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Sora Order 121017

Sora Order 121017

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Published by David Post
Judge Kopf's opinion striking down the Nebraska sex offender registry statute on 1st Amendment grounds.
Judge Kopf's opinion striking down the Nebraska sex offender registry statute on 1st Amendment grounds.

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Published by: David Post on Oct 18, 2012
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01/23/2013

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THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEBRASKAJOHN DOE, et al.,))Plaintiffs,)8:09CV456vs.))STATE OF NEBRASKA, et al.,))
FINDINGS OF FACT,
Defendants.)
CONCLUSIONS OF LAW
, ______________________________)
AND MEMORANDUM
)
AND ORDER 
JOHN DOE,))4:10CV3266Plaintiff,))vs.)) NEBRASKA STATE PATROL, )et al.,))Defendants.) ______________________________))JOHN DOE,))4:10CV3005Plaintiff,))vs.))STATE OF NEBRASKA, et al.,))Defendants.) ______________________________)
8:09-cv-00456-RGK-CRZ Doc # 525 Filed: 10/17/12 Page 1 of 73 - Page ID # 6508
 
Filing
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92, Case No. 8:09CV456, Memorandum and Order on Motion for Preliminary Injunction, at CM/ECF p. 18 (citing Oliver Wendell Holmes, Jr., asquoted in Ronald K.L. Collins,
 As Justice Holmes said . . . Oliver Wendell Holmes Jr.on free speech & related matters: selected quotations
, First Amendment Center (May21, 2008) (letter to Harold Laski, May 13, 1919) athttp://www.firstamendmentcenter.org/(last accessed August 29, 2012)).2Earlier 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. By
1
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, I upheld many portions of Nebraska’s new sex offender registrationlaws even though it was my firm personal view that those laws were both wrong-headed and counterproductive.However, I had serious constitutional concerns about three sections of  Nebraska’s new law. After careful study, I granted summary judgment regarding oneclaim and decided that a trial was necessary to resolve my other concerns. The trialhas now been concluded, and I have decided that the remaining portions of Nebraska’ssex offender registry laws are unconstitutional.In short, I can only help Nebraskans get to the figurative hell that Holmes spokeof if they follow a constitutional path. For three sections of Nebraska’s new sexoffender registry law, Nebraska has violently swerved from that path. I next explainwhy that is so.
8:09-cv-00456-RGK-CRZ Doc # 525 Filed: 10/17/12 Page 2 of 73 - Page ID # 6509
 
The numbered Doe plaintiffs are offenders required to register under the
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 Nebraska Sex Offender Registration Act and the lettered Does are family members o people having “some connection with a Doe.” (Transcript of Trial36:2-8(“Tr.”).)The transcript of trial may be found at Filings 516-520.3
I. STATUTES AT ISSUE & PRIOR OPINION ON SUMMARYJUDGMENT MOTIONS
 A.Statutes at Issue
Plaintiffs challenge the constitutionality—both facially and as applied—of 
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 parts of three statutes: Neb. Rev. Stat. §§29-4006(1)(k) and (s), 29-4006(2), and28- 322.05(West, Operative Jan. 1, 2010). Generally, sections29-4006(1)(k) and (s)require disclosure by persons required to register under the Nebraska Sex Offender Registration Act of remote communication device identifiers, addresses, domainnames, and Internet and blog sites used; section29-4006(2)requires registrants toconsent to the search and installation of monitoring hardware and software; andsection28-322.05criminalizes 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, thefollowing information:. . . .
8:09-cv-00456-RGK-CRZ Doc # 525 Filed: 10/17/12 Page 3 of 73 - Page ID # 6510

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