In November 2012, more than ten million Californians voted to enact Proposition 35, the Californians Against Sexual Exploitation (CASE) Act.1 This ballot initiative, the most popular in the state’s history, set forth a number of measures intended to combat human trafficking.2 Most notably, the law required that all registered sex offenders provide law enforcement with written notice, within twenty-four hours, of any additions or changes to their “Internet identifiers” — email addresses, usernames, and the like — or Internet service providers.3 Recently, in Doe v. Harris,4 the Ninth Circuit upheld a preliminary injunction barring enforcement of the provisions of the CASE Act related to Internet use by sex offenders who have completed their terms of probation and parole,5 finding that these measures were likely to fail intermediate First Amendment scrutiny.6 Yet the Supreme Court’s growing skepticism of laws that apply to particular classes of speakers suggests that the Ninth Circuit could have adopted a higher level of scrutiny when reviewing the CASE Act. Such a decision would have served to shore up First Amendment protections for those who need them most: uniquely unpopular and politically powerless groups.
The CASE Act was billed as an attempt to “combat human trafficking and exploitation.”7 It proposed a variety of measures to achieve this goal, including a requirement that registered sex offenders provide a list of “any and all Internet identifiers [that they had] established or used,”8 including email addresses, usernames, screen names, and “similar identifier[s],”9 as well as “any and all [of their] Internet service providers.”10 Any additions or changes to these lists would have to be reported, via written notice, to law enforcement within twenty-four hours,11 and violation of these provisions would be punishable by up to three years in prison.12 On the day that the Act was intended to take effect, two individual plaintiffs13 and the nonprofit group California Reform Sex Offender Laws, representing a “class of registered sex offenders who regularly use the Internet to advocate anonymously on behalf of sex offenders,”14 filed suit, alleging that the Act’s Internet-use measures violated the offenders’ First Amendment rights to free speech and free association and were void for vagueness pursuant to the Fourteenth Amendment.15
The district court issued an order granting plaintiffs’ request for a preliminary injunction, finding that they were likely to succeed on the merits of their free speech claim.16 The court dismissed plaintiffs’ argument that strict scrutiny was warranted in light of the fact that the CASE Act discriminated against a class of speakers, noting that this level of scrutiny was required only when “speaker-based laws . . . reflect the Government’s preference for the substance of what the favored speakers have to say.”17 The court next concluded that the CASE Act was content neutral and, as such, intermediate scrutiny was warranted.18 Even after adopting several narrowing con-structions,19 the court found that, while the CASE Act may advance a “legitimate government interest,” namely combating online sex offenses and human trafficking, it was not narrowly tailored.20 The court thus concluded that the CASE Act’s Internet-use provisions “create[d] too great a chilling effect to pass constitutional muster.”21 As such, the court held that a preliminary injunction was appropriate in this case.22
The Ninth Circuit affirmed. Writing for a unanimous panel, Judge Bybee23 first noted that “sex offenders who have completed their terms of probation and parole,” such as the plaintiffs in this case, are entitled to the full protection of the First Amendment.24 Turning next to the question of whether the CASE Act implicates the First Amendment,25 Judge Bybee argued that, while the Act does not prohibit speech, its notification requirement burdened sex offenders “precisely when they are engaged in one activity — communicating through the Internet.”26 These provisions thus constituted a burden on speech that was subject to First Amendment scrutiny.27 Judge Bybee drew further support for this conclusion from both the CASE Act’s “inevitable effect” on “sex offenders’ ability to engage in anonymous online speech”28 and the tradition of subjecting “speaker regulations — such as disclosure requirements — to First Amendment scrutiny.”29
Judge Bybee next addressed the level of scrutiny appropriate in this case.30 Finding that the CASE Act makes “no reference to specific subject matters or viewpoints,”31 he concluded that the Act is “content neutral” and thus subject to intermediate First Amendment scrutiny.32 “[M]ore difficult,” Judge Bybee opined, was the question of whether the CASE Act warranted a higher level of scrutiny because its Internet-use provisions constituted a speaker-based restriction.33 Judge Bybee considered the possibility that the Court’s statement in Citizens United v. FEC34 that the First Amendment bars “restrictions distinguishing among different speakers; allowing speech by some but not others”35 suggested that the CASE Act should be subject to strict scrutiny.36 Judge Bybee acknowledged that the CASE Act, like the law at issue in Citizens United, creates a speaker-based distinction by “singl[ing] out registered sex offenders as a category of speakers.”37 However, he found that Citizens United was distinguishable from the instant case due to the fact that the CASE Act neither “target[s] political speech content” nor constitutes “a ban on speech.”38 Thus, the relevant inquiry was whether the CASE Act’s restrictions can be “justified without reference to the content of the regulated speech.”39 Arguing that the Act’s purpose was not to favor any particular viewpoint or subject matter but rather to combat human trafficking and sexual exploitation, Judge Bybee again concluded that intermediate scrutiny was warranted.40
Judge Bybee then found that the Internet-use provisions of the CASE Act were likely to fail intermediate First Amendment scrutiny. While the Act was clearly intended to further a legitimate governmental interest — combating sexual exploitation41 — it nonetheless unnecessarily chilled speech protected by the First Amendment.42 In particular, the court found that three aspects of the law could unnecessarily deter “sex offenders from engaging in legitimate expressive activity”: the significant ambiguity regarding the information sex offenders were required to report, the absence of adequate constraints on law enforcement’s ability to disclose sex offenders’ Internet identifiers to the public, and the short timeframe in which sex offenders were required to report any changes to their Internet identifiers.43 Judge Bybee thus held that a preliminary injunction was appropriate in this case.44
Doe v. Harris has been rightly heralded as an important stepping stone in establishing constitutional safeguards for anonymous Internet speech.45 However, the Ninth Circuit passed over an opportunity to strengthen the First Amendment protections provided to unpopular and politically powerless speakers by electing not to expand upon the Supreme Court’s growing skepticism of speaker-based restrictions — evinced in Citizens United and Sorrell v. IMS Health Inc.46 — and apply a heightened level of scrutiny in this case. These decisions suggest a growing aversion to certain speaker-based restrictions, the exact contours of which remain unclear. Yet there is good reason to believe that this nascent doctrine could and should be extended to protect not only the interests of corporations47 but also politically powerless and unpopular individuals, such as the plaintiffs in this case.48 Regulations like the CASE Act, which restrict the speech of disfavored speakers, not only inherently raise the possibility that the government may have attempted to burden these individuals’ speech for improper purposes, but also may have a uniquely harmful effect on both the targeted speakers and the broader “marketplace of ideas” protected by the First Amendment.
For decades, the organizing principle underlying the Supreme Court’s approach to determining the level of First Amendment scrutiny when evaluating a regulation or statute has been whether the law at issue is content neutral or content based.49 Yet as the Ninth Circuit’s opinion in Doe acknowledges,50 in recent years the Supreme Court appears to have begun to recognize a separate inquiry when evaluating the level of scrutiny for First Amendment analysis: whether the law in question explicitly creates a speaker-based distinction. Two cases in particular, Citizens United and Sorrell, appear to have played a key role in establishing this principle. In Citizens United, the Court explicitly rejected “restrictions distinguishing among different speakers, allowing speech by some but not others,”51 when examining a law that barred corporations from making independent expenditures for speech that constituted “electioneering communications” or expressly advocated for the election or defeat of a candidate.52 Similarly, in Sorrell the fact that a law imposed a “content- and speaker-based”53 burden on commercial speech54 appears to have strongly influenced the Court’s decision to apply “heightened judicial scrutiny” to a regulation that prohibited pharmaceutical marketers and manufacturers from using pharmacy records that reveal doctors’ prescribing practices for marketing purposes.55
While the contours of this emerging doctrine remain unclear, the notion that the Supreme Court has begun to pay closer attention to, and require a greater level of scrutiny for, speaker-based laws has been gaining traction amongst scholars.56 Professor Michael Kagan in particular has championed this view, arguing that speaker-based distinctions should be understood as a “new pillar of free speech law.”57 Thus, while it may well be premature to suggest that any and all laws targeting specific speakers should be subject to a greater degree of scrutiny — as Judge Bybee correctly noted, many laws currently embrace such distinctions58 — the Ninth Circuit could have drawn more heavily upon the Court’s growing skepticism of speaker-based laws when evaluating the CASE Act.
Moreover, if there is any instance in which the growing skepticism of, and willingness to more closely examine, laws creating speaker-based distinctions should be applied, it would seem to be in the case of a regulation that targets the speech of uniquely unpopular and politically powerless speakers. As Justice (then Professor) Kagan once noted, the Court’s First Amendment jurisprudence can be understood as having “as its primary, though unstated, object the discovery of improper governmental motives.”59 The question of whether a law is “content-based” has long been viewed as a proxy for determining if such illicit purposes exist.60 Yet for groups such as sex offenders, who are “arguably the most despised members of our society,”61 some laws burdening their First Amendment rights can likely be understood not as an attempt to remove a particular type of “content” from public discourse but to limit the speech of disfavored speakers altogether. This concern is only heightened when the group whose speech has been targeted is not only unpopular but also politically powerless and is thus least able to combat laws, such as the CASE Act, that improperly suppress its speech. It therefore seems plausible that heightened scrutiny for speaker-based distinctions singling out unpopular speakers could and should play an important role in attempting to identify improper efforts to limit the speech of certain individuals.62
Furthermore, heightened review of speaker-based regulations is potentially even more important when the regulations at issue target the anonymous speech of an unpopular group. Such laws are likely to have a substantial impact on the affected group’s ability to give voice to its opinions and dramatically diminish the strength of what was likely already a limited number of voices. Indeed, the Supreme Court has previously highlighted the importance of anonymous speech to unpopular speakers, noting that “[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.”63 Moreover, if a court were to apply heightened scrutiny to speaker-based distinctions targeting unpopular groups, it would not be the first time that First Amendment doctrine acknowledged that otherwise acceptable burdens on speech may prove to be unduly onerous, and thus impermissible, when imposed upon disfavored speakers.64
While the future of the Supreme Court’s suspicion of speaker-based laws remains uncertain, it is clear that there are normative benefits to expanding the scope of Citizens United and Sorrell and applying a heightened level of scrutiny to laws that target not only corporations but also uniquely unpopular speakers. Moreover, litigation regarding regulations, such as the CASE Act, that target speakers who are amongst the most unpopular in our society, provides a unique chance to explore the potential contours of this emerging doctrine. Thus the Doe court may have passed over an important opportunity to extend, or more fully explore, the ambit of the Supreme Court’s First Amendment speaker-based protections.