Thu, 21 Sep 2023

(CN) - Although he declined to grant class-wide relief, a federal judge determined Thursday that disclosure of online aliases chilled sex offenders' ability to communicate freely, and also pointed out Connecticut has yet to use the law to prevent or detect any criminal activity.

U.S. District Judge Jeffrey Meyer, a Barack Obama appointee, acknowledged at the outset of his opinion that Connecticut General Statutes 54-251(a) and 54-253(b) do not bar anyone from speaking, but nevertheless agreed with plaintiff James Cornelio the laws burden his First Amendment rights.

"By compelling plaintiff to disclose to the state police all of his email addresses, social media accounts, and any other internet communication identifiers (such as the name he uses if he comments on an online news article)," Meyer said, "the law chills and inhibits his right to speak freely on the internet and to do so anonymously if he wishes." (parentheses in original)

Passed in 2007, the laws impose felony criminal punishments on sex offenders who refuse to disclose the identifiers at the time of their registration, or if they fail to provide updates if any online aliases change during their registration period.

Cornelio, convicted of several sexually based offenses in New York in 2005, was arrested in Connecticut in 2018 after he sent emails to state police from an email address not disclosed to the state.

The criminal case was eventually dismissed, and Cornelio filed a pro se lawsuit in federal court to challenge the disclosure law on First Amendment grounds.

Meyer initially dismissed the suit on the basis the state had a legitimate reason to monitor sex offenders to prevent and detect additional crimes, but the Second Circuit reversed upon finding he had misapplied intermediate scrutiny.

The appeals court determined the state was required to provide evidence the law either deterred or had been used to ferret out criminal activity, and upon reconsideration, Meyer agreed with Cornelio it had failed to do so.

"The state's burden here is to make some evidence-based showing of a causal nexus between the disclosure requirement and the important government interest ... [but] the state has not adduced any probative evidence on this causal nexus issue," he wrote.

Meyer went on to cite the state's own admissions the disclosure requirement has had no deterring effect and that it "can cite no instance in which law enforcement officials were unable to apprehend an individual committing sexual crimes using internet identifiers because they were unable to identify the person committing those crimes."

Despite providing examples of sex offenders who violated the disclosure law and went on to commit additional sex crimes, Meyer emphasized none of those criminals were apprehended because of the law.

According to Meyer, the 15 years since the passage of the laws has given the state more than enough time to gather evidence of their efficacy, but the dearth of expert testimony or concrete examples of its effectiveness is damning to its argument.

Given Cornelio was arrested in the past for a violation of the statute, his First Amendment rights would undoubtedly be chilled if the state was allowed to continue its enforcement of the law, Meyer said, and so he granted Cornelio's motion for declaratory and injunctive relief.

However, because Cornelio was the only party named in the complaint - which was not filed as a class action - the injunction to prevent enforcement of the law applies only to him, and not all other sex offenders in the state.

"To be sure," Meyer wrote, "it is hard to see how the state could legitimately defend its application of the disclosure law against any other sex offenders. The reasons that the law is invalid as to Cornelio would appear to apply with equal force to all other sex offenders.

"But Cornelio did not bring this action as a class action, and I am wary of taking the extraordinary step of granting relief to persons who are not parties before me."

Attorney Paul Dubbeling of the Chapel Hill, North Carolina, firm P.M. Dubbeling PLLC, who now represents Cornelio, was understandably happy with the court's decision.

"I am pleased with the outcome and appreciate the court's consideration of these important issues," he said.

The Connecticut Attorney General's office said it is "reviewing the decision and evaluating next steps."

Source: Courthouse News Service

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