Driven by “rage” and “revulsion” of registered sex offenders, the 2009 Nebraska Legislature enacted LB 97, which allowed law enforcement to monitor and restrict Internet usage by those offenders. In an exhaustive order following a trial, U.S. District Judge Richard D. Kopf held that sections of the legislation “gut the First and Fourth Amendment and the Due Process Clause.”

            The principal drafter and editor-in-chief of LB 97 was the Nebraska Attorney General’s Office, who hand-picked Sen. Scott Lautenbaugh to introduce the legislation. The court, in a previous order, upheld many portions of that law, but had constitutional concerns on three sections of it.

            At issue were: Neb. Rev. Stat. § 29-4006(l)(k) and (s), which requires disclosure by registered sex offenders of remote communication device identifiers, addresses, domain names, and Internet and blog sites use; § 29-4006(2), which requires registrants to consent to the search and installation of monitoring hardware and software; and §28-322.05, which criminalizes some registrants use of social networking websites, instant messaging, and chat room services accessible by minors.

            In a prior order on the parties’ summary judgment motions, the court ordered a trial on the First Amendment challenge to §§ 29-4006(l)(k) and (s) and 29-4006(2) and the Due Process clause challenge to § 28-322.05. Trial was also ordered on the Ex Post Facto challenge to each of those sections. The court, however, found §29-4006(2) was unconstitutional as to the plaintiffs who were previously convicted of sex crimes but who were not on probation, parole, or court-monitored supervision when LB 97 become effective on January 1, 2010.

            The court’s analysis began with § 28-322.05. The ban on using social networking websites, instant messaging and chat rooms upon pain of jail or prison sentence was not “contingent upon the past use of the banned utilities to prey upon minors.” Factors such as the age of the conviction, the cleanness of the record since the conviction, the absence of court supervision, or the legitimate use of those utilities does not matter. Only the fact of conviction is the trigger for the law.

            As such, the court held, “the statute is not narrowly tailored to target those offenders who pose factually based risk to children through the use of the banned sites or services.” Because the statute substantially burdens more speech than is necessary to protect the government’s legitimate interest in protecting minors online from sex offenses, it violates the First Amendment because it precludes offenders “from using an enormous part of the Internet to engage in expressive activity.” The court suggested Nebraska “use a scalpel rather than a blunderbuss.”

            It also found that section was unconstitutionally expansive and vague. The breadth of the statute was chilling offenders and their associates from using portions of the Internet that the State said was open to them. The statute bans use of communication that is “virtually instantaneous.” The state said “text message” did not fit this definition, but “instant messaging” did. The court found the two to be, at times, interchangeable. Even the State’s expert could not state which would be criminal to use, and the court rejected the proffered limiting constructions because they were not apparent form the statute.

            Next, the court ruled to the challenge to § 29-4006(l)(k) and (s). That section “clearly chills offenders from engaging in expressive activity that is perfectly proper,” it found. It forces an offender to choose between his First Amendment and Fourth Amendment rights. It “requires offenders to tell the government if the offender has his own Internet site or blog and when and where the offender has expressed himself on that site or blog or any other blog.” It puts a “stake through the heart of the First Amendment anonymity” and subjects the offender to searches by “overzealous prosecutors and cops” who may dislike or disagree with the offenders’ speech.

            After finding § 28-322.05 was unconstitutionally vague for failing to provide a person of ordinary intelligence of what it prohibited, the court turned to the Ex Post Facto challenges. It found the three provisions under review were intended by the Nebraska Legislature to punish sex offenders.

            Sen. Lautenbaugh admitted when he introduced the Legislation that he lacked objectivity, and he was driven by “rage” at, and “revulsion” for, the sex offenders who were the targets of these “extraordinary measures.” The court found the Legislature was not merely complying with the civil regulatory scheme of the federal Sex Offender Registration and Notification Act, it included “broad, additional, and oppressive criminal provisions.”

            These penalties are long term, life in some cases. The retroactive application of these statues render sex offenders “second class citizens,” the court wrote. “They are silenced. They are rendered insecure in their homes. They are denied the rudiments of fair notice.” This punishment, the court held, is unconstitutional.

            In its final point, the court found the challenge of § 29-4006(2) was not ripe for as an applied Fourth Amendment challenge for persons on probation, parole, or court appointed monitoring on or after January 1, 2010. The court entered an order to reflect its findings and ordered the parties to submit pleading for the award of attorney fees and costs for the plaintiff.

            The court commended attorneys for both sides on their professionalism and civility. He commended the plaintiff’s attorneys, Stuart Dornan and Thomas Monaghan, to represent persons many view as lepers. “By taking this case, both men were sure to displease and disappoint their former law enforcement friends and colleagues,” Judge Kopf wrote. “The decision to represent these unpopular plaintiffs took courage and is an example of the highest traditions of the bar of this court.” See: Doe v. Nebraska, USDC, D. Nebraska, Case No. 8:09-cv-456.

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