I attended the oral arguments for the criminal law case of People v. Minnis, number 119563, today before the Illinois Supreme Court.  The oral arguments were held at Benedictine University, in Lisle, Illinois.

The issue raised in Minnis was “[W]hether the First Amendment is violated by 730 ILCS 150/3(a), which requires that a registered sex offender report all “Internet communications identities” and URL’s which he or she uses or plans to use and all blogs or other sites which the registrant maintains or to which he or she has uploaded any content or posted information, because the statute chills expressive activity that is protected by the First Amendment and is not limited to communications which concern the legitimate State interest of protecting the public and minors.”  In Minnis, a juvenile who was originally adjudicated delinquent for a class A misdemeanor offense and required to register under the criminal sex offender registration law subsequently failed to register his Facebook account several days after uploading a new profile picture.  The juvenile had provided the information in previous registrations but forgot to list Facebook in his most recent registration.  The Defendant was later charged with a class 3 felony in McLean County, Illinois.  The trial court found the statute unconstitutional. The challenge to the statute was two-fold, unconstitutional as applied and facially unconstitutional.  For the purposes of this article, I am going to disregard the unconstitutional as applied argument and focus on the facial challenge.

A facial challenge is a challenge to a statute in which the plaintiff alleges that the legislation is always unconstitutional.  The best argument which immediately struck me upon listening to oral arguments was not raised before the Court in oral arguments.  I have not had a chance to go through the briefs to determine whether it was raised in any brief.  However, it is a relatively clear challenge.

Under 730 ILCS 150/3(a),

             “A sex offender […] shall […] register in person and provide accurate information as required by the Department of State Police.  Such information shall include […] all e-mail addresses, instant messaging identities, chat room identities, and other Internet communications identities that the sex offender uses or plans to use, all Uniform Resource Locators (URLs) registered or used by the sex offender, all blogs and other internet sites maintained by the sex offender or to which the sex offender has uploaded any content or posted any messages or information.

In oral arguments today, there was a brief mention about jurisdiction and whether the Court lacked jurisdiction to address the section regarding e-mail addresses, instant messaging identities, chat room identities, and other Internet communications identities that the sex offender uses or plans to use, or the URL’s section.  The sole argued challenge referencing unconstitutionality as applied was with respect to the requirement that the Defendant register all blogs or other internet sites to which the sex offender has uploaded any content.  Setting aside jurisdictional issues, the first step in the analysis is to determine whether the First Amendment is implicated.

Under prior case law, anonymity and posts are considered protected speech.  Therefore, the statute, at the very least, does implicate protected speech rights.  The next step in the analysis is to determine whether the statute is content neutral.  The statute does appear to be content neutral, because it does not control what speech was made, it merely requires notification of where the speech was made.  Because the statute implicates the First Amendment, the most favorable potential standard of review for the State in this case is probably intermediate scrutiny, which would require the statute to further an important governmental interest, and the means used to regulate the speech must be substantially related to the interest. Under the Defendant’s claim of strict scrutiny, the State would be required to show a compelling governmental interest, the law is narrowly tailored to achieve the goal or interest, and that the means used is the least restrictive means available.

However, It is my belief that the sex offender registration requirement law fails even under rational basis review, which merely requires a law to be rationally related to a legitimate governmental interest.  In this case, the oral argument appeared to mix the facial challenge via the “overbreadth doctrine” of First Amendment jurisprudence, as described in People v. Clark, and the “as applied” challenge of future chilling of free speech by this Defendant.  Under the overbreadth doctrine, a law may be invalidated as unconstitutional if a substantial number of its applications are unconstitutional.

In the facially unconstitutional challenge that I raise, all first time registrants must provide the following information:

“All Uniform Resource Locators (URLs) registered or used by the sex offender, all blogs and other internet sites maintained by the sex offender or to which the sex offender has uploaded any content or posted any messages or information.”

  The phrase, “All blogs and other internet sites which the sex offender has uploaded any content or posted any messages or information” is almost completely a subset of the phrase, “All Uniform Resource Locators used by the sex offender”, with the exception certain specialized internet applications such as FTP. Most importantly, there is no limitation on how far back in time a registrant must provide information.  As compared to the phrase “uses or plans to use” as written earlier in the law, the phrase “used” is in the past tense.  “Used” requires the registrant to provide all websites the registrant has historically used.

In legal terms, the statute strips the anonymity of speech which was protected and made prior to conviction, and also requires a registrant to provide every website that they have ever visited prior to being legally required to keep track of their internet browsing history.  The failure to do so subjects every single registrant to a class 3 felony.

Phrased in plain English, all sex offenders must remember and register every single website they have ever visited since they were born.  Every webpage that they have ever typed a single word into must be revealed.  The failure to register any website means they could go to the Illinois Department of Corrections for up to five years.

Under such a reading of the statute, it seems a stretch for the State to even satisfy a rational basis standard of review. The information sought, being an entire lifetime’s worth of internet surfing, is so minimally related to the harm sought to be protected against, being the dual prongs of community safety and assisting officers in their investigations.  If we look at recent Supreme Court holdings, the Court has been slowly recognizing that a tremendous portion of a person’s life can be accessed through their electronic data.  See: Riley v. California.  It is hard to see how registration of every website a Defendant visited twenty years ago is rationally related to a legitimate government interest.   

The statute has problems even if we  only look specifically at the section of the statute which Minnis challenged – All blogs and other internet sites which the sex offender has uploaded any content or posted any messages or information.  Under this requirement, the State argued that “content” meant only other images or other files.  However, “content” is not defined in the statute.  “Content”, in fact, is every bit of information entered.  For example, if I visit Google.com and I type in “Baseball”, I have uploaded the search string, “Baseball”, as content to a search engine, which will then return my results.  Thus, I must list Google as a website I have uploaded content to.  That applies to every website I have input information to.  For example, if a Defendant were to personally donate to the NRA, under the “Money is speech” analysis, the entering of any credit card information is also speech which requires reporting.

To cast this matter in a different light, if the statute is designed to safeguard over the “internet community” a defendant frequents, then the statute fails as overbroad because it watches over every single location a defendant has ever visited in their entire lifetime.  The real world equivalent to that would be for the Defendant to be required to remember and report each and every single word they have ever spoken or place they have gone to, including instances which occurred prior to them being placed on the Sex Offender Registry.

We can examine this case at the limits of prosecutorial discretion by considering a hypothetical.  The offense is committed at the time of the failure to register, not the time of the internet usage.  In other words, suppose a Defendant used two webpages in their past and has never visited them again.  It does not matter which two.  The Defendant fails to register either webpage.  The State later obtains a copy of the computer the Defendant used pursuant to the terms of probation and discovers the failure to register.  The State duly charges the Defendant with a class 3 felony for failing to register the first webpage, and the Defendant is later convicted of the same.  At the next registration period, the Defendant fails to register the second webpage.  The failure to register the second webpage constitutes a new offense which was committed subsequent to the first offense, subjecting the Defendant to an extended term eligible ten years in the Illinois Department of Corrections.  I believe it was brought up in oral arguments that the Defendant could be required to register up to four times in one year.  Therefore, the Defendant can be convicted of up to four felonies per year for the rest of their life.

I sincerely hope this argument was raised in the briefs presented to the Court.

10/21/2016 Update:

The arguments presented above were not contained within the briefs.  The Illinois Supreme Court issued their opinion today.  People v. Minnis Opinion.  The basic analysis follows my analysis exactly, up to the decision that content neutral intermediate scrutiny was appropriate.  From there, it diverges because the argument presented to the Court was only that the previous years information required reporting, instead of the argument that all information without limitation to time was subjected to reporting.  It is unfortunate that none of the arguments above were presented to the Illinois Supreme Court, because they would have substantially broadened the “class” of innocent conduct which was required instead of being limited to only one year.  However, that is one of the basic aspects of the legal system – The Court only issues an opinion based on the arguments before them, not what the arguments could have been.

6/19/17 Update:

The U.S. Supreme Court has come down with its decision of a similar issue in Packingham v. North Carolina. The issue in Packingham was based upon the same type of challenge. The distinguishing factor between Packingham and Minnis is that Packingham was prohibited from even visiting social media websites, whereas Minnis requires registration from each website visited. At first, that would appear to be quite the distinguishing factor. However, I think it makes the Minnis case a much closer decision because Packingham essentially states there is not enough purpose to ban people from social media websites. If that is the case, and the speech is neutral and permitted in value, what is the purpose of making each Defendant, especially a juvenile, register their internet usage? At the very least, it seems to provide a small leg for those challenging Minnis to stand on.