pageok
pageok
pageok
Free Speech Trumps Limits on Disclosing Public Record Information About Sex Offenders:

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 that:

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

Gerald Moerler, a teamster, is a registered sex offender (having been convicted of "lewd and lascivious acts with child under 14 years"). He claims that various fellow union members and Vons members "posted and mailed fliers in the City of Covina for the purpose of harassing Moerler," and he therefore sued for damages. (The statute provides, that "Any use of information disclosed pursuant to this section for purposes other than those provided by paragraph (1) ... 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).")

The California Justice Department's Megan's Law FAQ seems to be on Moerler's side, plausibly interpreting the statute as barring people from telling others about what they learned from the Web site, as a form of "use" of the information:

[Q:] 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:] 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, or for that matter to provide background on a litigant for a blog post — one risks damages liability or, under another provision of the statute, an injunction.

This has long seemed to me 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.

And though the California legislature apparently thinks it indeed may restrict speech this way, I'm pleased to report that a California trial court judge has just thrown out Moerler's case on First Amendment grounds. Unfortunately, such trial court decisions don't set a binding precedent, and may not even set a persuasive precedent given that they usually aren't published anywhere, even in Westlaw or Lexis. But if this is appealed, I expect that the California Court of Appeal will affirm, and rightly so.

By the way, to my knowledge this case hasn't been covered in the mainstream media, even though it involves the first First Amendment challenge I know of to the Megan's Law provision.

Nathan_M (mail):
I'm just speculating here, but does it make a difference that the government is providing the information in question? The analogy is not perfect, but this seems a bit like requiring people to agree to a non-disclosure agreement before they are allowed the access the database. Would that be a potential first amendment violation too?

Florida Star, under this reasoning, could be distinguished because the law there restricted speech, regardless of how a person came across the information.

The California law, on the other hand, does not restrict speech in this broad fashion. It doesn't "bar speakers from revealing the names of rapists", it only bars speakers from revealing names they obtained from the registry.

Also, the Florida Star seemed to rely on the fact that the newspaper received its information legally. Arguably, in this case the speaker did not receive the information legally (unless of course the law is unconstitutional, but that seems like a circular argument), although obviously that is not clear cut.
2.14.2008 1:21am
one of many:
the crux seems to be that in order to gain acess to the database one agrees to restrictions on how one uses the information obtained from the database. it could be argued that the first amendment protects any disemination of information from any source and confidentiality agreements, non-disclosure forms etc. are meaningless, but that is not the state of the law.

the database is not a part of the public record, but is a confidential database specifically excluded from the public record made availible to the public, as written into the law by the california legislature. i'm not certain if the whole confidential database made accesible to the public but not part of the public record thing will stand up in court, but at this point in itme it is the law in california. there was some controversy about this at the time the law was passed, but the confidential database available to the public was the solution to privacy/public-right-to-know ballancing act.
2.14.2008 2:25am
Eugene Volokh (www):
One of Many: (1) Adult criminal convictions are generally a matter of public record in California. To the extent the database simply reports on conviction information, it just gathers in a convenient place information that's already public record.

(2) If you go to the California Megan's Law site, you'll see that the terms and conditions that you're expressly required to agree to do not include a promise not to "use information disclosed pursuant to this section [except] to protect a person at risk."

(3) The government's power to require people to promise not to publicize certain government-released information in certain ways is unsettled. See L.A. Police Dep't v. United Reporting Pub. Corp. for the Justices' latest, inconclusive statement on the subject. But in this case there were no such promises.
2.14.2008 2:45am
Dave N (mail):
Interestingly, the California sex offeder website requires you to check a box that indicates you have read the disclaimer and the limitations on the use of the information on the website. You cannot continue until you check the box.

Specifically, the disclaimer warns:
The information on this web site is made available solely to protect the public. Anyone who uses this information to commit a crime or to harass an offender or his or her family is subject to criminal prosecution and civil liability. Any person who is required to register pursuant to Penal Code section 290 who enters this web site is punishable by a fine not exceeding $1,000, imprisonment in a county jail not exceeding six months, or by both the fine and imprisonment. (Pen. Code, § 290.46, subd. (h)(2).)
I agree there is a strong First Amendment argument to be made regarding whether the law is constitutional. However, I also find it interesting that sex offenders will break the law if they use this website--though I would imagine that it would be extremely difficult to prove a violation.
2.14.2008 2:48am
Dave N (mail):
Assuming the law was constitutional (a rather large assumption), what would prevent someone from using the information gathered on the Megan's Law website to research other public information on the convicted child abuser (say contacting the the various court clerks and ordering a copy of the judgment of conviction or looking in newspaper databases for the offender's name)--and then disseminating THAT information? There is hardly a "fruit of the poisonous tree" for non-police activities.
2.14.2008 2:55am
JB:
This is another reason why these registries are a dumb idea. The rights of sex offenders who've served their time, and the rights of ordinary citizens, do not balance well.

Either release them completely or keep them in prison. At the very most have the cops check up on them and enforce bans on contact with whoever. These registries are too damn much trouble as currently constituted.
2.14.2008 2:57am
one of many:
EV,

california has some weird rules on privacy and the publc record and compiled databases of information. the fact of an arrest and various pieces of information about the arrested are part of the public record, and made public under 6254(f) which is what the United Publishing case was about, compilation and disemination of information in the public record.

The sex offender database is compiled (partially) from registrations of sex offenders with local police departments, information which is not part of the public record but confidential information recieved by the gocernment - covered under 6254(c) or 6354(d)(4) not information made specifically made public under 6254(f). if the database were solely based on arrest and conviction information then there would be no such restrictions placable on the use of the information, but it would also be fairly useless since a registered offender could simply move and the database would still contain the public information of their adress at the time of their arrest. the california megan's law contains a notification that revelation of information onthe database does not constitute an entry of the information on the database into the pblic record. (290.46 (i))

Dave already delt with point 2, to access the site you have to check a box acknowledging acceptance of the terms of use.
2.14.2008 3:40am
Hoosier:
Yet again, an non-lawyer question:

It is the word "only" that jumps out at me. Using a similar case from this state as a "template":

Let's say I have an Asian friend, and he has daughters. I find out on the sex offender database that my friend's new neighbor is a convicted sex offender who preys only (or especially) on young Asian girls. I give him the information I've found on the website, in order to "protect" his little girls. I assume I'm in the clear, thus far.

But let's say that I live on the same block, and I happen to mention to him *also* that I don't like the impact on property values of having a registered sex offender a few doors down.

I have now violated the statute, right? Even though I disclosed the information *primarily* because I was worried about little Mary and Sarah, I was *also* worried about my retirement fund, and expressed a relationship between the disclosed information and something *other than the girls' safety*.

I'm going to hope, in such a case, that my friend will "forget" that I ever metnioned property values, if I were to be sued. (And I admit that I would perjure myself to protect my children from a child rapists, just so's ya know.) But, as I read the post, I am liable for damages if he decides not to perjure himself. Yes?
2.14.2008 9:27am
Hoosier:
Corerection (The above proves I'm no lawyer):

"my friend's new neighbor is a convicted sex offender who IN THE PAST HAS PREYED only . . ."

A significant mistake in terms of the justice system. Though probably not in terms of sexual psychology.
2.14.2008 9:31am
whit:
"This is another reason why these registries are a dumb idea. The rights of sex offenders who've served their time, and the rights of ordinary citizens, do not balance well. "

sure they do. the problem is not the registries. the problem is (as usual) california trying to impose overregulation and overreaching legislation that infringes on constitutional rights.

"Either release them completely or keep them in prison. At the very most have the cops check up on them and enforce bans on contact with whoever. These registries are too damn much trouble as currently constituted."

no. the registries have worked very well.

but california can't have it both ways. either the infornmation is public, or it isn't. i can go online (not using my police databases - just public ones) and find out TONS of information on people WAY beyond sex offender stuff. that information is public. if i am accessing it legally, it follows that i should not be subject to prosecution for disseminating it ANY WAY I SEE FIT.

there are already laws against harassment, assault, etc. if somebody uses this info to harass somebody or whatever, then prosecute them.

disseminating public information is not harassment, though.
2.14.2008 10:20am
Eugene Volokh (www):
One of Many: As I think I mentioned, the terms of use that the site requires you to accept do not include a promise not to "use information disclosed pursuant to this section [except] to protect a person at risk" -- that's just not mentioned on that page.
2.14.2008 10:25am
Hoosier:
One other question: Can governments make legally- enforcable caveats like the one on this site? (E.g., If you check this box, you agree not to do anything with this information other than what we have said is OK.)

I work at a private university, and if we felt compelled to disclose information on our website, but said that anyone accessing the website must certify that, say, they will not use this information against us in a law suit, this would be totally unenforcable, right? Can the City of Indianapolis, or Purdue for that matter, make such reservations legally binding?
2.14.2008 10:46am
markm (mail):
So they included a terms of use on the site but did not include the wording from the law or anything fully equivalent to it? Just when I thought I'd seen the ultimate in governmental stupidity...

IANAL, but I see no reason that such a site could not include a click-through confidentiality agreement restricting disclosure - but that would be enforceable through civil law only, not as a criminal law matter. It sounds to me like a much more reasonable compromise between privacy and first amendment concerns than criminal prosecution.

OTOH, this was a civil suit, and Moerler claims that the defendants did harass him using information from the web site, which is forbidden by the terms of use as well as the law. Is the trial court decision being appealed?
2.14.2008 10:48am
Procrastinator:
the problem is not the registries.

The problem obviously is the registries--if they didn't exist, we wouldn't be talking about this at all!

the problem is (as usual) california trying to impose overregulation and overreaching legislation that infringes on constitutional rights.

Sure, in a general sense, every issue can be thought of this way, but care to explain what you mean here? Whose constitutional rights? There are obvious conflicts between the claimed rights of children/parents to avoid sex offenders and the claimed rights of sex offenders to be left alone after serving the terms of their punishment. Yet you're blaming "overregulation" while finding no fault with the database, which is the government putting a harassment tool at the fingertips of vigilantes. Is this the overregulation of which you speak?

no. the registries have worked very well.

What it mean to say that they have "worked very well"? What would "not worked well" look like? There's still sexual abuse in California, it doesn't seem like much of a deterrent; children are still more likely to be abused by a relative than a stranger.

if i am accessing it legally, it follows that i should not be subject to prosecution for disseminating it ANY WAY I SEE FIT.

Yes, but that's begging the question--if you're accessing it with an intent other than to protect someone, you're not accessing it legally according to the terms of the checkbox, and therefore you can't disseminate it any way you see fit.

there are already laws against harassment, assault, etc. if somebody uses this info to harass somebody or whatever, then prosecute them.

disseminating public information is not harassment, though.


Can you explain why this particular public information should be made available so readily in a searchable internet database? Why give potential harassers such easy access?
2.14.2008 11:02am
markm (mail):
Hoosier: If Microsoft's click-through software license agreements are binding, a similar arrangement on a website should be able to create a binding contract. In either case, your agreement must be inferred rather than being proven by a signature, but as long as the only way to access that information was to click through the agreement, it should hold - unless a contract provision "violates public policy". I would agree with a judge that threw out a "you can't use this information in court" provision on public policy grounds, but I don't know of any precedent for this.

There certainly is precedent for upholding many contractual limitations on speech. E.g., many employers require employees to contract not to divulge trade secrets and other confidential information. I signed such an agreement when I was in the Air Force, even though the classified information in question is also protected by law. Beyond that, SEC regulations forbid revealing "insider information", labor laws restrict what employers can say during a union certification effort, etc.
2.14.2008 11:16am
whit:
"The problem obviously is the registries--if they didn't exist, we wouldn't be talking about this at all! "

the information (generally) would still be publically available. all the registries do is make it easier to access. criminal records are STILL public record, and were before the registries. i can spend 5 minutes online and find out if anybody has a sex offense conviction.

all the registries do is make the information more EASILY available.

"Sure, in a general sense, every issue can be thought of this way, but care to explain what you mean here? Whose constitutional rights?"

it's called the right to free speech.

" There are obvious conflicts between the claimed rights of children/parents to avoid sex offenders and the claimed rights of sex offenders to be left alone after serving the terms of their punishment. Yet you're blaming "overregulation" while finding no fault with the database, which is the government putting a harassment tool at the fingertips of vigilantes. Is this the overregulation of which you speak? "

i'm not talking about the 'right to avoid sex offeders". im finding fault with LIMITING FREE SPEECH

you remind me of a gun-control advocate. the issue is not that the registries are a "harassment tool". all sorts of information CAN be used for harassment

in a FREE society, we punish the CRIME - harassment. we do not restrict free speech because SOME people may abuse it.

ever heard of prior restraint?

i have every right to scream from the mountaintops (or any public forum) that john q rapist is a sex offender, or make mention of his criminal record. it aint libel or slander to report true information, and it isn't harassment either.

it's called free speech.

"Yes, but that's begging the question--if you're accessing it with an intent other than to protect someone, you're not accessing it legally according to the terms of the checkbox, and therefore you can't disseminate it any way you see fit. "

except that law is unconstitutional, so screw the checkbox.

"Can you explain why this particular public information should be made available so readily in a searchable internet database? Why give potential harassers such easy access?"

again, classic authoritarian nannystate argument from you. we don't limit speech or access to information because some CRIMINALS abuse it. we punish the CRIMINALS who DO abuse it.

the govt. has a DUTY to make information easily accessible. that's part of its role. this is america. the only difference between now and several years ago is that people now have access to TECHNOLOGY that makes it easier to find this information. the information was previously public (generally).

what the notification laws do is have the govt. take an affirmative step to disseminate information (on certain higher risk offenders). but ANYBODY long before these laws came out could use legal public records to find out if john q. rapist had sex assault convictions.

this is afree society. we do not hide these records. given that the technology nowmakes it more easily accessable, we use the technology. the first amendment didn't anticipate blogs ro the internet. but we don't regulate free speech on the blogs because it makes it EASY for people to lie, spread false information, etc. we punish the CRIME if and when its committed.

your argument is typical of most arguments that want to punish everybody and limit everybody's free speech because SOME people abuse the right, and commit crimes.

the way to deal with this in a free society is to punish the criminals.
2.14.2008 12:21pm
Bored2L:
I agree that there is a Free Speech problem.

Maybe this isn't the forum, but I think the real problem is with the registries. The purpose of the registries is to protect the public from convicted sex offenders. Assuming away the serious question of whether the registries actually are effective at achieving this goal (which is actually a rather large assumption), is there a way to prevent misuse of the information without implicating the First Amendment? That is, is there a general harassment law or something similar that could be used? Or would it make more sense to restrict access to the registry to the police?
2.14.2008 1:10pm
whit:
"Maybe this isn't the forum, but I think the real problem is with the registries. The purpose of the registries is to protect the public from convicted sex offenders. "

more correctly, the purpose of the registries is to empower citizens to protect THEMSELVES (and their loved ones) by making the information more easily accessible.

prior to the registries, whether john q rapist is a convicted sex offender was ALREADY publically accessible infromation, just not as easy to do.

"Assuming away the serious question of whether the registries actually are effective at achieving this goal (which is actually a rather large assumption), is there a way to prevent misuse of the information without implicating the First Amendment? That is, is there a general harassment law or something similar that could be used?"

yes, that's my point. there are already laws against harassment, assault, etc.

but fwiw, disseminating info that anybody has been convicted of a sex crime is NOT harassment . it's free speech.

" Or would it make more sense to restrict access to the registry to the police?"

as a police officer myself, i say heartily "no".

just as guns can be misused, they still should be available to citizens, not just cops.

ditto for this information. punish criminals, NOT the law abiding.
2.14.2008 1:26pm
Thomas_Holsinger:
Here is a related confidentiality problem:

"... contrary to surveys conducted in the general population, in the mental health field, those most likely to be stalked are psychologists who are male and they appear to be most at risk of being harassed by patients.

To give one example, take the case of Vallejo, California psychologist Ira Polonsky, Ph.D., who was shot and killed by what family members believe was a former patient. Unfortunately his death is still a mystery. Why? Blame the confidentiality laws in California:

... police have been stymied in pursuing that line of investigation because of confidentiality laws protecting Polonsky’s patient records and appointment books.

Vallejo police detectives are in touch with a court-appointed attorney – a “special master” – who is working with the county court to see if there can be at least a limited review of protected records, but neither police nor court officials will comment on progress in that area."
2.14.2008 1:47pm
one of many:
EV,
true the TOS does not explicitly state what consitutes "solely to protect the public" but the "Megan's Law Disclaimer" (TOS) does specifically mention that "[a]nyone who uses this information to commit a crime or to harass an offender or his or her family is subject to criminal prosecution and civil liability", which would cover the actions of the defendant(s) in the Moerler case. The TOS is only potentially useful anyway.

I cannot concieve of a scenerio where a harm which would cause civil liability would occur which didn't involve harrasement, but in such a case it might be a defense to argue that the California DOJs failure to specify the legal limits of usage beyond crimes and harassment implicitly permitted whatever use that was. The limit "use information disclosed pursuant to this section [except] to protect a person at risk" is written into the law creating the database while the "[a]nyone who uses this information to commit a crime or to harass an offender or his or her family is subject to criminal prosecution and civil liability" comes from the California DOJ, a government agent's (mis)statement of law is not the law. The limitations on use of information from the database are not solely governed by the TOS but also by the law establishing the database, and while a defense for violating the law could be based upon the TOS, it would not mean there was no violation of the law, merely that liabilty did not accrue from the violation.
2.14.2008 2:15pm
Apodaca:
Eugene, doesn't this have some pretty serious implications for the statutory restrictions on commercial use of FEC political contribution records?
The names and addresses of individual contributors [...] may not be sold or used for any commercial purpose or to solicit any type of contribution or donation, such as political or charitable contributions. 2 U.S.C. 438(a)4); 11 CFR 104.15. This restriction applies to Federal reports and statements filed in Washington, as well as in
each state. Any person who violates this restriction is subject to the penalties of 2 U.S.C. 437g.
2.14.2008 3:04pm
NickM (mail) (www):
As previously mentioned, CA prohibits sex offenders from accessing the registry. This raised some very interesting due process and First Amendment issues in a case I was aware of, although those issues later became mooted by a court decision striking down part of CA's law.

An adult woman, who had several minor children (ages 8 and up at the time, IIRC), was convicted on two counts: sexual intercourse with a minor and oral copulation with a minor. The minors in both cases were 16 year old boys who were apparently fully agreeable to the acts. CA's age of consent is 18. [The case attracted significant local media attention and some national attention - the woman was a local PTA leader, as well as head of the high school football booster club - both boys were on the football team.]

CA law made oral copulation with a minor, though not sex with a minor, a registration offense. That prohibited her, a mother of minor children, from accessing the sex offender registry to protect her children (e.g., see if a sex offender has moved into the neighborhood, check on child's athletic team coach, check out potential babysitter, etc.).

No suit was filed challenging that prohibition, although I do know that some people brought the issue to her and her lawyer's attention. One might have been contemplated, but the issue became moot as to her not long after the conviction, when a CA court struck down the registration requirement for oral copulation with a minor (because sex with a minor was not a registration offense).

Nick
2.14.2008 3:15pm
pete (mail) (www):

Can you explain why this particular public information should be made available so readily in a searchable internet database? Why give potential harassers such easy access?


I am a public librarian and we use our state's database when we have someone who commits an offense on library property (most often exposure). Usually the person is already in the database from a previous offense. It lets us know their name, height, birthdate, etc. and the picture is useful because people who were not there at the time of the offense can know who to look out for and the information is given to our security gaurds.
2.14.2008 3:57pm
Dilan Esper (mail) (www):
One of Many: As I think I mentioned, the terms of use that the site requires you to accept do not include a promise not to "use information disclosed pursuant to this section [except] to protect a person at risk" -- that's just not mentioned on that page.

Prof. Volokh:

I think it says using the information to harass an offender is a crime. That isn't as broad as what you state, but it is broad enough to cover the facts of this case.

And under Snepp v. United States, the government certainly can condition use of the database on a limitation on the use of the information-- though nothing would stop someone from using the database and then looking up the information manually and using the manually retrieved information.

Of course, I think Snepp is wrongly decided and the government shouldn't be able to do impose this sort of condition at all. But under current doctrine, I can see this getting upheld.
2.14.2008 4:38pm
JamesWN (mail):

IANAL, but I see no reason that such a site could not include a click-through confidentiality agreement restricting disclosure - but that would be enforceable
through civil law only, not as a criminal law matter. It sounds to me like a much more reasonable compromise between privacy and first amendment concerns
than criminal prosecution.

The First Amendment inquiry turns on whether speech is restrict4ed and not not whether the enforcement is civil or criminal, see New York Times Co. v. Sullivan.
What Microsoft and other private employers may do is of course irrelevant to what the government my do in its capacity as sovereign.
2.14.2008 4:39pm
Eugene Volokh (www):
Dilan: (1) "Harass" is a pretty vague term; I'm not sure quite how a contract not to harass someone would be interpreted.

(2) In any case, the contract doesn't promise that you won't harass anyone. The relevant provision simply states that, "Anyone who uses this information to commit a crime or to harass an offender or his or her family is subject to criminal prosecution and civil liability." That sounds like a statement of your preexisting legal obligations, not a demand for a promise that would incur additional legal obligations.
2.14.2008 6:17pm
Dilan Esper (mail) (www):
Professor Volokh:

1. I agree that harass is a vague term. But it's also a commonly used one, and I actually think that in this context it is somewhat easier to interpret (from the context) than it would be in other contexts. In this context, it's pretty clear that the word harass is being used to draw a distinction between using the information for the protective purpose for which it is made available and publicizing the information in a manner that attempts to drive the offender out of the community, or make the offender's life difficult.

That isn't saying that it would necessarily survive a vagueness challenge-- it very well might not-- but only that I've seen much vaguer laws and contractual provisions than this one when you take it in context (your typical disorderly conduct statute, for instance, is much vaguer).

And if my reading of this is right, the conduct alleged falls within the prohibition.

2. I think you are being a little too literalistic about the language. The person seeks the information from the website. The website says if you want to get the information, you have to click a box saying you understand the terms and conditions. One of the terms and conditions is the one you quote.

I think it is a perfectly reasonable reading-- again, leaving aside the constitutional claim that the government doesn't have the power to demand such a condition-- that the government is demanding that you agree to this restriction if you want to access the information. This may be a somewhat clumsy way of expressing that, but that's not the same thing as saying that it wouldn't be treated as a binding agreement (again, subject to the First Amendment objections). Courts interpret contracts that are expressed in clumsy language to effectuate the parties' intent all the time.

Again, I am not saying this will be upheld, and I am CERTAINLY not saying (as someone who really wishes that more scrutiny would be given to contracts that waive First Amendment rights and as someone who also feels that "privacy" isn't a broad exception to the First Amendment) that this SHOULD be upheld. I am simply saying that under current law, I can see it getting upheld, and that would be one reasonable interpretation of current law.

Actually, one deeper question in all this is whether the government should be able to place greater restrictions on the use of public records now that they are all computerized and some of the obstacles to "misuse" of the information are so much lower than they used to be. I tend to answer this question "no", but that doesn't mean it isn't a colorable issue and it doesn't mean that states don't have a plausible argument that computerized Megan's Law databases may facilitate harassment of sex offenders.
2.14.2008 8:19pm
TruePath (mail) (www):
Dilan Esper,

You can't have it both ways. Either you are entering into a formal contractual agreement to get at the data, in which case the language as stated would have to be read in the sort of literal facial meaning way that Eugene does, or you are not and you've lost the argument. You can't create a contractual obligation by vaguely suggesting that you WANT the person to do something or that bad things may happen to them if they do.

Besides you can't bootstrap the law into being constitutional by claiming that being notified you are subject to the constitutes some kind of confidentiality agreement. I mean Eugene could accept that he was to be subject to the law (plausibly believing it to be constitutional) without agreeing to keep the data confidential in any way which in turn validates his belief the law was unconstitutional.
-----

Secondly the law is totally useless as well. All I need is one person who fully believes that the best way to protect the public from the danger of sex offenders is to cause the publication of the entire database. I then inform this person I will go to the trouble of setting up and running a website that publicly distributes this information and ask that individual to download the data and hand it over to me. Given the likely case that this is the action which they think will maximize protective value they haven't violated the law while I haven't made entered into any sort of confidentiality agreement to access the data.
2.14.2008 10:43pm
TruePath (mail) (www):
Also as far as the effectiveness of the registries I would like to see what sort of evidence you have to back this claim up. Merely showing that states/locations with the registries have less child molestation doesn't establish the case. In my opinion the registries are almost certain to encourage child molestors to leave for less antagonistic pastures which in turn likely increases the total amount of molestation.

Also there are several reasons to suspect the efficacy of the registries.

1) The vast vast majority (like 99%) of molestations are performed by individuals well known to the family (relatives, priests, friends etc..) and (surprising as it is) people are often reluctant to turn in these people if the penalties are viewed as being overly harsh (they tell themselves it wasn't really true/just overactive imagination).

2) By drastically interfering with the ability of people on the lists to garner respect and integrate into social networks they have less incentive to be good and more incentive to associate with like minded people. I mean do you really want to encourage former sex offenders to spend a greater percentage of their time on internet chat rooms where they can avoid the shame?

3) By encouraging sex offenders to move away from places with support structures (friends and family) you also encourage deviance.
2.14.2008 10:52pm
Dilan Esper (mail) (www):
You can't have it both ways. Either you are entering into a formal contractual agreement to get at the data, in which case the language as stated would have to be read in the sort of literal facial meaning way that Eugene does, or you are not and you've lost the argument. You can't create a contractual obligation by vaguely suggesting that you WANT the person to do something or that bad things may happen to them if they do.

TruePath, a contract is formed by the intention of the parties, not magic language. I have seen much more ambiguous language being held to form a binding contract. Especially here in California, where the "plain meaning" rule of contract interpretation has been definitively repudiated by controlling California Supreme Court precedent for 41 years.

I am not saying for certain that it would be found to constitute a binding contract. But it's certainly one reasonable interpretation, and one a court might adopt (leaving aside the serious First Amendment issues).

Personally, I oppose Megan's Laws for many of the reasons you set out. And I also think conditioning access on a First Amendment waiver should be unconstitutional.
But it isn't under current doctrine. And my claim is a narrow one-- that under current doctrine, I could very well see a holding that: (1) this constituted a binding promise not to harass, and (2) that the government is allowed to extract that promise as a condition of providing access to the database.
2.14.2008 11:28pm
whit:
"Actually, one deeper question in all this is whether the government should be able to place greater restrictions on the use of public records now that they are all computerized and some of the obstacles to "misuse" of the information are so much lower than they used to be."

i would heartily say NO.

most of this info has, as you note, always been public, just not as convenient to access. in the past, you had to walk to the county assessor's office to get info that i can get in a few seconds on my computer.

if i know your name (and you own your house), i can easily find out where you live, what you paid for your house, etc. i can do other public record searches online and find out your DOB (especially easy from voter records), from other;s i can find out your spouses name, etc.

etc. etc.

we don't place greater restrictions on speech just because it's MUCH easier to broadcast speech than it was in the past (think the world wide web, blogs, newsgroups, etc.).

we don't curtail rights, just because they got easier to exercise (and thus, easier to abuse).

i can't believe that alleged libertarians would even consider this a question.

information is either public or not.

so what if the technology is easier (and thus, more abusable). this is a free society. we punish the criminals who use the info for criminal purposes, we do NOT punish society by taking away their access and right to disseminate.
2.15.2008 10:59am
nannystate:
Taking issue with whit:

Whit, you evidently are fuzzy on California law though you sound like an expert. First, see Department of Justice v. Reporters Committee for Freedom of the Press which is, so far, the law of the land re: criminal records.

Next:

There are provisions in state constitutions that may provide additional privacy protections. For example, the California constitution was amended in 1972 to recognize expressly the right of privacy. The interests that the amendment was intended to protect include "the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party." There is limited case law interpreting state constitutional privacy provisions.

http://www.cdt.org/privacy/pubrecs/pubrec.html

But most important, this disclaimer at the Megan's Law site has little to do with free speech or privacy or harassment. All of the disclaimers were included for one purpose and for one purpose only: TO GET BY THE EX POST FACTO CLAUSE of the California and U.S. Constitutions. No other reason!

And it's kind of funny that you talk about the nanny state when you want Big Brother to sit with you at the computer and tap you on the shoulder. "Pssst, hey," he says. "if not for me you wouldn't be empowered."

This particularly disingenuous when the police themselves successfully argued that their disciplinary files should remain private in Copley Press v. Superior Court.

SUPREME COURT RULES TO PROTECT PRIVACY RIGHTS OF PEACE OFFICERS

"On August 31, 2006, the California Supreme Court decided an important case that will significantly protect the privacy rights of law enforcement officers throughout the State (Copley Press v. Superior Court). The Court ruled 6 to 1 in a decision authored by Justice Ming Chin that neither the media nor members of the public may have access to police discipline records filed or created during administrative appeals, including the identity of an officer who has been terminated unless the officer waives his or her privacy right."

http://www.poracldf.com/

Hypocrisy, anyone?
2.15.2008 11:59am
whit:
"And it's kind of funny that you talk about the nanny state when you want Big Brother to sit with you at the computer and tap you on the shoulder. "Pssst, hey," he says. "if not for me you wouldn't be empowered."


not at all, but i believe that (especially the federal) govt. has very limited roles, far less than has been granted it via expansion of powers.

but one role they DO have is to allow access to information. we don't have a secret society (except in the war on terror :) ). arrests are public, convictions are public, etc.

SURE this information can be abused.

my point is that we should punish the criminals. we should not punish the citizenry by limiting access to, or dissemination of... information that yearns to be free.

"On August 31, 2006, the California Supreme Court decided an important case that will significantly protect the privacy rights of law enforcement officers throughout the State (Copley Press v. Superior Court). The Court ruled 6 to 1 in a decision authored by Justice Ming Chin that neither the media nor members of the public may have access to police discipline records filed or created during administrative appeals, including the identity of an officer who has been terminated unless the officer waives his or her privacy right"

while that would NEVER fly in Washington state...

those aren't criminal records. and *i* didn't support or lobby for that decision. so, I am not being disingenous. in WA state those records most definitely ARE public.

but there is a difference between CRIMINAL records and administrative records. sex offender status is pursuant to criminal convictions.

police unions are of course going to lobby for such things. there job, like ALL unions, is as an advocacy group to protect THEIR group OVER and sometimes AGAINST the rights of others. that's true of all unions, and an issue with unions that i have tacitly admitted many times. they don't advocate for the common good. they advocate for THEIR good - see: teachers, cops, firefighters, etc.

but i totally take issue with your claims of hypocrisy and disingenuousness since i have never CLAIMED that police discipline records (for sustained complaints) SHOULD be private.

so, you are falsely accusing me.
2.15.2008 1:01pm
David M. Nieporent (www):
"It is a crime to use the information disclosed on the Attorney General's Internet Web site to commit a misdemeanor or felony."
Wait, it's a crime to commit a misdemeanor or felony? Since when?
2.15.2008 3:28pm
markm (mail):
David: "Piling on" penalties has become so commonplace that people don't even think about it anymore...
2.15.2008 3:58pm