John Does on sex-offender registry lose all civil rights claims against state, despite possible errors in listings

Persons listed on a part of the Massachusetts sex-offender registry for perpetrators who "moved out of state" have no constitutional privacy claims, state or federal, against commonwealth officials, despite a possibility of egregious error in listings, the Massachusetts Appeals Court ruled yesterday.  The case is John Doe, Sex Offender Registry Board No. 474362 v. Sex Offender Registry Board, No. 17-P-985 (Mass. App. Ct. Sept. 19, 2018).

Plaintiffs sued officials of the Massachusetts Sex Offender Registry Board (SORB) on theories of procedural and substantive due process under the federal and state constitutions after their names, pictures, and criminal histories were posted on the SORB website as "moved out of state."  The claimants alleged errors in the reporting, both in accuracy of the information and in the propriety of the posting.  The court recited the facts of one egregious case that suggested merit in the allegations of error:

[John] Doe No. 106929 came to Massachusetts in 2005 to attend school. He had previously been convicted in California for engaging in sexual relations with a sixteen year old when he was nineteen years old; California's age of consent was eighteen. After learning that Massachusetts had preliminarily classified him as a level three offender, Doe No. 106929 immediately left Massachusetts, and SORB ceased publishing his photograph and criminal history. Ten years later, in June of 2015, Doe No. 106929 learned through an Internet conversation that SORB had resumed publishing his name and photograph—this time on its "moved out of state" page. The sex offense listed on the page was "rape of a child." Doe No. 106929 received no notice from SORB regarding SORB's new practice, or that his name was being republished on SORB's Web site. Moreover, after Doe No. 106929 left Massachusetts, a court in California had entered an order expunging the record of his sex offense. Doe No. 106929 lost two jobs in California in 2015 once this information was made known at his workplaces.

The SORB abandoned its practice of publishing "moved out of state" records in 2015, but the superior court rejected the state's mootness defense.

Nevertheless, the Appeals Court rejected all plaintiff claims.  Affirming on federal procedural due process, the court held that the defendants were entitled to qualified immunity, because federal case law has not established any clear wrong in privacy violation.  Indeed, federal constitutional law points widely to the contrary.  Affirming on federal substantive due process, the court held that the claimants were unable to meet the demanding "shocks the conscience" standard that can turn what otherwise might be a state tort into a violation of the Fourteenth Amendment.  And reversing on claims under the Massachusetts Declaration of Rights, the court held that the defendants were entitled to sovereign immunity.  The Massachusetts legislature has voluntarily abrogated sovereign immunity for claims of "threats, intimidation or coercion" under the Massachusetts Civil Rights Act, but plaintiffs did not make such claims.

The court's reasoning on constitutional law is sound, but the facts point to the continuing failure of U.S. law to keep pace with Americans' privacy expectations in the digital age, especially relative to the pace of privacy law developments elsewhere in the interconnected world.  John Doe No. 106929's case is especially troubling in light of his California expungement.  Expungement already is an embattled concept—cf. "ban the box" movement—in the age of the internet that never forgets and the refusal of American policymakers to engage with the right to erasure.  For persons who committed crimes but served their time, that can mean stinging and enduring punishment well beyond what society and the justice system already determined was due.  The consequences are even more grave when the punishment is civil in nature, not even necessarily predicated on a criminal conviction.

The state should have no more license to defame or invade privacy than any person.  The common law maxim prized by the renowned Justice Oliver Wendell Holmes, Jr., himself a Bay Stater, asserts that for every wrong, the law provides a remedy (ubi jus ibi remedium).  Yet where digital privacy is concerned, profitable commerce in information seems to be holding at bay common law evolution, legislative innovation, and good sense.

Justice Oliver Wendell Holmes, Jr., was kind of a pompous ass

Justice Oliver Wendell Holmes, Jr. (FJC), “the great dissenter,” was kind of a pompous ass.  That probably should not have surprised me, given his birthright in Massachusetts aristocracy.  And that probably should not have been my chief take-away from the book, The Great Dissent (2013) (Amazon; Macmillan), the impressive accomplishment of author and law professor Thomas Healy at Seton Hall Law.  Somehow I am stubbornly surprised every time a person I admire turns out to be no more than human.

The subtitle of The Great Dissent reads, How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America.  That refers to a monumental shift, now legendary in constitutional law, that seemed to have occurred in Holmes’s thinking over the summer of 1919.  In the spring of 1919, Holmes and the Court majority were eagerly doing their part to condemn targets of the First Red Scare, such as labor agitator Eugene Debs, for criminal violation of the post-WWI Espionage Act.  Then in fall 1919, Holmes suddenly turns up in dissent to further convictions.  He used almost the same language, the same rules that he had authored and joined earlier in the year.  But in the fall, with not even a wink at the reader, he seemed to think the words had acquired entirely different meaning.

Partnering with Justice Louis Brandeis, Holmes’s powerful dissents in 1919 and following years outlined a philosophy of free speech that ultimately passed the test of time.  Holmes veritably gushed ideas, such as “clear and present danger” and “marketplace of ideas,” that became benchmark norms in 20th-century civil rights law—not only in the United States but in democracies around the world.

So what happened to Holmes in the summer of 1919?  To answer that question, Healy takes the reader on a spellbinding journey into the social and political dynamics of America’s intellectual class—and last survivors of the Civil War—as they struggled to maneuver the country in a new world order shaped by the ravages of an unprecedented war.

There is an apocryphal answer to the 1919 question.  The free speech analysis that Holmes and Brandeis worked out after 1919 bore a striking resemblance to an earlier proposition advanced by Judge Billings Learned Hand as trial judge in a 1917 case in federal court in New York.  Hand and Holmes knew one another, if not well, and their contrasting judicial philosophies, co-existing in era, frequently prompt comparison by scholars.  So it was once speculated that perhaps Holmes had met with Hand in precisely that summer.  It’s the kind of story that would make an exciting two-man show for the law-and-theater crowd.

As Healy tells it, Hand did play a role, if less direct, in reshaping Holmes’s thinking.  Another figure emerges as a key intermediary in Healy’s narrative, British political scientist Harold Laski.  Laski did interact with Holmes quite a bit, before, during, and after the summer of 1919, and his influence is plain.  Of course the full story is a good deal more complex, and Healy constructs it masterfully.  More than that, I won’t spoil.  Read the book.

Holmes in 1861 daguerreotype.

I was struck by three points of the story, and they all relate to Holmes not really being the paragon of personhood I wish he were.

First, Holmes was an elitist.  He read 50 books in the summer of 1919, Healy recounts.  He was always eager to immerse himself in the rich intellectual legacy of the Greek philosophers.  He was much less eager to take up Justice Brandeis’s invitation to visit textile mills in the summer of 1919 to witness for himself the unsettling state of labor and labor strikes in post-war America.  On the one hand, it’s fabulous that Milton’s Areopagitica and Mill’s On Liberty were part of the deep knowledge of the man who shaped modern free speech law.  On the other hand, it’s hard to tell whether he really understood the implications of dissent on the ground.

As my law school is now in the process of hiring a new dean, I think about Holmes's elitism in relation to the transformative trauma unfolding in legal education today.  Law schools are entranced with experiential education and are dumping jurisprudence in an effort to get students more time in practice training.  Ian Holloway and Steven Friedland recently located legal education in tension between a “grand university” model and a “Hessian craft guild" model.  Holmes was all grand university, and that is not ideal.  But modern free speech would not be what it is today if we were depending on the Hessian craft guild to build it.  It’s really important to have room for both.

Second, Holmes was a little slow on the uptake, even on free speech doctrine.  There was in fact correspondence between Hand and Holmes, though it pre-dated 1919.  And Healy reports how Holmes just missed the point.  Had he gotten the point, he might have started dissenting a bit earlier, and maybe even saved some demonstrators and harmless Bolsheviks from long prison terms.

A good example of Holmes’s fumbling start is the “clear and present danger” doctrine, which was born before the summer of 1919, but only later acquired its more rights-protective meaning.  “Clear and present” was indicative of Hand’s influence, suggesting as it did what today we might call a behavioral economic approach to legal reasoning.  But Holmes rather blew it, because his use of the test was highly subjective.  He gave the test no meaning, so allowed it to be perverted by the fever of the Red Scare.  Later evolution of the test would reveal a dynamic relationship between variables such as the “imminence” and “gravity” of the danger.  That more sophisticated analysis prophylactically protects speech that might be subversive, but poses no real threat, and also allows free speech doctrine to realize its critical anti-majoritarian function.  Hand understood that in 1917.  It took Holmes quite a while to work it out.

Third, Holmes was not a friend you could count on.  Amid the Red Scare, Holmes’s dear friends Laski and Felix Frankfurter, on the Harvard Law faculty, suffered virulent persecution for their politics and identities.  The “Red Summer” was the very summer of 1919.  Both men were sympathetic with labor, and both were labeled Bolsheviks.  Frankfurter, who was Jewish and Austrian, was further denigrated by post-war anti-Semitic and anti-German sentiments.  Critics of Laski, a British national, demanded his expulsion from teaching at Harvard Law.  Imagine!—persecution on a law faculty based on the politically correct zeitgeist.  How last century.

To be fair, Holmes and Harvard Law Dean Roscoe Pound did take steps to defend Laski and Frankfurter.  But their efforts, especially Holmes’s, were lackluster.  Despite the loving affection that Holmes professed for like-a-son Laski in private correspondence, Holmes resisted early entreaties to help.  Holmes was afraid of offending Laski and Frankfurter’s persecutors on the Harvard Law faculty, whom Holmes regarded as friends.  Holmes preferred to distance himself from the conflict and retreat to the sanctified solitude of his private library.  The great dissenter, a Civil War veteran wounded in action, whose famous diction dominated doctrinal opponents, shrank from moral defense of his friends, lest the comforts of his social and economic status be placed in jeopardy.   

Huh.

An honorable biographer, Healy is straightforward and matter of fact when it comes to Holmes the man.  Holmes was a voracious reader, brilliant thinker, and surely was one of the greatest jurists, perhaps the greatest jurist, in American history.  Civil rights as we know it today, and much of human rights as it is known in the world today, owes a debt to Holmes.

Holmes also cheated on his wife.

“If anyone, then, knows the good they ought to do and doesn’t do it, it is sin for them.”  James 4:17.