Registration and the right to reputation.
The late Joseph Kent Brown wrote a law review article for Florida State University, in which he wrote, “of considerable importance in our society is the right of an individual to protect his or her reputation from false, irresponsible or malicious publications.” it was an article in which he weighed the First Amendment against a private individual’s reputational interest and right to privacy.
I read the article in the context of a member’s comment asking whether registrants might have a cause of action for defamation arising from the FDLE publishing their flyer on the internet.
In Florida, to state a claim for defamation the plaintiff must allege that: (1) the defendant published a false statement; (2) about the plaintiff; (3) to a third party; and (4) the statement caused injury to the plaintiff.
My initial reaction was that we would be dead in the water at the first element. As for (2), there’s no question that the statement is about us. Not only is it about us but it has our picture, name, address and identifying marks. As for (3), there’s no question it’s made to a third party. Not only is it made to “a” third party, it’s published on the internet for anyone in the world to see. And as for (4), one doesn’t have to live with this label for very long to realize the abundance of harm it does to your employability, your relationships, your ability to travel, or your safety.
But I couldn’t get past the first element; that the defendant published a false statement. That was until I thought about it some more and read the decision from Pennsylvania last week.
On a registrant’s flyer, at the very top it says Sexual Offender Sexual Predator and immediately to the right of the picture, it says, “[NAME] is registered as a Sexual Offender.” (or Predator). That alone might not be a false statement, true that we are required to register as such, but that label carries some very false assertions which can be found in Florida Statutes. 943.0435(12) states, “The Legislature finds that sexual offenders, especially those who have committed offenses against minors, often pose a high risk of engaging in sexual offenses even after being released from incarceration or commitment”
It doesn’t take a scholar to apply some deductive reasoning to this label. The state says “sex offenders” pose a high risk of engaging in sexual offenses, [NAME] is a “sex offender”, therefore [NAME] poses a high risk of engaging in sexual offenses.
But even without individually assessing [NAME]’s risk of sexually offending, which can be easily done, the risk of reoffense is categorically low overall for “sex offenders”. The “high risk” assertion might be sufficient to satisfy element (1) – false statement on a universal basis, but certainly without any individualized risk assessment, the state is effectively saying someone is dangerous when they may not be – a false statement!
One of the biggest problems I have with the public registry is there is no opportunity for rebuttal. The state labels you a monster, the state publishes it online for everyone to see, and you have no opportunity to say otherwise. In other defamation scenarios you would have the opportunity for rebuttal or to mitigate the reputational damage. For example; you are at work and a co-worker stands up and says, “you are a thief, you stole my stapler”. You would have the opportunity to stand up and say, “no I’m not! This is my stapler, I brought it from home.”. Even if someone writes a slanderous story about you in the newspaper, you can write an op-ed. If someone writes a scathing review about your business on Google, you can respond. Or, best yet, if someone defames you on social media you can wage a “twitter war” till people lose interest.
Not so with the registry. The state calls you dangerous and there is no available response, there is no administrative procedure to dispute your dangerousness and no matter what level of repentance you engage in, there is no way to rebut the governments warning that you are high risk, even if you were not high risk to begin with. Even though it’s a total lie!
Excellent analysis! Another potentially powerful angle of attack.
Recall that SCOTUS upheld the irrebutable presumption of dangerousness in 2003 (Connecticut Dept of Public Safety v Doe, one of two garbage SCOTUS decisions that year). One reason the PA court recently was able to rule the way it did was that state’s constitutional right to reputation.
PA’s constitution explicitly guarantees a right to reputation. FL’s, to my knowledge, does not. One hurdle we face that PA didn’t.
SECTION 4. “Freedom of speech and press.—Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated.
History.—Am. proposed by Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary of State May 5, 1998; adopted 1998.“
Were all grouped together,thus Falsely presumed frightening and I recidivism rates. Which leads to people believing we are presumed dangerous when not is far from the truth, which is where the libel/ slander lawsuit might work. Numerous, numerous postings on this site as shown that the state agencies are using it to exclusively punish us and use it for their campaign pieces. Just seems like if this Pennsylvania ruling gains even more traction we should copy their approach, the state can’t keep this farce up forever, seems there has to be something in the Florida Constitution we can use. I mean I think we’re finally getting over the issue of our time bard lawsuits from the audio recordings earlier this year so we are making progress it seems… if only we could get a ruling
F.A.C. I wrote a comment that was not posted, may I asked what you didn’t like about it, so i can correct it and make it passed scrutiny next time? I thought it was on point. Thanks for all you do I’m just asking.
I’ll edit it and allow it. You wrote, “Seems we can make a case that freedom of speech is being chilled if you’re not allowed to ask for individual assessments”. Technically you can ask for whatever you like but there’s no administrative process for it. That would be a due process issue and not a first amendment issue.
Ok thank you, for the clarification.
That is more like the movie “Minority Report”….we believe a future crime will be committed by you, therefore, we believe you are a danger to society at this moment. How can we defend from that mentality? I don’t see having much of a weapon to defend against it if the SCOTUS came up with the presumption of danger, however, how could the SCOTUS could perceive someone is dangerous without the proper evaluation of the individual in question?
Not exactly, Jacob. Doe hinged his argument on whether the CT law violated his procedural due process rights due to injury to reputation. The Court left open the door to a challenge based on substantive due process rights. I only read the holdings. Did the Court actually use the language “irrebutable presumption” later in dicta?
I’m not a lawyer, and every time I read legal decisions, I’m amazed by how they hinge on single words or phrases. Even the placement of a comma, or lack of it, cost a Maine company five million dollars in 2018.
Wow I asked something similar an hour ago. Great job at capturing the issue. How do we protect against libel and slander if we’re not awarded an opportunity to defend our character or reputation.
The registry is defamatory because it declares persons who have already paid their debts to society to be (active) “sex offenders”, even though fewer than 5% ever go on to repeat their crimes.
I am NOT a sex offender. It is false to claim that I am a sex offender. And it is false to claim that I am a danger to society. It is highly defamatory!
The registry is a public declaration of hate that is state sponsored. It is state sponsored hate.
The registry is a state sponsored blacklist. It is a Writ of Attainder.
It’s goal of punishment to the registered is obvious to all. (Those who claim ignorance of the punishment are lying.)
I have an issue with the present tense of the description, Sex Offender” and ” Sexual Predator”. If the website stated ” _____ was convicted of a sexual offense”, that properly places it in the past tense. But what is the duration of a description? If I am not currently, at this very moment, committing a sexual offense (which I happen not to be!), then am I accurately described as a Sex Offender”?
Yes, the worst the descriptor, the longer it’s apparently acceptable duration is. But if 5-year old Bobby picks up Dad’s gun and shoots his 2-year old sister dead, yes, he is literally a “killer”. But 20 years later, when graduating college and starting his adult life and career, does the his description from the tragic event still apply? Can he still be reasonably and fairly called a “killer”??
My sexual offense occurred nearly 30 years ago, for example. At what point in time does the descriptor “Sex Offender” expire?? 🤔🤷🏻♂️
Thank you for this great piece. Here’s my lengthy response.
I’m currently looking for a sharp, activist minded attorney to discuss my case for defamation of character, slander and libel due in part to the issue you have written about.
in 2014 I was accused of downloading several images of child pornography and subsequently arrested. My booking photo along with a nasty “story” full of inaccuracies and a couple down-right lies was promptly posted on one of the “your town” Post dot com websites. The “report” stated among other things that I called child pornography “art”, which is not true. The story was posted on Facebook and the customary threats (including death threats) began appearing. To this day, if you search my name on the internet, the booking photo is right up toward (or at) the top of the search results.
In 2015, having burned through most of my 401k, and dealing with the mental, emotional, and physical stress from the ordeal of fighting for my life and reputation; and fighting for the welfare, health and safety of my family, I became exhausted and wanted to end the pain. I was convinced that I would not get a fair trial. I plead guilty – not for a reduction in the charge – but to be granted the guarantee of a “short” prison sentence and no probation. Of course, I have not escaped the SOR.
in 2017, after being released from prison I secured a great job in sales. At the time I was employed, no background screens were conducted for new-hires in the sales department. In 2019, a policy was implemented requiring background screens for all employees, including current staff. I consented to the background screen and was told by the HR Manager that “I wasn’t going anywhere”.
Fast-forward. My employer had hired a Chief Human Resources Officer early this year. Last month she called me and said that a former employee, after leaving the organization had made several complaints to her about the dealership, including a complaint about me, stating that I had said to her (former employee) that “child pornography is art”. I of course did not make the comment, which I emphatically stated to the HR officer.
Within a few days, I was called into the office and told that my employment was being terminated for making the remark in the workplace. Not only is this a lie, but the online hit piece posted in 2014 was a lie, and obviously the source of this most recent chain of events, which I shared with my manager and the HR officer.
Given new and quantifiable damages I’ve suffered resulting from the defamation of character and libelous article that remains on the internet, my intent is to share these facts with an attorney to see if there might be a case worth filing.
For my entire period of employment – over four and a half years – I was a model employee with no conduct or behavioral issues. Additionally, I am about to turn 65 years of age and while employed, required some religious accommodations from the dealership. And to ice the cake, I posted more sales last month than any month previous, and received a fraction of the commission that I was expecting on my final pay check.
This is my account of the pain and damage of the reputation and defamation issues (among others). I know that you are not an attorney referral organization, but hope that someone who might read this might point me in the right direction. As many of us know, many lawyers do not want to deal with defamation suits, and I imagine most don’t want to deal with matters fighting for RSOs.
We have private attorney referrals on our referrals page. They deal primarily with RSOs. If you are looking for a pro-bono (Free) attorney, you should not contact them.
‘Many lawyers do not like to deal with defamation suits’ because they don’t like to lose.
What we feel constitutes defamation, may not fit the legal definition of defamation.
And from a former employee none the less, which is why it is even more puzzling after all those years they let you go. I am sorry. Lies here on our end as well. So frustrating.
Sorry for a little bit of a rant but get to the bottom you will understand..
If you study history it’s easy to see the future..
1) every draconian law they now employ is not new.All of them were used to terrorize others before you. either for blacks,women, heretics,witches,commies, Japanese,unmarried mothers..( you get the idea) the government will always segregate one group it will “fabricate” for abuse by itself and for society as a whole..it’s how the government protects itself from and its own crimes from exposure..They will ignore laws that don’t fit the narrative of the crime they want to commit and they will creat laws to justify their crimes..It’s the American way..
2) society loves the idea of someone to abuse as long as its not them so they are eager participants. Makes them feel better about how worthless they are if you are worth even less..Romans knew this and created colloseums and tortured and fed humans to each other and to the lions for the sport of the adoring crowds..I promise that your neighbors are no different now and maybe even less civilized..any faux excuse is enough when it’s an opportunity to abuse someone else..you think you are monsters now because society tells you so..Take heart in knowing that so did the blacks, japanese,Jews, Chinese,Irish,women,unwed mom’s,witches,and native Americans before you when society made them monsters too. Eye opening fact? Study history and watch your neighbor a little closer .you may find 95% of you are guilty of nothing more then what your neighbor didn’t get caught for or what was perfectly normal through most of human society and most countries still consider normal..(shocker huh?)..
Question for ya..Who is the real monster? The person who perhaps did something to harm another but has paid for their actions, repented,and is working to be a productive citizen or the masses whome under color of law use every excuse possible to commit worse crimes, abuse and torture to the person and any innocent associated with that person?
Easy to see society is the real monsters but they need to brand you as such so they don’t have to look in the mirror…
Until society finds someone else to demonize,terrorize and commit crimes against humanity on don’t expect a legit break…it’s been that way for the entire American history and don’t expect it to change..
I’ve been reading your feeds for several years and I usually don’t comment, but I have to say this is probably one of the best things I’ve ever read published by you guys thank you very much for all your support and your help to all of us who are mistakenly labeled dangerous to society
I found the article very interesting but the state of Florida has no intentions of changing its wording so I am sure your statement won’t go far! Just like our government & laws in Florida…the Big Shots will NEVER allow change for sex offenders nor predators as long as they label you as an repeating offender.
ACTUALLY on my flyer it said im convicted of xxx but i pled to attempted they never listed attempted so that is a 100% lie for #1
I hope a good paralegal will put together a legal blueprint that others can copy and submit in their own jurisdictions for this very pernicious offense of the registries all across the nation. Likewise for the practice of some states (like Illinois) of automatically bumping up to predator status for a no-contact offense committed in another state (Like Florida, for instance) Making Level 2 and 3 offenders out of Level 1s just because they have moved out of their original state of conviction.
Phys Ed
Amen! The thing is the prosecution can write into anything they want into your record ,without you even knowing what they wrote and make up anything lies without any accountability whatsoever. When you move to another state they look at what was written and go by that instead of actually what you were convicted of. As if it were facts when all it is is lies and fabrication. Then they judge you on that instead of what really happened.
It is interesting that one of the reasons for Judge Aileen Cannon granting Trump’s request for a special master was that releasing documents could cause undue “reputational harm” to him. We now have a federal judge in a very high-profile case warning against harming reputations. This is not a political post. I just see that as a potentially useful citation. Sauce for the goose is sauce for the gander.