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Illinois High Court Upholds Sex Offender Requirements Struck Down in Other States

by Lonnie Burton

On October 20, 2016, the Illinios Supreme Court declared constitutional a law that requires convicted sex offenders to report their email addresses, Internet identities and related online data to law enforcement officials. The unanimous decision found a provision of the Sex Offender Registration Act, 730 ILCS 152/101 et seq. (1996), survived a First Amendment challenge because the government’s interest in “protecting the public” outweighed the offenders’ forced disclosure of their personal information.

The case involved Mark Minnis, adjudicated as a juvenile sex offender, who failed to inform law enforcement authorities about updates to his Facebook page. Minnis was indicted for failure to register under Section 3(a) of the Act when he did not list his Facebook account when he registered in August 2014, and police later found he had not reported changing his Facebook cover photo.

Minnis challenged the law as overbroad and vague in May 2015, and a state court judge agreed it was overbroad under the First Amendment, both on its face and as applied to Minnis.

The Act, which was amended in 2007, requires sex offenders to report and update “all email addresses, instant messaging identities [and] chat room identities,” as well as all URLs, blogs and Internet sites used or maintained by the offender.

On appeal, the Illinois Supreme Court first found that while the Act did not prevent or prohibit any type of speech or force sex offenders to reveal information prior to speaking, it may have a chilling effect on speech and thus was subject to a First Amendment analysis.

The state had argued that the law largely required sex offenders to report Internet activity that occurred prior to the registration period, therefore it was mere speculation to say their right to free speech was impacted.

Minnis contended that even if the law did not ban any specific type of speech, if the registration requirements drove offenders away from the Internet, effectively silencing them, the outcome was the same.

The high court disagreed. “Although the public availability of the website information may have a lasting and painful impact on sex offenders, these consequences flow not from the statutory registration and notification scheme, but from the fact of conviction, which is already a matter of public record,” the Supreme Court wrote.

Further, the justices found that any humiliation or hostility suffered by sex offenders as a result of making their personal information publicly available on the state’s registry was a “side effect” rather than the purpose of the Act.

The decision was in contrast to rulings by at least three federal courts that struck down similar statutes in other states. Cases from Nebraska, Georgia and California held that publicly available websites, blogs and forums did not “reasonably” pose threats to the public just because they were accessed by convicted sex offenders. See: Doe v. Nebraska, 898 F.Supp.2d 1086 (D. Neb. 2012); White v. Baker, 696 F.Supp.2d 1289 (N.D. Ga. 2010); and Doe v. Harris, 772 F.3d 563 (9th Cir. 2014).

Minnis’ attorney, David V. Kimmel, noted that the Illinois Supreme Court did not rule on his as-applied challenge because the trial court took no evidence and made no findings of fact. He said the Court only upheld the constitutionality of the law on its face.

“The way they phrased that to me seems to leave the door open to further development of that issue on remand,” Kimmel said. “That’s helpful.”

While the Illinois State Attorney General’s Office praised the ruling as advancing “the goal of preventing sex offenses against children,” free speech advocates had a different take.

“The statute covers virtually any type of online speech, the vast majority of which has no relationship with the interest of preventing recidivism on the Internet,” said Rebecca Glenberg, a staff attorney with the ACLU of Illinois, which had filed a friend-of-the-court brief in the case. See: State of Illinois v. Minnis, 2016 IL 119563, 67 N.E.3d 272 (Ill. 2016), rehearing denied. 


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Related legal case

State of Illinois v. Minnis