Doe v. Nebraska

• Decision Date: 17 October 2012
• Docket Number: Nos. 8:09CV456,4:10CV3266,4:10CV3005.,s. 8:09CV456
• Citation: 898 F.Supp.2d 1086
• Parties: John DOE, et al., Plaintiffs, v. State of NEBRASKA, et al., Defendants. John Doe, Plaintiff, v. Nebraska State Patrol, et al., Defendants. John Doe, Plaintiff, v. State of Nebraska, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

898 F.Supp.2d 1086

John DOE, et al., Plaintiffs,
v.
State of NEBRASKA, et al., Defendants.
John Doe, Plaintiff,
v.
Nebraska State Patrol, et al., Defendants.
John Doe, Plaintiff,
v.
State of Nebraska, et al., Defendants.

Nos. 8:09CV456, 4:10CV3266, 4:10CV3005.

United States District Court,
D. Nebraska.

Oct. 17, 2012.

Held Unconstitutional

West's Neb.Rev.St. §§ 28–322.05, 29–4006(1)(k, s), (2)

[898 F.Supp.2d 1092]

Jason E. Troia, Joshua W. Weir, Rodney C. Dahlquist, Jr., Stuart J. Dornan, Thomas J. Monaghan, Dornan, Lustgarten Law Firm, Omaha, NE, for Plaintiffs.

Corey M. O'Brien, David D. Cookson, Katherine J. Spohn, Kevin L. Griess, Ryan S. Post, Attorney General's Office, Lincoln, NE, Kimberly M. Watson, Dakota County Office, Dakota City, NE, Timothy K. Dolan Douglas County Attorney's Office, Omaha, NE, Todd Wilson, P.C., Elwood, NE, Michael E. Thew, Lancaster County Attorney's Office, Lincoln, NE, Michael A. Smith Sarpy County Attorney's Office, Papillion, NE, Tonya L. Peters, City of Lincoln, Lincoln, NE, for Defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.

Earlier I paraphrased Justice Oliver Wendell Holmes and observed that if the people of Nebraska wanted to go to hell, it was my job to help them get there.¹ By that, I meant that it is not my prerogative to second-guess Nebraska's policy judgments so long as those judgments are within constitutional parameters. Accordingly,

[898 F.Supp.2d 1093]

I upheld many portions of Nebraska's new sex offender registration laws even though it was my firm personal view that those laws were both wrongheaded and counterproductive.

However, I had serious constitutional concerns about three sections of Nebraska's new law. After careful study, I granted summary judgment regarding one claim and decided that a trial was necessary to resolve my other concerns. The trial has now been concluded, and I have decided that the remaining portions of Nebraska's sex offender registry laws are unconstitutional.

In short, I can only help Nebraskans get to the figurative hell that Holmes spoke of if they follow a constitutional path. For three sections of Nebraska's new sex offender registry law, Nebraska has violently swerved from that path. I next explain why that is so.

I. STATUTES AT ISSUE & PRIOR OPINION ON SUMMARY JUDGMENT MOTIONS A. Statutes at Issue

Plaintiffs ² challenge the constitutionality—both facially and as applied—of parts of three statutes: Neb.Rev.Stat. §§ 29–4006(1)(k) and (s), 29–4006(2), and 28–322.05 (West, Operative Jan. 1, 2010). Generally, sections 29–4006(1)(k) and (s) require disclosure by persons required to register under the Nebraska Sex Offender Registration Act of remote communication device identifiers, addresses, domain names, and Internet and blog sites used; section 29–4006(2) requires registrants to consent to the search and installation of monitoring hardware and software; and section 28–322.05 criminalizes some registrants' use of social networking web sites, instant messaging, and chat room services accessible by minors.

In relevant part, these statutes provide:

Neb.Rev.Stat. § 29–4006(1)(k) and (s):

(1) Registration information required by the Sex Offender Registration Act shall be entered into a data base in a format approved by the sex offender registration and community notification division of the Nebraska State Patrol and shall include, but not be limited to, the following information:

....

(k) The person's remote communication device identifiers and addresses, including, but not limited to, all global unique identifiers, serial numbers, Internet protocol addresses, telephone numbers, and account numbers specific to the device; ³

....

(s) All email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the person uses or plans to use, all domain names registered by the registrant, and all blogs and Internet sites maintained by the person or to which the person has uploaded any content or posted any messages or information.⁴

Neb.Rev.Stat. § 29–4006(2):

(2) When the person provides any information under subdivision (1)(k) or (s) of

[898 F.Supp.2d 1094]

this section, the registrant shall sign a consent form, provided by the law enforcement agency receiving this information, authorizing the:

(a) Search of all the computers or electronic communication devices possessed by the person; and

(b) Installation of hardware or software to monitor the person's Internet usage on all the computers or electronic communication devices possessed by the person.

Neb.Rev.Stat. § 28–322.05:

(1) Any person required to register under the Sex Offender Registration Act who is required to register because of a conviction for one or more of the following offenses, including any substantially equivalent offense committed in another state, territory, commonwealth, or other jurisdiction of the United States, and who knowingly and intentionally uses a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use its social networking web site, instant messaging, or chat room service, commits the offense of unlawful use of the Internet by a prohibited sex offender:

(a) Kidnapping of a minor pursuant to section 28–313;

(b) Sexual assault of a child in the first degree pursuant to section 28–319.01;

(c) Sexual assault of a child in the second or third degree pursuant to section 28–320.01;

(d) Incest of a minor pursuant to section 28–703;

(e) Pandering of a minor pursuant to section 28–802;

(f) Visual depiction of sexually explicit conduct of a child pursuant to section 28–1463.03 or 28–1463.05;

(g) Possessing any visual depiction of sexually explicit conduct pursuant to section 28–813.01;

(h) Criminal child enticement pursuant to section 28–311;

(i) Child enticement by means of an electronic communication device pursuant to section 28–320.02;

(j) Enticement by electronic communication device pursuant to section 28–833; or

(k) An attempt or conspiracy to commit an offense listed in subdivisions (1)(a) through (1)(j) of this section.

(2) Unlawful use of the Internet by a prohibited sex offender is a Class I misdemeanor for a first offense. Any second or subsequent conviction under this section is a Class IIIA felony.

Relevant definitions are found in Neb.Rev.Stat. § 29–4001.01: ⁵

(3) Chat room means a web site or server space on the Internet or communication network primarily designated for the virtually instantaneous exchange of text or voice transmissions or computer file attachments amongst two or more computers or electronic communication device users;

....

(10) Instant messaging means a direct, dedicated, and private communication service, accessed with a computer or electronic communication device, that enables a user of the service to send and receive virtually instantaneous text transmissions or computer file attachments

[898 F.Supp.2d 1095]

to other selected users of the service through the Internet or a computer communications network;

....

(13) Social networking web site means a web page or collection of web sites contained on the Internet (a) that enables users or subscribers to create, display, and maintain a profile or Internet domain containing biographical data, personal information, photos, or other types of media, (b) that can be searched, viewed, or accessed by other users or visitors to the web site, with or without the creator's permission, consent, invitation, or authorization, and (c) that may permit some form of communication, such as direct comment on the profile page, instant messaging, or email, between the creator of the profile and users who have viewed or accessed the creator's profile....

B. Prior Opinion

In my prior memorandum and order addressing the parties' motions for summary judgment (Filing 354), I determined that the plaintiffs' facial and as-applied challenges to the above-cited statutes raised four constitutional concerns that necessitated a trial—namely, issues arising under the First Amendment, the Due Process Clause, the Ex Post Facto Clause, and the Fourth Amendment.

With regard to the First Amendment, I decided that trial was necessary as to sections 29–4006(1)(k) and (s) and 28–322.05 to determine whether the requirement that sex-offender registrants disclose information about Internet use violates their right to freedom of speech guaranteed by the First Amendment and the Nebraska equivalent and whether the partial ban on Internet use by certain offenders, upon pain of criminal conviction, violates those speech rights as well. I noted that the parties had not presented an undisputed record of material facts that “explains how these two statutes would actually work in practice and without such a record I cannot determine the implications of this statute on Plaintiffs' First Amendment rights.” (Filing 354 at CM/ECF p. 35.)

Similarly, I reserved for trial the issue of whether section 28–322.05 is void for vagueness under the Due Process Clause and Nebraska's equivalent provision because the parties failed to present a sufficient factual record to show how this statute works. Thus, I could not determine whether the statute provides fair notice of what is prohibited and whether a limiting construction could be applied to save the statute. (Filing 354 at CM/ECF pp. 32–33.)

As to Plaintiffs' claim under the Ex Post Facto Clause, I decided that a trial was necessary to determine whether sections 29–4006(1)(k) and (s), 29–4006(2), and 28–322.05 violate that clause of the United States Constitution and the Nebraska equivalent for offenders (1) who had served their time and were no longer under criminal justice supervision as of the effective date of the laws, January 1, 2010, and (2) who had been sentenced prior to January 1, 2010, but remained under criminal justice supervision on or after that date. (Filing 354 at...