships, fellowships, housing, accommodations, or benefits, privileges, or services provided by any business. Misuse of the information may make the user liable for money damages or an injunction against the misuse. Before using the information disclosed on this Web site, you may want to consult with an attorney or merely suggest to others that they view the Web site for themselves.

So California law suppresses presumptively true statements of fact about criminals based on a public record, unless one's purpose is "only to protect a person at risk." If one learns that a neighbor or a coworker has committed a heinous crime, and wants to tell people -- not specifically to protect a person at risk, but (for instance) to urge people not to give a fellowship to someone with such bad morals, or to urge businesses not to associate with such an evil person -- one risks damages liability or an injunction.

Seems like a pretty clear First Amendment violation, especially given Florida Star v. B.J.F. If it's unconstitutional to bar speakers from revealing the names of rape victims when those names were accidentally released by government officials into the public record, I'd think that it would be unconstitutional to bar speakers from revealing the names of rapists when those names were deliberately placed by government officials into the public record. But it seems that California weighs the privacy of public-record information about sex criminals more heavily than its law-abiding citizens' constitutionally protected free speech.

Thanks to Cathy Seipp for the pointer.

Matt Barr (mail) (www):
I blinked a couple times, but it still says "It is a crime to use the information disclosed on the Attorney General's Internet Web site to commit a misdemeanor or felony." It's a crime to use almost anything to commit a misdemeanor or a felony.
10.7.2005 6:47pm
JayJ:
I don't know if this is on point or not, but the issue of balancing First Amendment vs. privacy rights found in Florida Star v. B.J.F. seems complicated in this California example since the identity of the rapists is already published by the state of California. In Florida Star v. B.J.F., the Sheriff's Department simply created a press release placed in a pressroom that did not restrict access. It was the Florida Star that "published" the information, not the Sheriff's Department. An interesting (if probably irrelevant) question becomes: is a press release placed in a pressroom that does not restrict access equivalent to posting information on the Web?
10.7.2005 7:31pm
HeScreams (mail):
Prof. Volokh has an interesting point: if I (out of curiosity for my child's safety) look up a person on a Megan's Law website, and then tell my friend not to hire that person, I have violated that law. The argument that this violates my 1st amendment rights seems like a strong one.

But what about: I (out of blah blah blah) look up a person on a Megan's Law website. The next day, he applies for a job; coincidentally, I am the hiring manager. According to the cited law, if I use my information from the Megan's Law website in my hiring decision, I've violated this same law. This cannot be challenged on speech grounds; but it still defies intuition that I cannot take public information into account in my daily life. Surely no court can enjoin me to forget what I know? But in this situation, what grounds could this law be challenged on?

JayJ has an interesting point, too: it seems strange that in Florida Star the court ruled that the Florida Star published the information, not the sheriff's office. It was the sheriff's office that made the information public and accessible. (I haven't read the case; do I have my facts straight?)
10.7.2005 8:48pm
HeScreams (mail):
Woops. Ignore the last paragraph of my last post. I just read the case summary, and I have the facts quite backwards.
10.7.2005 8:57pm
Buck Turgidson (mail):
So California law suppresses presumptively true statements of fact about criminals based on a public record

Uhm... How shall I put this?.. They are not criminals. At best, they are ex-criminals. I suppose, you can call them "felons", "ex-cons", "returned to society" or whatever else you may choose, but "criminals" is not appropriate here. If they were criminals, they'd be locked up.

I was going to write "or those under investigation", but stopped myself. If that were the case, Tom DeLay (under indictment) and Karl Rove (under investigation) would have to be referred to as "criminals". That doesn't jive well with the presumption of innocence.
10.7.2005 9:49pm
Steve:
The point of the law is exactly that the hiring manager cannot use the information in his decision; that's not just some unforeseen side effect.

The policy argument is that we want to protect at-risk people from these individuals, but we don't want to stigmatize them to the extent that they can no longer be productive members of society. The law strikes a compromise between the two goals, and it would be unfortunate if the Constitution mandates that we can only have one or the other.

I wonder if there is an analogy to the dissemination of credit reports. After all, if you lawfully receive a credit report, I believe there are still restrictions on where you can disseminate the information. Is there a distinction?
10.7.2005 10:03pm
dunno:
Question:
It is legal to use the information "to protect a person at risk," but not in other circumstances related to "(G) Housing or accommodations"?

How exactly would a prosecutor go about proving that in, say, an apartment building occupied or frequented by at least one woman, a decision by a landlord not to rent to a heterosexual rapist was in violation of (2)(G), in light of (1)?

Considering the prevalence of such buildings (and complexes and neighborhoods) (I'm having a hard time of thinking of one that doesn't fit the mold--a monastery?), doesn't that just demolish (2)(G)? And can't the same be said for (E), (F), and (H)? (Employment--a single employee, customer, or contractor fit the description of the rapist's victims?) (Education--a single student, teacher, professor, or staff member?) (Business services--imagine a restaurant refusing to seat him because of the possibility of who may wind up at the next table).
10.7.2005 10:58pm
randal (mail):
Prof. Volokh has an interesting point: if I (out of curiosity for my child's safety) look up a person on a Megan's Law website, and then tell my friend not to hire that person, I have violated that law. The argument that this violates my 1st amendment rights seems like a strong one.

Have you violated the law? I don't think so. You haven't made a hiring decision or "made use" of the information at all. You just passed it on.

It might be illegal for your friend to take what you said into account in making the hiring decision.
10.7.2005 11:02pm
David M. Nieporent (www):
Uhm... How shall I put this?.. They are not criminals. At best, they are ex-criminals. I suppose, you can call them "felons", "ex-cons", "returned to society" or whatever else you may choose, but "criminals" is not appropriate here. If they were criminals, they'd be locked up.

Um, how shall I put this? How about the dictionary?


crim·i·nal
n.
One that has committed or been legally convicted of a crime.


Seems to me to fit these people. You're apparently confusing "inmate" with "criminal." There's no such thing as an "ex-criminal," except perhaps someone who was convicted and then subsequently exonerated.
10.8.2005 1:35am
mindbender:
The whole problem with this situation is that our justice system philosophy isn't capable of dealing with offenders who will always re-offend. Sexual Predators, particularly pedophiles, have a nearly 100% recidivism rate in the long-term. But our penal system doesn't recognize this fact philosophically, and so the lawmakers try to correct it by making these people very public pariahs via websites, mandatory door-to-door confession, etc. The problem is, once you've done your time, your a free man or woman. Why should you have to be highlighted and forced to proclaim your past to everyone? This seems extra-punitive. So they pass dopey laws like this one, instead of philosophically recognizing the problem, and increasing sentences for these types of crimes to life in prison. Another example of our clueless penal system trying to soften the blow of their institutional hypocrisy.
10.8.2005 1:44am
Guest99:
This palpable First Amendment violation is endorsed by the California chapters of the American Civil Liberties Union (ACLU). Indeed, these legal provisions, which violate civil liberties, were added to appease the ACLU's lobbyists.

The ACLU long since lost interest in defending core civil liberties, like free speech, when that conflicts with liberal policy goals, like protecting criminals from the consequences of their actions.
10.8.2005 11:54am
XX Fredrik Nyman (mail):
Dunno's question raises another, interesting question:

Let's suppose that you're a landlord of an apartment building. You also happen to be a parent, so you periodically check the California DOJ website to see if there are any sexual offenders living in your vicinity.

As it happens, you see that John Doe, who just applied to rent an apartment in your building, is a sexual offender (say, recidivist child molester).

In order to NOT run afoul of the California penal code, you shrug and rent the apartment to John Doe, who moves in the next day.

A week later, John Doe molests the child of another of your tenants who lives in the same building.

Question: can the child's parents sue you for negligence, on the theory that you, as a landlord, have a duty to warn them that you just rented their next-door apartment to a serial child molester?
10.8.2005 1:17pm
Joe Power (mail):
mindbender, your comment about recidivism rates is factually wrong. See :
http://www.johnhoward.ab.ca/docs/sxoffend/page1.htm
http://www.csom.org/pubs/recidsexof.html
http://www.csc-scc.gc.ca/text/pblct/forum/e082/e082g_e.shtml

The reason all these restrictions are placed in such laws is that people were being assaulted, burned out of their homes and murdered by people who used information on the website.
I think the politicos feared that too much of this would undermine the effectiveness of using sex offenders as 21st century boogeymen. They added these caveats, knowing full well that they would be routinely ignored (and utterly unenforcable), so they could pretend to be fair.
What I want to know is why, if this is such a good idea for sex offenders, don't we make ALL parolees &ex-felons register? If you live in a wooden house, wouldn't you like to know if any of your neighbors are arsonists?
10.8.2005 2:22pm