Delgado v. Swearingen

375 F. Supp. 3d 1251
CourtDistrict Court, N.D. Florida
DecidedSeptember 21, 2018
DocketCase No. 4:16cv501-RH/CAS
StatusPublished
Cited by1 cases

This text of 375 F. Supp. 3d 1251 (Delgado v. Swearingen) is published on Counsel Stack Legal Research, covering District Court, N.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delgado v. Swearingen, 375 F. Supp. 3d 1251 (N.D. Fla. 2018).

Opinion

Robert L. Hinkle, United States District Judge

This case presents a First Amendment challenge to a Florida statute requiring *1255convicted sex offenders to notify the Florida Department of Law Enforcement of their internet identifiers. This order upholds the statute in substantial part but protects the right to anonymous speech by prohibiting FDLE from publicly disclosing information of a kind that FDLE has compiled but never publicly disclosed and that no member of the public has ever requested.

I. Background

Florida maintains a sex offender registry. An individual who has been convicted of a qualifying sex offense must register with FDLE and must provide specified information. The information includes, among other things, the registrant's name, physical address, email addresses, and, subject to exceptions, the registrant's internet identifiers-names the registrant uses to communicate directly with other internet users. Failure to comply with these requirements is a felony.

FDLE maintains a publicly available website with each registrant's name and physical address. A user of the website thus may determine whether an individual is a registered sex offender and, if so, the registrant's physical address. The publicly available website lists email addresses and internet identifiers that have been disclosed by registrants, but the website does not match them up-the website does not indicate which registrant is associated with which email address or internet identifier. FDLE makes that information-the identity of the registrant associated with any given email address or internet identifier-available to law enforcement officers for use in investigating crimes. FDLE policy allows disclosure of that information to members of the public only on written request, not over the internet. No member of the public has ever made a written request for that information, so FDLE has never publicly disclosed it. See Def.'s Mot. Summ. J., ECF No. 77, at 6 ; Coffee decl., ECF No. 77-1, at ¶ 36 ; Rough Tr. of Summ. J. Hr'g at 50, 52.

The plaintiffs are registered sex offenders. They filed this action against the Commissioner of FDLE in his official capacity. The plaintiffs seek declaratory and injunctive relief.

The plaintiffs assert the requirement to notify FDLE of their internet identifiers violates the First Amendment because the requirement burdens their protected speech, deters them from engaging in protected speech, and deprives them of the right to anonymous speech. The plaintiffs also assert the statute's description of which internet identifiers must be registered is unconstitutionally vague.

FDLE asserts the plaintiffs lack standing and are wrong on the merits.

The parties have filed cross-motions for summary judgment. The motions have been fully briefed and orally argued.

II. The Statute

The Florida sex-offender registry statute imposes requirements on individuals with qualifying sex-offense convictions who reside in Florida or visit for as little as three days in a calendar year. One requirement is to "register all electronic mail addresses and Internet identifiers" within 48 hours after "using" them. Fla. Stat. § 943.0435(4)(e) 1.

An internet identifier is "any designation, moniker, screen name, username, or other name used for self-identification to send or receive social Internet communication." Id. § 775.21(2)(j) (incorporated into § 943.0435 by § 943.0435(1)(e) ). For convenience, this order sometimes uses the single word "username" to mean the same thing as "designation, moniker, screen name, username, or other name used for *1256self-identification." The statute's use of the longer list is apparently intended to be comprehensive, but "username," standing alone, would probably achieve the same result.

A social internet communication is "any communication through a commercial social networking website ... or application software," with three exceptions: (1) "[c]ommunication for which the primary purpose is the facilitation of commercial transactions involving goods or services"; (2) "[c]ommunication on an Internet website [whose] primary purpose ... is the dissemination of news"; and (3) "[c]ommunication with a governmental entity." Id. § 775.21(2)(m) (incorporated into § 943.0435 by § 943.0435(1)(e) ).

A commercial social networking website is "a commercially operated Internet website that allows users to create web pages or profiles that provide information about themselves and are available publicly or to other users and that offers a mechanism for communication with other users, such as a forum, chat room, electronic mail, or instant messenger." Id. § 943.0437(1) (incorporated into § 775.21 by § 775.21(2)(m), which is in turn incorporated into § 943.0435 by § 943.0435(1)(e) ).

Application software is "any computer program designed to run on a mobile device such as a smartphone or tablet computer, that allows users to create web pages or profiles that provide information about themselves and are available publicly or to other users, and that offers a mechanism for communication with other users through a forum, a chatroom, electronic mail, or an instant messenger." Id. § 775.21(2)(m) (incorporated into § 943.0435 by § 943.0435(1)(e) ).

At bottom, a good summary is this. The statute requires registration of a sex offender's email addresses and any username a sex offender uses in connection with a communication over the internet directly with another user, with the following exceptions. A username need not be registered based only on a communication whose primary purpose is to facilitate a commercial transaction involving goods or services, or a communication over a website whose primary purpose is the dissemination of news, or a communication with a governmental entity. And a username need not be registered based only on its use on a website or application that does not allow users to create web pages or profiles as described in the statute.

For the most part, the summary set out in the preceding paragraph derives from the plain language of the statute. But the limitation to communications directly with another user is less clear. That limitation is mandated by three considerations.

First, while not explicit, the statutory language strongly supports the limitation. The statute defines an internet identifier as a "designation, moniker, screen name, username, or other name used for self-identification to send or receive social Internet communication. " Id.

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Cite This Page — Counsel Stack

Bluebook (online)
375 F. Supp. 3d 1251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delgado-v-swearingen-flnd-2018.