Free Speech for All?

As Justice Lewis Powell wrote in 1980 in Central Hudson Gas & Electric Corp. v. Public Serv. Commission, "there is no de minimis exception for a speech restriction that lacks sufficient tailoring or justification.”

Even for someone convicted of a sex offense, like James Cornelio, who was required to divulge internet identifiers to the state of Connecticut so the state could monitor his conversations and have access to past exchanges? A three-judge panel of the Second Circuit Court of Appeals seemed to think so in an opinion issued last month.

The Second Circuit found that plaintiff James “Cornelio has stated a plausible First Amendment claim,” in a lawsuit he brought against Connecticut officials. The Circuit decision reversed a district court that went the other way.

A former New York City lawyer, Cornelio was convicted of sex offenses involving a minor in 2005. When he moved to Connecticut, Cornelio was asked to share his email and other internet identifiers to comply with the state’s sex offender registration requirements, a requirement that states must impose to comply with the federal SORNA law. 

Outraged by this invasion of his privacy, Cornelio sued the state claiming that the requirements for sex offenders’ email identifiers violate the First Amendment. Cornelio contested the requirement on the ground that it infringes on his ability to express himself freely and anonymously online.

Cornelio further alleged that he was subjected to malicious prosecution in violation of the Fourth Amendment by a detective “seeking an arrest warrant for Cornelio’s alleged failure to disclose one of his email addresses.” (But the Second Circuit upheld the district court’s dismissal of this claim).

In 2018, Cornelio was arrested for not providing his email and internet identifiers, even though he did not use internet communications illegally in committing the underlying crime. Defying the Connecticut’s sex offender email requirements “can result in a class D felony punishable by up to five years in prison and a $5,000 fine.” Indeed, Cornelio’s violation of the Connecticut statute was discovered only after he communicated with the police through his unregistered email address.

The State of Connecticut argued that providing the information is required to deter registrants from using the internet to "recruit, groom, entice, or otherwise engage in communications with potential or actual sex abuse victims" or "engage in the distribution or exchange of prohibited sexual images." According to lower court Judge Jeffrey Meyer, the requirements deter people from trying to entice potential victims while remaining anonymous online, since police would have their email address and other identifying information. However, the district judge did acknowledge that the state’s requirement “inhibits to some degree the exercise of (Cornelio's) right to engage in anonymous speech activities on the Internet.”

The Second Circuit reinstated Cornelio’s free speech claim: “the disclosure requirement plausibly imposes an extra burden that unnecessarily chills protected speech.” Moreover, the panel agreed with Cornelio about the fact that the “government cannot normally justify a speech restriction by reference to its interest in deterring crime.” According to Circuit Judge Steven Menashi, any governmental infringement on First Amendment speech must be justified with substantive evidence of its effectiveness “in a direct and material way,” which the government may not be able to show here.

In other words, the Constitution does not permit limits on free speech as a preventative: speech should not be limited or restricted preemptively.

Cornelio’s claim is not the first suggesting that even people convicted of sex offenses are protected by the First Amendment. In 2017, the United States Supreme Court struck down a North Carolina law that barred convicted sex offenders from Facebook, Twitter and other popular sites reasoning that it prevented offenders from engaging in the legitimate exercise of First Amendment rights.

Just two years ago, requiring people who committed certain sex crimes to carry around state-issued ID cards with the words “Sex Offender” printed on them in bright orange  capital letters was deemed unconstitutional by the Louisiana Supreme Court (the International Megan’s Law requirement that registrants carry a passport identifying them as sex offenders remains in effect).

Do rules like restricting internet use authentically address the state’s concern of protecting potential victims or, instead, build a societal structure centered around obedience? In our experience, preemptively restricting people’s right to free speech impedes their re-integration into society; it sets them up for failure. We can only hope that Mr. Cornelio is successful in showing that Connecticut’s restrictions violate the First Amendment.

ZMO Law Paralegal Lara Dreux provided invaluable assistance in researching and drafting this post.