United States v. Fox

286 F.Supp.3d 1219

UNITED STATES of America, Plaintiff,

v.Robert Wesley FOX (01), Defendant.

Case No. 17–40075–01–DDC

United States District Court, D. Kansas.

Signed February 2, 2018

Christine E. Kenney, Office of United States Attorney, Topeka, KS, for Plaintiff.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge

This matter comes before the court for decision on defendant Robert Wesley Fox's Motion to Dismiss (Doc. 9). On August 23, 2017, a grand jury charged Mr. Fox with one count of failing to register as required under the Sex Offender Registration and Notification Act ("SORNA"). Mr. Fox now challenges this indictment, arguing that SORNA is unconstitutional. The government has filed a response to Mr. Fox's motion (Doc. 12). On January 4, 2018, the court held a hearing and took this motion under advisement. The court is ready to rule. For reasons explained below, the court denies Mr. Fox's Motion to Dismiss.

I. Facts

Facts Leading to the Government Charging Mr. Fox

On April 4, 1997, the El Paso County District Court in Colorado convicted Mr. Fox of Sexual Assault of a Child between the Age of 15 and 18 Years Old. As required by various state sexual offender registration laws, he registered as a sex offender at least three times: on April 5, 2010 in Sedgwick County, Kansas; on May 18, 2010, in Colorado Springs, Colorado; and on October 11, 2010 in Lee County, Mississippi.

In August 2017, deputies from the United States Marshals Service (USMS) were advised¹ that Lee County, Mississippi had issued a warrant for Mr. Fox for failing to register as a sex offender. According to the deputies' information, Mr. Fox was living in Marysville, Kansas. On August 16, 2017, the deputies contacted Marysville law enforcement officials and showed them Mr. Fox's photograph. The Marysville officials advised that they believed they had spoken with Mr. Fox earlier that summer. And USMS deputies discovered that someone added Mr. Fox's name to a Westar Energy account in Marysville on June 20, 2017.

That day, USMS deputies arrested Mr. Fox on the Mississippi warrant. On August 23, 2017, the grand jury charged Mr. Fox with failing to register as required under SORNA.

SORNA

In response to several high profile and horrific incidents committed by individuals previously convicted of sex crimes, Congress passed SORNA to create a comprehensive national registry for sex offenders. 34 U.S.C. § 20901 ("In order to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators against the victims listed below, Congress ... establishes a comprehensive national system for the registration of [sex] offenders ....").² It aims to accomplish this goal by creating "a national baseline for [state] sex offender registration and notification programs." The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38,030, 38,046 (July 2, 2008).

SORNA requires each sex offender to register in each state where he resides, is an employee, and is a student. 34 U.S.C. § 20913(a). When registering, the offender must provide, among other things, his name, social security number, home address, employer's address, school's address, license plate information, a description of his vehicle, and international travel plans. Id. § 20914(a). Each state, in turn, must ensure that its registry contains, among other things, a physical description of the sex offender, the law under which he was convicted, the offender's current photograph, his DNA, his fingerprints, and a copy of the offender's driver's license. Id. § 20914(b). An offender who moves across state lines and fails to register can be charged with a federal crime. 18 U.S.C. § 2250(a).

SORNA also mandates that each state's registry is available on the Internet. 34 U.S.C. § 20920(a). And the Attorney General maintains a national database for all sex offenders. The Attorney General must allow social networking sites to access this information. Id. § 20917(a).

Congress did not decide whether sex offenders who committed offenses before SORNA took effect were required to register. Id. § 20913(d). Instead, it allowed the Attorney General to decide that question. Id.

II. Discussion

In his Motion to Dismiss, Mr. Fox argues that SORNA is unconstitutional for four reasons. First, he argues that SORNA violates the First Amendment's compelled speech doctrine. Second, he asserts that SORNA violates the Constitution's Ex Post Facto Clause. Third, he contends that SORNA impermissibly delegates legislative authority to the Attorney General. And last, he argues that Congress exceeded its enumerated powers when it enacted SORNA. The court addresses these four arguments in subsections A through D, below.

A. First Amendment

Mr. Fox's first argument contends that SORNA violates the First Amendment because it forces him to speak. Specifically, he argues that SORNA forces him to declare that he is a dangerous person and forces him to reveal facts that he would prefer to keep secret. In general, the First Amendment " ‘prohibits the government from telling people what they must say.’ " Agency for Int'l Dev. v. Alliance for Open Society Int'l, Inc. , 570 U.S. 205, 213, 133 S.Ct. 2321, 186 L.Ed.2d 398 (2013) (quoting Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. , 547 U.S. 47, 61, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (further citations omitted) ).

The only Circuit to address the First Amendment argument made by Mr. Fox is the Fifth Circuit. See United States v. Arnold , 740 F.3d 1032, 1034 (5th Cir. 2014). The Fifth Circuit's opinion considered two leading "compelled speech" doctrine cases decided by the Supreme Court— West Virginia State Board of Education v. Barnette , 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), and Wooley v. Maynard , 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). In Barnette , the Supreme Court held that West Virginia could not compel students to salute the flag or recite the pledge of allegiance because such a law might require a speaker to affirm a belief with which he disagreed. 319 U.S. at 642, 63 S.Ct. 1178. Wooley invalidated a New Hampshire law requiring all noncommercial license plates to show the state motto, unobstructed. 430 U.S. at 715, 97 S.Ct. 1428. This law, the Supreme Court concluded, essentially required all New Hampshire citizens to be a " ‘moving billboard’ for [New Hampshire's] ideological message...." Id. After analyzing these cases, Arnold concluded that SORNA did not compel the offender in that case to speak in violation of the First Amendment because the law did not require him "(a) to affirm a religious, political, or ideological belief he disagrees with or (b) to be a moving billboard for a governmental ideological message." Id. at 1035.

While our Circuit has not yet considered the issue decided in Arnold and presented here, the court predicts it would reach the same result as Arnold reached. In other words, the court concludes that the Circuit also would conclude that SORNA does not compel Mr. Fox to speak in a fashion protected by the First Amendment.

While the court adopts and follows Arnold here, it amplifies one aspect of the opinion. One might read parts of Arnold to imply that the compelled speech doctrine is limited to situations like the ones presented in Barnette and Wooley , i.e. , to laws requiring a person "to affirm a religious, political, or ideological belief he disagrees with" or to serve as a "moving billboard" for a government's "ideological message." See id. The court does not understand the doctrine as one so limited.

In Riley v. National Federation of the Blind of North Carolina, Inc. , 487 U.S. 781, 798, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988), the Supreme Court applied the doctrine in a case where a state law compelled a person to disclose facts that the person did not want to disclose. In that case, a North Carolina law required all professional fundraisers to disclose to potential donors the percentage of funds they had solicited in the last year that actually were devoted to charity. Id. at 795, 108 S.Ct. 2667. Professional fundraisers challenged the law, arguing that it constituted compelled speech. Id. North Carolina argued that the law could not offend the compelled speech doctrine because it only compelled statements of fact. Id. at 797, 108 S.Ct. 2667. The Court analyzed, among other cases, Wooley and Barnette , and concluded, "These cases cannot be distinguished simply because they involved compelled statements of opinion while here we deal with compelled statements of ‘facts:’ either form of compulsion burdens protected speech." Id. at 797–98, 108 S.Ct. 2667.

Here, SORNA only requires Mr. Fox to disclose facts. The court thus concludes that Riley controls the analysis of this case.³ And, as Riley instructs, simply because a law compels speech does not end the court's inquiry. Id. at 798, 108 S.Ct. 2667 ; see also Barnette , 319 U.S. at 645, 63 S.Ct. 1178 (Murphy, J., concurring) ("The right of freedom of thought and of religion as guaranteed by the Constitution against State action includes both the right to speak freely and the right to refrain from speaking at all, except in so far as essential operations of government may require it for the preservation of an orderly society...."). Instead, the Riley analysis requires a reviewing court to determine if the compelled speech SORNA requires satisfies strict scrutiny. Riley , 487 U.S. at 798, 108 S.Ct. 2667. If it does, the law can stand. Id.

A law satisfies strict scrutiny when the government proves that the law is narrowly tailored to serve compelling governmental interests. Reed v. Town of Gilbert, Ariz. , ––– U.S. ––––, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015). The court easily concludes that SORNA serves a compelling governmental purpose. " ‘The purpose, or justification, of a [law] will often be evident on its face.’ " Doe v. City of Albuquerque , 667 F.3d 1111, 1133 (10th Cir. 2012) (...