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Portions of Proposition 35 Ruled UNCONSTITUTIONAL by Federal District Court Judge

Posted by Seth Chazin | Mar 15, 2013 | 0 Comments

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In November, 2012, Californians passed Proposition 35, the Californians Against Sexual Exploitation Act.  It was passed by one of the widest margins for any proposition in California history. Eighty One percent of those Californians that voted supported the proposition. However, on the day that the proposition became law, a class action lawsuit was filed by the ACLU and others, claiming that parts of the law are unconstitutional. On January 11, 2013 in San Francisco, United States District Court Judge Thelton Henderson agreed with the ACLU and blocked the implementation of portions of the law by way of a preliminary injunction. The preliminary injunction will remain in effect until a trial is held to determine whether there should be a permanent injunction issued. A trial date has not yet been scheduled.

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Proposition 35 dramatically increases the reporting requirements for all existing California registered sex offenders and added, for the first time, people convicted of human trafficking to those required to register. Under the law, over 75,000 registered sex offenders would have to register all internet identifiers and service providers they currently use as well as report any changes to these within 24 hours. Identifiers include all login ID's, passwords, social network accounts, email addresses, and user names. Under the law, a violation of these reporting requirements is punishable by up to 3 years in prison. These requirements continue for as long as the person is a registered sex offender, in most cases for life, and are required whether the original offense was related to internet use or not.

Judge Henderson stated that, although the State of California had a legitimate interest in protecting people from online sex crimes and human trafficking, the State actions limiting First Amendmentfree speech rights must be narrowly tailored to accomplish that interest. Henderson found that the requirements of Proposition 35 were overly broad and violate the sex offenders' free speech rights.The law would require registered sex offenders to disclose all internet activity including online public forums, online banking, even restaurant reservations. Henderson wrote, “Registrants are likely to be chilled from engaging in legitimate public, political and civic communications for fear of losing their anonymity.” “[A]nonymity”, he went on to say, “is a shield from the tyranny of the majority [and the plaintiffs] enjoy no lesser right to anonymous speech simply because they are unpopular.”

Proponents of the law have vowed to fight the preliminary injunction at trial.


About the Author

Seth Chazin

Seth P. Chazin has aggressively defended clients in thousands of felony and misdemeanor cases for over 25 years. He has extensive experience representing criminal defendants in federal and state court, while handling both state and federal appeals as well.

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Seth P. Chazin is a San Francisco Bay Area Criminal Defense Lawyer with over 25 years experience.

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