Kentucky Attorney General Russell Coleman has filed a brief before the U.S. Court of Appeals for the Sixth Circuit, defending the constitutionality of Senate Bill 249, a law that requires registered child sex offenders to use their full names on social media.
The law was passed unanimously by both chambers of the Kentucky General Assembly and signed by Gov. Andy Beshear earlier this year and has faced a legal challenge from an anonymous sex offender in Daviess County.
In a press release, Coleman expressed confidence in the law.
“This statute doesn’t ban any speech, but it simply empowers kids and their parents to know who may be lurking in the shadows of the internet. The law clearly passes constitutional muster, and we hope the Sixth Circuit will quickly allow it to take full effect.”
The case stems from a lawsuit filed by an anonymous registered child sex offender, listed in court documents as “John Doe,” against John Burlew in his official capacity as Daviess County Attorney. Burlew is listed in the suit because Doe resides in Daviess County, and should he ever be convicted of violating the law, Burlew would be the one to prosecute them.
According to Burlew, the federal district court judge initially blocked the Commonwealth’s 120 county attorneys from enforcing the law but later revised his ruling to state that they could enforce it, as can Burlew, with the lone exception being against Doe.
Burlew is represented by the AG’s office in the case. Burlew explained the sequence of events leading up to the lawsuit.
“I was served with the lawsuit in the spring. Initially, they mailed me and asked if I would accept service by mail, but I never responded. I was eventually served by a constable,” Burlew said.
Burlew noted that, while no one has yet been charged under SB 249, he would be “glad to prosecute” any cases that arise, though enforcement presents challenges.
“How would I know who he is?” Burlew asked, referring to the anonymous plaintiff. “It’s an interesting scenario.”
The legal debate centers on whether SB 249, which connects existing sex offender registry laws that allow the public to locate offenders in the physical world, can be applied constitutionally to the online world. The AG’s brief argues that the law “is little different than sex-offender registry laws, whose constitutionality is not in question” and said that the legislation is essential to protecting children from potential online predators.
In a release, Sen. Lindsey Tichenor (R-Smithfield), who sponsored the bill, praised the AG’s defense.
“I’m grateful to Attorney General Coleman for standing up for Kentucky kids by defending this commonsense law and giving all parents the opportunity to know who their kids are talking to on the internet,” Tichenor said.
On the other side of the case, attorney Guy Hamilton-Smith, who is representing John Doe, criticized the law’s effectiveness. Hammilton-Smith issued a statement to the Owensboro Times via email.
“We agree that it’s important that we have laws that keep communities safe, but in the case of SB 249, it doesn’t do that. Kentucky already has multiple sets of laws that punish severely the kinds of crimes that SB 249 is supposed to ward off, but it does not do that either because it supposes that someone willing to commit a serious felony will instead be deterred by the misdemeanor penalties the act provides for,” Hamilton-Smith said.
Hamilton-Smith cited additional evidence and statistics for the case.
“Given that the expert evidence in the case shows that 96% of computer crimes against minors are committed by people to whom this act does not apply, the practical effect is that the law only harms the ability of people trying to reintegrate into society after being held accountable for an offense,” he said. “That should matter to us all, because to the extent people leaving prison succeed, everyone succeeds. The Constitution is not a popularity contest, and we are optimistic that the Sixth Circuit Court of Appeals will agree us and the district court that the law likely violates the First Amendment.”
The Kentucky Solicitor General Matt Kuhn and Principal Deputy Solicitor General Jack Heyburn filed the brief on behalf of the Commonwealth. The AG’s office has requested oral arguments before the Sixth Circuit.
Burlew said he feels confident about the case and that whoever loses will likely appeal to the U.S. Supreme Court. However, he said there is still no guarantee they would accept the case.
Brief for Appellant/Cross-Appellee John Burlew:
