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Ninth Circuit Affirms Preliminary Injunction in Challenge to California’s CASE Act

Ninth Circuit Affirms Preliminary Injunction in Challenge to California’s CASE Act

On November 7, 2012, a federal judge granted a temporary restraining order (TRO) enjoining the implementation of parts of the Californians Against Sexual Exploitation Act (“CASE Act”), passed by voters as Proposition 35, which requires registered sex offenders (RSOs) to provide identifying information about their online accounts to the government.

In seeking the TRO on behalf of all RSOs, the ACLU of Northern California and Electronic Frontier Foundation argued that the CASE Act’s provisions requiring RSOs to provide the police with a list of their Internet providers and screen names violated their rights to free speech and association under the First Amendment, as well as their due process and equal protection rights.

U.S. District Court Judge Thelton Henderson concluded there were “serious questions” about whether the challenged sections of the CASE Act violated RSOs’ First Amendment and other constitutional rights. He also found that, insofar as the state indicated it would be unable to enforce the new law until March 2013, there would be minimal harm in issuing a TRO.

Noting that RSOs would suffer the potential loss of their ability to speak anonymously on the Internet, that such a loss of First Amendment freedoms “unquestionably constitutes irreparable injury” and that there is a significant public interest in upholding free speech principles, as well as in preventing violation of a party’s constitutional rights, Henderson held the standards for issuing a TRO had been satisfied.

In January 2013, the district court also granted the plaintiffs’ motion for a preliminary injunction, enjoining the state’s enforcement of the CASE Act. “The Court does not lightly take the step of enjoining a state statute, even on a preliminary basis. However, just as the Court is mindful that a strong majority of California voters approved Proposition 35 and that the government has a legitimate interest in protecting individuals from online sex offenses and human trafficking, it is equally mindful that ‘[a]nonymity is a shield from the tyranny of the majority,’ and that Plaintiffs enjoy no lesser right to anonymous speech simply because they are ‘unpopular.’”

The state appealed the preliminary injunction order to the Ninth Circuit on February 11, 2013, and the case was stayed pending the outcome of the appeal. See: Doe v. Harris, U.S.D.C. (N.D. Cal.), Case No. 3:12-cv-05713-TEH.

On November 18, 2014, the Ninth Circuit affirmed the district court’s order granting the preliminary injunction, finding it had not abused its discretion. Specifically, the appellate court determined the lower court had properly considered the standards for issuing the injunction and concluded, “as did the district court, that Appellees are likely to succeed on the merits of their First Amendment challenge.” See: Doe v. Harris, 2014 U.S. App. LEXIS 21808 (9th Cir. Nov. 18, 2014).

 

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