Editor’s Note: Chief Judge of the United States District Court Greg Stivers modified the injunction to state that the law is not enforceable against the anonymous plaintiff at this time. County Attorney John Burlew said he was informed of Stivers’s new opinion early Friday morning.
Burlew also indicated that the law is enforceable at this time against anyone other than the plaintiff. Stivers also denied all class certifications, leaving Burlew as the only named defendant.
Burlew also said that he and his defense, Kentucky Attorney General Russell Coleman’s office, still plan to appeal Stiver’s injunction to the U.S. Sixth Circuit Court of Appeals.
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A registered sex offender in Daviess County who has committed a criminal offense against a minor has filed an anonymous suit challenging the constitutionality of Senate Bill 249. Such offenders are required to display their full legal name across all of their social media accounts. In his capacity as Daviess County Attorney, John Burlew will serve as the defendant on behalf of all county attorneys statewide.
The Kentucky General Assembly passed Senate Bill 249, which Governor Andy Beshear signed into law during the 2024 legislative session, adding to the state’s sex offender registration statutes. The law reads that those who violate the law would be found guilty of a Class A misdemeanor for the first offense and a Class D Felony for subsequent offenses. It went into effect on July 15.
On April 29, Washington, D.C.-based attorney Guy Hamilton-Smith filed the lawsuit on behalf of the anonymous plaintiff, referred to as “John Doe.” He argued that the statute was unconstitutional and “overbroad” and violated the plaintiff’s First Amendment rights to free speech.
Burlew didn’t elaborate on the specifics but said there are circumstances in which a person can file under a pseudonym, but the court has to approve it. They did approve it in this instance, bringing Burlew to the forefront of the case because he’s the one who would prosecute Doe should he ever violate SB 249.
“We don’t know who this individual is, and we likely won’t throughout the entire suit,” Burlew said. “I’m not aware of another Daviess County attorney ever facing an issue like this, especially at the federal level and about a constitutional issue.”
Burlew was served on June 7 and contacted the Prosecutor Advisory Council in Frankfort for suggestions before determining it was best to bring in Kentucky Attorney General Russell Coleman’s office for representation.
The plaintiff filed a motion for a preliminary injunction, which would prohibit the Commonwealth’s 120 county attorneys from enforcing SB 249. Part of the injunction requests that all commonwealth county attorneys be named defendants.
Burlew’s counsel filed a response on June 28 to that motion, but Chief Judge of the United States District Court Greg Stivers ruled in favor of the plaintiff. They also filed a cross-motion for summary judgment to rule on the merits of the case now and in favor of the defense; Stivers also ruled against that motion.
Burlew said this doesn’t mean the case is over.
“At this point, we’re in a holding pattern,” he said.
Burlew said it’s their intention to appeal the judge’s ruling on the preliminary injunction to the Federal Sixth Circuit Court of Appeals.
“I do think this law is valid and constitutional. Furthermore, it’s a common sense law to me,” he said. “People convicted of felonies give up their rights they otherwise would have, like the Second Amendment. The plaintiff is arguing for freedom of speech. Some of his rights might be taken away, but it’s to protect children, and the government has a strong interest in that.”
Stivers issued the memorandum opinion and order on July 12. It notes that the plaintiff is acting on behalf of sex offenders in a similar situation.
“It’s difficult to understand why a sex offender would want to use a fake name on social media other than to target potential victims of sex crimes,” Burlew said. “I’m maintaining regular contact with county attorneys across the state, and I’ve told them I am honored to represent them as a whole, especially on an issue of this importance.”
SB 249, co-sponsored by local state Senator Gary Boswell, received unanimous bipartisan support. It passed the Senate 38-0 and House 96-0 before the governor signed it into law.
There is a separate law that prevents sex offenders from communicating with minors, but Burlew expressed difficulties with enforcing it.
“With a fake name, how do we enforce it?” he said. “How do parents know? They could be using a fake picture and a fake name. That’s the issue. It’s too difficult to enforce the existing law. With fake names and pictures, we’re none the wiser.”
He said he’s unsure of a timeline for the case but added that the attorney general’s office is taking it very seriously.
