In the 2012 general election, California's voters overwhelmingly approved Proposition 35, a human trafficking ballot initiative. Proposition 35 enacted the Californians Against Sexual Exploitation Act (CASE Act), which requires that anyone who is a registered sex offender-including people with misdemeanor offenses such as indecent exposure and whose offenses were not related to activity on the internet-to turn over to law enforcement their e-mail addresses, user and screen names, or any other identifier they used for instant messaging, for social networking sites, or at online forums and in internet chat rooms.

On November 7, 2012, The American Civil Liberties Union and the Electronic Frontier Foundation, filed suit in the U.S. District Court for the Northern District of California on behalf of two registered sex offenders and a putative class of all such persons, as well as a website on which sex offender laws are discussed and debated. The plaintiffs sought class certification as well as declaratory and injunctive relief under 42 U.S.C. § 1983 against the State of California. The complaint alleges that the requirements of the law will burden and chill protected speech, in violation of plaintiffs' rights under the First Amendment, Due Process Clause, Equal Protection Clause, and Ex Post Facto Clause of the United States Constitution.

The case was assigned to U.S. District Judge Thelton Henderson in San Francisco, who immediately granted a temporary restraining order blocking enforcement of the law. Doe v. Harris, 2012 WL 6101870 (N.D. Cal. Nov. 7, 2012). At this point, two private citizens who were proponents of Proposition 35 intended to intervene as co-defendants. On January 10, 2013, Judge Henderson granted their Motion to Intervene. Doe v. Harris, 2013 WL 140053 (N.D. Cal. Jan. 10, 2013). The Court noted that the interveners were not entitled to intervene but the Court permitted it anyway in the hope that their intervention would contribute to a just and equitable resolution of the disputes.

On January 11, 2013, Judge Henderson granted the plaintiffs' Motion for a Preliminary Injunction. Doe v. Harris, 2013 WL 144048 (N.D. Cal. Jan. 11, 2013). The court applied intermediate scrutiny. The court found that the state government had failed to demonstrate that the reporting requirement under the CASE Act was narrowly tailored to serve its legitimate interests in protecting individuals from sex offenses and human-trafficking. Accordingly, the court concluded that the plaintiffs were likely to succeed on their First Amendment speech claim, noting that the plaintiffs enjoyed no lesser right to anonymous speech simply because they were unpopular. Therefore, the court enjoined the state government and all law enforcement personnel from implementing the reporting requirement under the CASE Act.

The State and two private intervenors appealed the decision to the United States Court of Appeals for the Ninth Circuit. The district court stayed the proceedings pending the appeal. As of September 24, 2014 the appeal is ongoing.

Emma Bao - 06/17/2013
Richard Jolly - 10/14/2014
- 10/14/2014


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