Doe v. Shurtleff , 628 F.3d 1217 ( 2010 )

  •                                                                    FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                                                                 October 26, 2010
                                        PUBLISH                Elisabeth A. Shumaker
                                                                   Clerk of Court
                      UNITED STATES COURT OF APPEALS
                             FOR THE TENTH CIRCUIT
     JOHN DOE,
     v.                                                  No. 09-4162
     MARK SHURTLEFF, Office of the
     Attorney General for the State of
     Utah, in his official capacity,
                        FOR THE DISTRICT OF UTAH
                         (D.C. No. 08–CV–00064–TC)
    Elizabeth G. Eager (Emmet J. Bondurant, II, and Nicole G. Iannarone with her on
    the briefs), of Bondurant, Mixson & Elmore, LLP, Atlanta, GA, for Plaintiff-
    Nancy L. Kemp, Assistant Utah Attorney General (Sharel S. Reber, Assistant
    Utah Attorney General, and Mark L. Shurtleff, Utah Attorney General, with her
    on the brief), Salt Lake City, UT, for Defendant-Appellee.
    Before GORSUCH, McKAY, and CUDAHY *, Circuit Judges.
    McKAY, Circuit Judge.
           Honorable Richard D. Cudahy, Circuit Judge, United States Court of
    Appeals for the Seventh Circuit, sitting by designation.
          In this case John Doe, a registered sex offender living in the state of Utah,
    appeals the district court’s decision to allow enforcement of a Utah statute
    requiring all sex offenders living in Utah to register their “internet identifiers”
    and the corresponding websites with the state. We now uphold that decision
    based on our conclusion that the statute does not violate the First or Fourth
    Amendments or the Ex-Post Facto Clause of the United States Constitution, made
    applicable to Utah through the Fourteenth Amendment.
          Appellant, proceeding anonymously as Mr. John Doe, was convicted by the
    United States military court system of sex offenses involving a minor and
    sentenced to eighteen months’ imprisonment. After serving thirteen months of
    this sentence, Mr. Doe was released without being placed on probation or
    supervised release. However, as a resident of Utah and a convicted sex offender,
    Mr. Doe was still required to register with the Utah Department of Corrections,
    pursuant to Utah Code Ann. § 77-27-21.5 (West 2008). Among its many
    provisions, this registry law required Mr. Doe to provide all “Internet identifiers1
    and the addresses [he] uses for routing or self-identification in Internet
            The statute defined “online identifier” as “any electronic mail, chat,
    instant messenger, social networking, or similar name used for Internet
    communication.” Id. § 77-27-21.5(1)(j).
    communications or postings.” Id. § 77-27-21.5(14)(i). 2 The statute also required
    that Mr. Doe provide “all online identifiers and passwords used to access”
    websites where he was using an online identifier, with the exception of identifiers
    used for employment or financial accounts. Id. § 77-27-21.5(12)(j) & (29).
          Believing that these requirements violated his First and Fourth Amendment
    rights as well as the Ex Post Facto Clause of the United States Constitution, Mr.
    Doe refused to provide the requested information and brought a lawsuit
    challenging the law. Upon Mr. Doe’s motion for summary judgment, the district
    court invalidated the statute based on its conclusion that the statute, which
    provided “no restrictions on how the [State] c[ould] use or disseminate
    registrants’ internet information,” improperly infringed on Mr. Doe’s First
    Amendment right to anonymous speech. (Appellant’s App. at 208.) Shortly after
    this ruling, the Utah legislature amended the statute. First, the legislature
    removed any requirement that offenders disclose their passwords, and second, it
    placed some limits on how a state official can use identifiers provided by an
    offender. Specifically, the statute now 3 provides that
            This provision is now located in subsection (14)(i), pursuant to changes in
    the statutory structure made shortly after the district court’s ruling.
            In addition to the amendment made shortly after the district court’s ruling,
    the Utah legislature has made several more recent changes to section 77-27-21.5,
    including changes that went into effect after the parties had filed their briefs.
    Accordingly, we here cite to Utah’s current code, and not to the statute as it
    existed at the time the parties submitted their arguments.
             The [state], to assist in investigating kidnapping and sex-related
             crimes, and in apprehending offenders, shall:
              (a) develop and operate a system to collect, analyze, maintain, and
              disseminate information on offenders and sex and kidnap offenses;
              (b) make information listed in Subsection (27) available to the
              public; and
              (c) share information provided by an offender under this section
              that may not be made available to the public under Subsection (27),
              but only:
                    (i) for the purposes under this Subsection (2); or
                    (ii) in accordance with [the Government Records
                   Access and Management Act].
    Utah Code Ann. § 77-27-21.5(2) (West Supp. 2010). Additionally, the legislature
    amended Utah’s Government Records Access and Management Act, or GRAMA,
    to designate certain information provided by an offender, including internet
    identifiers, as private. 4 See Utah Code Ann. § 63G-2-302(1)(m) (West Supp.
             Following these amendments, the State filed a motion for the district court
    to vacate its earlier order pursuant to Rule 60(b) of the Federal Rules of Civil
    Procedure. After considering the briefs, the district court granted the motion,
    holding that the new restrictions “diminished” the chilling effect on Doe’s speech
    so that his First Amendment right to anonymous speech was no longer
            Information designated as “private” by GRAMA may only be disclosed in
    limited circumstances such as when requested by the subject of the record, or
    pursuant to a court order or legislative subpoena. See Utah Code Ann. §§ 63G-2-
    201(5) (West Supp. 2010); id. § 63G-2-202. Additionally, the statute permits
    information sharing between different government entities and their agents but
    places “an entity receiving the record” under “the same restrictions on disclosure
    of the record as the originating entity.” Id. § 63G-2-206.
    “significantly threatened.” (Appellant’s App. at 292.) The court then concluded
    that the statute did not violate the Fourth Amendment because Mr. Doe had failed
    to show he had a reasonable expectation of privacy in his internet identifiers,
    which are communicated to a third party. Finally, the court held, relying on our
    earlier decision in Femedeer v. Haun, 
    227 F.3d 1244
    , 1246 (10th Cir. 2000), that
    the registry statute did not violate the Ex Post Facto Clause. Mr. Doe now
    appeals each of these rulings.
           We generally review a decision to grant a Rule 60(b) motion for an abuse
    of discretion. See Stubblefield v. Windsor Capital Grp., 
    74 F.3d 990
    , 994 (10th
    Cir. 1996). Nevertheless, we review the district court’s decision de novo where,
    as here, the district court granted relief as a matter of law. See Lyons v. Jefferson
    Bank & Trust, 
    994 F.2d 716
    , 727 (10th Cir. 1993) (“A district court would
    necessarily abuse its discretion if it based its rulings on an erroneous view of the
    law . . . .”).
    1. Mr. Doe’s claim under the First Amendment
           We first consider Mr. Doe’s contention that Utah’s registration statute
    violates his First Amendment right to engage in anonymous speech. That the First
    Amendment guarantees a right to anonymous speech is beyond question. As the
    Supreme Court explained in McIntyre v. Ohio Elections Commission, “Anonymity
    is a shield from the tyranny of the majority. It thus exemplifies the purpose
    behind the Bill of Rights, and of the First Amendment in particular: to protect
    unpopular individuals from retaliation—and their ideas from suppression—at the
    hand of an intolerant society.” 
    514 U.S. 334
    , 357 (1995) (citation omitted). That
    the right to engage in anonymous speech should extend fully to communications
    made through the medium of the internet is equally clear. See Reno v. ACLU, 
    521 U.S. 844
    , 870 (1997) (explaining that the internet allows “any person with a
    phone line [to] become a town crier with a voice that resonates farther than it
    could from any soapbox” and that “our cases provide no basis for qualifying the
    level of First Amendment scrutiny that should be applied to this medium”). In
    spite of these protections, however, a state may permissibly infringe upon this
    right when its interest is important enough and the law is appropriately tailored to
    meet the stated interest. See Am. Constitutional Law Found., Inc. v. Meyer, 
    120 F.3d 1092
    , 1102 (10th Cir. 1997).
          According to Mr. Doe, we should view Utah’s statute as a content-based
    restriction, subject to the strictest of scrutiny, because it has the effect of taking
    “away [Mr.] Doe’s right to choose whether to speak anonymously or under a
    pseudonym.” (Appellant’s Br. at 10.) We are not persuaded. “The principal
    inquiry in determining content neutrality is whether the government has adopted a
    regulation of speech because of disagreement with the message it conveys.” Am.
    Target Adver., Inc. v. Giani, 
    199 F.3d 1241
    , 1247 (10th Cir. 2000) (internal
    quotation marks and ellipsis omitted).
                As a general rule, laws that by their terms distinguish favored
          speech from disfavored speech on the basis of ideas or views
          expressed are content based. By contrast, laws that confer benefits
          or impose burdens on speech without reference to the ideas or views
          expressed are in most instances content neutral.
    Turner Broad. Sys., Inc. v. FCC, 
    512 U.S. 622
    , 643 (1994) (citation omitted).
    Simply because an otherwise content-neutral law has “an incidental effect on
    some speakers or messages” does not change its classification so long as it
    “serves purposes unrelated to the content of expression.” Golan v. Holder, 
    609 F.3d 1076
    , 1083 (10th Cir. 2010). On its face, section 77-27-21.5 is a content-
    neutral regulation. The law says nothing about the ideas or opinions that Mr. Doe
    may or may not express, anonymously or otherwise. Neither is it aimed at
    “supress[ing] the expression of unpopular views,” Am. Target, 199 F.3d at 1247,
    but rather it is directed towards aiding the police in solving crimes. We will
    therefore examine the State’s law as a content-neutral regulation.
          As a content-neutral regulation, Utah’s reporting law is subject to
    intermediate scrutiny, meaning that the law will be upheld if “the Act (1) serves a
    substantial government interest and (2) is ‘narrowly drawn’ to serve that interest
    ‘without unnecessarily interfering with First Amendment freedoms.’” Id. (quoting
    Vill. of Schaumburg v. Citizens for a Better Env’t, 
    444 U.S. 620
    , 637 (1980)).
    Both sides have agreed that Utah has a compelling interest in protecting the
    public from kidnapping and sex-related crimes, and we conclude that the
    reporting statute serves that interest. Thus, our consideration of this statute must
    focus on whether it unnecessarily interferes with Mr. Doe’s First Amendment
    freedoms. In reviewing state statutes challenged on First Amendment grounds,
    we will uphold a law if it is “readily susceptible to a narrowing construction that
    would make it constitutional.” ACLU v. Johnson, 
    194 F.3d 1149
    , 1159 (10th Cir.
    1999). Nevertheless, “[t]he key to application of this principle is that the statute
    must be readily susceptible to the limitation; we will not rewrite a state law to
    conform it to constitutional requirements.” Id.
          Mr. Doe argues that the statute is unconstitutional because the required
    disclosure of internet identifiers to state officials, as well as the possibility of
    disclosure of those identifiers to the public, chills his speech. 5 Turning first to
    the possibility of disclosure to the public, Mr. Doe focuses on the language of
    section 77-27-21.5(2)(c), which allows the state to “share information provided
    by an offender under this section that may not be made available to the public [on
    the sex-offender notification and registration website], but only: (i) for the
    purposes under this Subsection (2); or (ii) in accordance with Section 63G-2-
    206.” (emphasis added). According to Mr. Doe, the “or” in this statute means
             Mr. Doe also alleges that the law is improper because it is not the least
    restrictive means of addressing the state’s interest. However, under intermediate
    scrutiny “a regulation need not be the least speech-restrictive means of advancing
    the Government’s interests. Rather, the requirement of narrow tailoring is
    satisfied so long as the regulation promotes a substantial government interest that
    would be achieved less effectively absent the regulation.” Turner Broad., 512
    U.S. at 662 (internal quotation marks and ellipsis omitted).
    that the government may choose to share information with the public, free from
    the privacy safeguards contained in section 63G-2-206, so long as it is “to assist
    in investigating kidnapping and sex-related crimes.” § 77-27-21.5(2). Thus, Mr.
    Doe argues, the statute allows for the possibility of forced public disclosure of
    what would otherwise be anonymous speech.
          Despite Mr. Doe’s arguments, however, we conclude that Utah’s law
    provides sufficient safeguards so as to negate any potential fears of public
    disclosure. While Mr. Doe is correct that the language of subsections (c)(i) and
    (c)(ii) allows law enforcement to share information under either condition, he is
    not correct that information shared under subsection 21.5(c)(i) loses its privacy
    protection. Rather, as we discussed infra, under Utah’s GRAMA statute, Mr.
    Doe’s online identifiers are classified as private records and may not be disclosed
    except under the limited circumstances allowed by sections 63G-2-202, 63G-2-
    206, or 63G-2-303. See Utah Code Ann. § 63G-2-201(5)(a) (West Supp. 2010).
    Thus, even if information shared under section 77-27-21.5(2)(c)(i) is not subject
    to the protections of section 63G-2-206, it is nevertheless protected by and
    subject to the disclosure and privacy requirements of section 63G-2-201(5) and its
    related provisions, which include criminal penalties accompanying an
    unauthorized disclosure. See id. § 63G-2-801(1)(a).
          As for Mr. Doe’s arguments concerning the potential chilling effect of
    disclosure to state officials, we also hold that the statute includes sufficient
    restrictions so as not to unnecessarily chill Mr. Doe’s speech. Mr. Doe argues
    that the language of section 77-27-21.5(2) is broad enough to allow the state to
    monitor his communications at any time, which in turn may chill any anonymous
    criticisms of oppressive laws or state practices he might otherwise make via the
    internet. However, while this section, which allows the State to use an offender’s
    internet identifiers “to assist in investigating kidnapping and sex-related crimes,
    and in apprehending offenders,Ӥ 77-27-21.5(2), can be read broadly, we
    conclude that it is also readily susceptible to a narrowing construction.
    Accordingly, we read this language, as did the district court, as only allowing
    state actors to look beyond the anonymity surrounding a username in the course
    of an investigation after a new crime has been committed.
          Although this narrow interpretation may still result in the disclosure of Mr.
    Doe’s online identifiers to state officials, such identification will not
    unnecessarily interfere with his First Amendment freedom to speak anonymously
    because such a disclosure would occur, if at all, at some time period following
    Mr. Doe’s speech and not at the moment he wished to be heard. As the Fourth
    Circuit has explained, “Speech is chilled when an individual whose speech relies
    on anonymity is forced to reveal his identity as a pre-condition to expression. In
    other words, the First Amendment protects anonymity where it serves as a
    catalyst for speech.” Peterson v. Nat’l Telecomm. & Info. Admin., 
    478 F.3d 626
    632 (4th Cir. 2007) (citation omitted); see also Buckley v. Am. Constitutional Law
    525 U.S. 182
    , 199-200 (1999) (holding that a law requiring petition
    circulators to attach an affidavit with personal information to completed petitions
    was constitutional but invalidating a requirement that the circulators wear name
    badges at the time they gathered petition signatures because it “compelled . . .
    identification at the precise moment when the circulator’s interest in anonymity
    [was] greatest”).
          As a final First Amendment consideration, Mr. Doe alleges that Utah’s
    statute is overbroad. Specifically, Mr. Doe argues that the law is unconstitutional
    because it allows the state to collect the internet identifiers of individuals who are
    required to register under the reporting statute because of their involvement with
    a kidnapping offense. According to Mr. Doe, because these offenders’
    “underlying offenses are not sex-related crimes,” the statute is not narrowly
    drawn to serve the stated purpose of investigating sex-related crimes.
    (Appellant’s Reply Br. at 18.) However, the most recent enactment of the statute
    allows state officials to access online identifiers “to assist in investigating
    kidnapping and sex-related crimes,” § 77-27-21.5(2) (emphasis added), and we
    are not persuaded that individuals convicted of kidnapping offenses constitute
    “third parties whose speech is more likely to be protected by the First Amendment
    than the plaintiff’s speech,” D.L.S. v. Utah, 
    374 F.3d 971
    , 976 (10th Cir. 2004);
    see also Members of City Council of Los Angeles v. Taxpayers for Vincent, 
    466 U.S. 789
    , 802 (1984) (“[I]f the ordinance may be validly applied to [the plaintiff],
    it can validly be applied to most if not all . . . parties not before the Court.”).
    2. Mr. Doe’s claims under the Fourth Amendment and Ex Post Facto Clause
          We now consider Mr. Doe’s claim that he has a reasonable expectation of
    privacy in his online identifiers and that requiring him to report these identifiers
    to the state of Utah violates his Fourth Amendment right to be free from
    unreasonable searches and seizures. We touched on this issue in United States v.
    518 F.3d 1196
     (10th Cir. 2008). In Perrine, Pennsylvania police officers
    obtained, without a warrant, subscriber information—including the IP
    address—associated with the unique Yahoo! online identifier “stevedragonslayer”
    from Yahoo! (after an individual using that identifier showed pornographic videos
    of underage girls to another visitor in a Yahoo! chatroom). Id. at 1199. Using
    that IP address, the officers were then able to ascertain the defendant’s name and
    residential address from Cox Communications, the internet service provider that
    had issued the IP address. Id. at 1199-1200. Following his conviction, the
    defendant challenged the officer’s actions based, in part, on his argument that the
    police had violated his Fourth Amendment rights. We rejected this argument and
    held that the defendant had no reasonable expectation of privacy in “information
    that he voluntarily transmitted to the third-party internet providers, Cox and
    Yahoo!” Id. at 1204.
          On appeal, we see no reason why we are not bound by our earlier decision
    in Perrine. See In re Smith, 
    10 F.3d 723
    , 724 (10th Cir. 1993) (“We are bound by
    the precedent of prior panels absent en banc reconsideration or a superceding
    contrary decision by the Supreme Court.”). Although Mr. Doe now argues that
    there is a reasonable expectation of privacy in online identifiers because it is not
    always the case that an individual can be identified from his identifier, even if
    police are in possession of the associated IP address, he has raised these
    arguments for the first time on appeal. “Generally, we do not consider issues not
    presented to, considered and decided by the trial court, because an appellant’s
    new argument gives rise to a host of new issues, and Appellee had no opportunity
    to present evidence it may have thought relevant on these issues.” Utah Envtl.
    Cong. v. Russell, 
    518 F.3d 817
    , 828-29 (10th Cir. 2008) (internal quotation
    marks, brackets, and citation omitted). Such is the case here; Mr. Doe’s
    arguments raise a slew of new issues and evidentiary questions to which the State
    did not have a fair opportunity to respond. 6 However, even if Mr. Doe’s
    arguments were not forfeited, as the district court correctly observed, “there are
    no facts [in the record] from which the court can conclude that [Mr. Doe’s]
    identities are shielded from [his] Internet service provider.” (Appellant’s App. at
    293.) Accordingly, we find no error in the district court’s ruling on Mr. Doe’s
            Indeed, as illustrative of the new evidence needed to support Mr. Doe’s
    arguments, he has asked this court to take judicial notice of facts that were not
    presented in the district court but are, according to Mr. Doe, “capable of accurate
    and ready determination by resort to sources whose accuracy cannot reasonabl[y]
    be questioned.” (Appellant’s Br. at 37 n.70; see also id. at 38 n.71.)
    Fourth Amendment claim.
          Finally, we consider Mr. Doe’s contention that the district court erred by
    holding that Utah’s statute is not an impermissible ex post facto law. “[T]he
    threshold inquiry for assessing a violation of the Ex Post Facto Clause in the
    present case is whether Utah’s . . . program constitutes additional criminal
    punishment for the crimes previously committed by those subject to its
    provisions.” Femedeer v. Haun, 
    227 F.3d 1244
    , 1248 (10th Cir. 2000). Thus,
    “[i]f the notification measures are deemed civil rather than criminal in nature,
    they present no ex post facto violation.” Id. Even where, as here, neither party
    contests that the legislature intended to establish a civil remedy, we must still
    consider whether “the statutory scheme was so punitive either in purpose or effect
    as to transform what was clearly intended as a civil remedy into a criminal
    penalty.” Hudson v. United States, 
    522 U.S. 93
    , 99 (1997) (internal quotation
    marks, brackets, and citation omitted). However, “[o]nly the clearest proof will
    suffice to override legislative intent and transform what has been denominated a
    civil remedy into a criminal penalty.” Id. at 100 (internal quotation marks
          In Femedeer v. Haun, after examining the same Utah statute at issue in this
    case—absent the requirement that an offender disclose his or her internet
    identifiers—we stated that the evidence did “not come even close to the ‘clearest
    proof’ necessary to overcome the civil intent of Utah’s legislature.” 227 F.3d at
    1253. We then held that “Utah’s notification scheme imposes only a civil burden
    upon sex offenders and therefore does not run afoul of the Ex Post Facto Clause.”
    Id. Nevertheless, on appeal Mr. Doe argues that this new disclosure requirement
    provides “‘the clearest proof’ that the notification scheme is an ex post facto law
    that is punitive in purpose and effect.” (Appellant’s Br. at 45.) Looking closely
    at Mr. Doe’s argument on this issue, it seems clear that his contentions depend
    entirely upon his argument that the Utah statute would allow impermissible public
    disclosure of his internet identifiers, thereby destroying his right to anonymous
    speech. However, because we conclude that Utah’s registration statute does not
    violate the First Amendment, we hold that the effect of the new disclosure
    requirements is not substantial enough to alter our original analysis of the statute
    in Femedeer. Thus, we hold that the district court did not err in dismissing Mr.
    Doe’s claim under the Ex Post Facto Clause.
          Therefore, for these and the foregoing reasons, we AFFIRM the district
    court’s ruling vacating its earlier orders enjoining enforcement of the statute.

Document Info

DocketNumber: 09-4162

Citation Numbers: 628 F.3d 1217

Filed Date: 10/26/2010

Precedential Status: Precedential

Modified Date: 4/16/2017

Authorities (19)

Schaumburg v. Citizens for a Better Environment , 444 U.S. 620 ( 1980 )

Members of City Council of Los Angeles v. Taxpayers for ... , 466 U.S. 789 ( 1984 )

Turner Broadcasting System, Inc. v. FCC , 512 U.S. 622 ( 1994 )

McIntyre v. Ohio Elections Comm'n , 514 U.S. 334 ( 1995 )

Reno v. American Civil Liberties Union , 521 U.S. 844 ( 1997 )

Hudson v. United States , 522 U.S. 93 ( 1997 )

Buckley v. American Constitutional Law Foundation, Inc. , 525 U.S. 182 ( 1999 )

Golan v. Holder , 609 F.3d 1076 ( 2010 )

ACLU v. Johnson , 194 F.3d 1149 ( 1999 )

American Target v. Gianni , 199 F.3d 1241 ( 2000 )

Femedeer v. Haun , 227 F.3d 1244 ( 2000 )

D.L.S. v. State of Utah , 374 F.3d 971 ( 2004 )

Utah Environmental Congress v. Russell , 518 F.3d 817 ( 2008 )

United States v. Perrine , 518 F.3d 1196 ( 2008 )

david-j-lyons-commissioner-of-insurance-for-the-state-of-iowa-and , 994 F.2d 716 ( 1993 )

In Re David L. Smith , 10 F.3d 723 ( 1993 )

69 Fair empl.prac.cas. (Bna) 1446, 67 Empl. Prac. Dec. P 43,... , 74 F.3d 990 ( 1996 )

american-constitutional-law-foundation-inc-david-aitken-jon-baraga-craig , 120 F.3d 1092 ( 1997 )

robert-peterson-v-national-telecommunications-and-information , 478 F.3d 626 ( 2007 )

View All Authorities »