From today’s Second Circuit opinion in Cornelio v. Connecticut, written by Judge Steven Menashi and joined by Judge Dennis Jacobs and District Judge John Cronan:
Second, the disclosure requirement applies specifically to speakers engaged in online communication. The disclosure requirement targets “conduct with a significant expressive element”—the use of communications identifiers—and therefore “has the inevitable effect of singling out those engaged in expressive activity.” The disclosure requirement imposes its burdens precisely when a registrant decides to engage in online speech using a communication identifier. That implicates the First Amendment, even if it is possible to distinguish between the identifier and the speech itself. When a law imposes “special obligations” or “special burdens” on those engaged in speech, “some measure of heightened First Amendment scrutiny is demanded.”
Third, the disclosure requirement prevents a registrant from speaking anonymously. A speaker’s decision “to remain anonymous … is an aspect of the freedom of speech protected by the First Amendment.” “Under our Constitution,” anonymous speech is “an honorable tradition of advocacy and of dissent.” Id. at 357. It “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.” The First Amendment protects this interest in anonymous speech as much on the internet as in other fora. “Although the Internet is the latest platform for anonymous speech, online speech stands on the same footing as other speech—there is ‘no basis for qualifying the level of First Amendment scrutiny that should be applied’ to online speech.”
The disclosure requirement does not avoid First Amendment scrutiny because the identifiers are disclosed to the government rather than to the general public. Cf. Ams. for Prosperity Found. v. Bonta (2021) (“Our cases have said that disclosure requirements can chill association even if there is no disclosure to the general public.”). It is “offensive … to the values protected by the First Amendment” that “a citizen must first inform the government of her desire to speak.” Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of Stratton (2002)….
The district court determined that the disclosure requirement “is not subject to strict scrutiny but instead to intermediate scrutiny” because the burden on speech “is content-neutral and not impermissibly speaker-based.” We need not decide in this appeal whether strict or intermediate scrutiny properly applies. Cornelio does not contest the district court’s application of intermediate scrutiny and, because he states a plausible claim even under intermediate scrutiny, the level of scrutiny would not alter our decision. We proceed on the assumption that intermediate scrutiny is the appropriate standard….
The burden of demonstrating that the disclosure requirement satisfies intermediate scrutiny falls on the government. To carry that burden, the government must show that the challenged law “(1) ‘advances important governmental interests unrelated to the suppression of free speech’ and (2) ‘does not burden substantially more speech than necessary to further those interests.'”
To establish that the law advances important governmental interests, the government “must do more than simply posit the existence of the disease sought to be cured. It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” When “trenching on first amendment interests, even incidentally, the government must be able to adduce either empirical support or at least sound reasoning on behalf of its measures.” Therefore, the government cannot rely on “speculation or conjecture.” …
The government argues that the disclosure requirement advances important governmental interests in deterring registrants from using the internet (1) to “recruit, groom, entice, or otherwise engage in communications with potential or actual sex abuse victims” and (2) to “engage in the distribution or exchange of prohibited sexual images.” Assuming that these interests in deterrence are important and legitimate as well as genuine, nothing in the record demonstrates that the disclosure requirement advances these interests in a “direct and material way,” or provides more than “ineffective or remote support” for these objectives.
With no evidence demonstrating that the disclosure requirement materially provides deterrence, the government relies on two speculative propositions. First, a registered sex offender is less likely to engage in sex-based crimes on the internet if he knows that law enforcement possesses his email address and other internet communication identifiers. Second, the disclosure requirement provides law enforcement with a database that can be used to determine the identity of someone engaged in online sex offenses.
The government, however, has not substantiated the deterrent effect and has not indicated whether the database has ever even been used. Perhaps the government’s speculation may turn out to be justified, but at this stage we cannot say that the government “has drawn reasonable inferences based on substantial evidence,” and “accepting speculation in place of record evidence[ ] does not amount to intermediate scrutiny.”
A developed record may undermine the government’s assertions. For example, in reviewing Michigan’s sex offender registration law, the Sixth Circuit observed that “evidence in the record” supported “a finding that offense-based public registration has, at best, no impact on recidivism.” See also Doe v. Prosecutor (7th Cir. 2013) (questioning whether, once sex offenders “are willing to break the existing anti-solicitation law,” a law prohibiting the use of social networking would “provide any more deterrence”). The government also may not be able to show that the database of internet identifiers has actually assisted law enforcement efforts to arrest online predators. There would be a “dramatic mismatch” between the asserted interest and “the disclosure regime that [the government] has implemented in service of that end” if “there was not a single, concrete instance” in which the database “did anything to advance the [government’s] investigative, regulatory or enforcement efforts.”
The government may be able to identify some empirical basis for believing that the disclosure requirement materially advances an important governmental interest. At this stage, however, Cornelio has stated a plausible claim….
[E]ven assuming that the disclosure requirement materially advances [its deterrence] interests, the disclosure requirement plausibly imposes an extra burden that unnecessarily chills protected speech.
The government cannot normally justify a speech restriction by reference to its interest in deterring crime. “The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it” rather than by regulating speech. To show that the disclosure requirement is narrowly tailored, the government must explain why criminal sanctions that do not implicate the First Amendment would not provide adequate deterrence. It has not done so…..
Even if the government had, Cornelio argues, the breadth of the disclosure requirement provides another reason to doubt that it is narrowly tailored. Registered sex offenders must disclose their “electronic mail address, instant message address or other similar Internet communication identifier.” Cornelio argues that the catch-all phrase “Internet communication identifier” broadens the disclosure requirement to internet platforms with “any information input,” such as “Pacer and bank accounts.” In response, the government provides a narrower construction: the phrase “Internet communication identifier” limits the disclosure requirement to platforms that can be used to communicate with others online. In other words, the disclosure requirement applies to internet platforms “that … allow back-and-forth comments between users.”
At the motion to dismiss stage, we cannot say that Cornelio does not plausibly allege that the disclosure requirement is overbroad. Many platforms that allow communications between users do not reasonably present a vehicle by which a sex offender can communicate with minors or exchange prohibited sexual materials. “Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” Perhaps the statute may be construed more narrowly than the government suggests on appeal. But we “need not decide the precise scope of the statute” to conclude that Cornelio states a claim.
The disclosure requirement also plausibly appears to be overbroad because it applies to all persons subject to the sex offender registration law, including registrants who have never engaged in the sort of illicit online activity that the government seeks to deter. If the disclosure requirement applies to a broad class beyond those who are likely to engage in the conduct the government seeks to deter, it would be “significantly overinclusive” rather than narrowly tailored. The government has not explained why the disclosure requirement cannot be more narrowly targeted. As other courts have noted, “[a] regulatory scheme designed to further the state’s legitimate interest in protecting children from communication enticing them into illegal sexual activity should consider how and where on the internet such communication occurs.” To show narrow tailoring, the government must demonstrate that a less burdensome alternative—requiring disclosure only for those online platforms that facilitate solicitation or the exchange of illicit material, for example, or only for those persons likely to engage in such conduct—would not advance the asserted governmental interests.
The government argues that the disclosure requirement is narrowly tailored because, under the registration statute, the DESPP may share a registrant’s internet communication identifiers only with “law enforcement officials” and only for the “purpose of investigating potential crimes.” As a result, a registrant can “participate in anonymous speech online” as long as he does not engage in unlawful activity that could “engender a law enforcement investigation.” This argument does not answer the narrow tailoring inquiry, which focuses on “the extent to which the burdens are unnecessary.” It helps the government’s case if the disclosure requirement does not compound the burden on speech by releasing a registrant’s identifiers to the public. But the government must still justify the burden that exists. “There is no de minimis exception for a speech restriction that lacks sufficient tailoring or justification.” …