On August 7, 2015, the ACLU-NH filed a motion to dismiss criminal charges brought by the State under RSA 651-B:4-a – a law passed in 2009 that restricts the legal and constitutionally-protected speech of all registered sex offenders in New Hampshire. In its Motion, the ACLU-NH asked the Superior Court to declare RSA 651-B:4-a unconstitutional in violation of the First Amendment and Part I, Article 22 of the New Hampshire Constitution. Similar laws in California, Nebraska, Georgia, and Michigan have been struck down.
RSA 651-B:4-a requires anyone who is a registered sex offender – even people with decades-old, low-level offenses like misdemeanor lewdness and people whose offenses were not related to the Internet – to turn over a list of all their online identifiers to law enforcement. While the law is written very unclearly, this likely includes email addresses, usernames and other identifiers used for online political discussion groups, book and restaurant review sites, forums about medical conditions, and newspaper or blog comments – all innocent online speech that has nothing to do with criminality. Under the law, more than 2,700 Granite staters must immediately provide this information to law enforcement, and must report any new accounts before they are even used, even if the new screen name is their own real name. Violations can result in years in prison.
RSA 651-B:4-a’s online speech regulations are overly broad and violate the First Amendment and Article 22, both because they prohibit anonymous speech and because the reporting requirements burden all sorts of online speech.
“The ability to speak freely and even anonymously is crucial for free speech to remain free for all of us,” said Gilles Bissonnette, Legal Director at the ACLU-NH. “Preventing predatory behavior on the Internet is a worthy goal, but this law won’t get us there. And there’s no evidence that the law has prevented a single crime in the last 6 years it has been in effect.”
“Requiring people to give up their right to speak freely and anonymously about civic matters is unconstitutional, and restrictions like this damage robust discussion and debate on important and controversial topics,” said Bissonnette. “When the government starts gathering online profiles for one class of people, we all need to worry about the precedent it sets.”
Even before this law was passed in 2009, New Hampshire’s sex offender statute was already very broad. And the New Hampshire Supreme Court in early 2015 concluded that the state’s retroactive, lifetime registration requirements were “punitive in effect” and therefore unconstitutional as applied to one petitioner. New Hampshire has the tools to determine who presents a risk to public safety and who doesn’t – but this statute applies to all registrants, no matter what the risk.
In a May 18, 2016 decision, the Rockingham County Superior Court struck down a portion of the statute and narrowed other provisions to comply with the First Amendment.
Cooperating Attorneys: Professor John Greabe, and Mark Sisti of Sisti Law Offices