State of Iowa v. Lloyd Aschbrenner

IN THE SUPREME COURT OF IOWA
No. 18–1045

Filed April 5, 2019

STATE OF IOWA,

Appellee,

vs.

LLOYD ASCHBRENNER,

Appellant.

Appeal from the Iowa District Court for Linn County, Mitchell E.

Turner, Judge.

Defendant appeals conviction for violating Internet identifier

reporting requirement of Iowa’s sex offender registration statute.

AFFIRMED.

Philip B. Mears of Mears Law Office, Iowa City, for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant

Attorney General, Jerry Vander Sanden, County Attorney, and Rena

Schulte, Assistant County Attorney, for appellee.
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WATERMAN, Justice.

The legislature periodically updates statutes to keep pace with

technology. Convicted sex offenders have long been required to report

and update their resident addresses with the local sheriff. The sex

offender registry alerts neighbors, especially those with children, of sex

offenders and helps law enforcement track them. In this appeal, an

adult registered sex offender presents constitutional challenges to his

conviction for violating a more recent statutory requirement that he

report his “Internet identifiers” (such as names used on social media).

In 2007, the offender pleaded guilty to lascivious acts with a child

and was placed on the sex offender registry pursuant to Iowa Code

chapter 692A (2007). The legislature’s 2009 amendment to that statute

added the requirement that the offender disclose his Internet identifiers

to the local sheriff and update the sheriff with any subsequent changes.

The law is intended to prevent or detect a sex offender’s use of Internet

communications to lure new victims.

In 2017, the offender was charged with failing to report his Internet

identifier for a Facebook account he was using under an assumed name.

He argued that the statute, as applied to him, violated the Free Speech

and Ex Post Facto Clauses in the Federal and State Constitutions. The

district court declined to depart from our precedent, holding that sex

offender registration requirements are not punitive, and rejected his

ex post facto and free speech challenges. He appealed his resulting

conviction, and his appellate briefing relies in part on our decision in In

re T.H., 913 N.W.2d 578 (Iowa 2018) (holding that sex offender

registration requirements for a juvenile offender were punitive). We

retained his appeal.
 3

On our review, we hold In re T.H. applies only to juvenile offenders

and the district court correctly rejected the ex post facto challenge.

Applying intermediate scrutiny, we hold the Internet identifier reporting

requirement is content neutral, serves a significant state interest, is

narrowly tailored, and therefore withstands challenge under the First

Amendment and article I, section 7 of the Iowa Constitution. The statute

allows the offender to use social media without requiring disclosure of

passwords, the offender can update his Internet identifiers with the

sheriff by phone or email within five business days, and similar Internet

identifier reporting requirements have been upheld by other courts.

Accordingly, we affirm the district court judgment.

I. Background Facts and Proceedings.

In 2007, Lloyd Aschbrenner, then age thirty-seven, pleaded guilty

to one count of lascivious acts with a child in violation of Iowa Code

section 709.8(3) (2007), a class “D” felony, after he molested his thirteen-

year-old stepdaughter. The district court sentenced Aschbrenner to a

five-year suspended prison sentence, supervised probation, and a ten-

year special sentence requiring him to register as a sex offender. In 2008

and 2014, Aschbrenner was convicted of sex offender registry violations,

each treated as a first offense, in Benton County and Linn County,

respectively. As a result of his 2014 conviction, his registration

requirement was extended another ten years. Id. § 692A.106(4) (2014).

Under the sex offender registration statute in force when

Aschbrenner was convicted and sentenced in 2007, he was required to

provide the sheriff with his name, address, and telephone number. Iowa

Code § 692A.3 (2007). He was obligated to report any changes. Id. In

2009, the legislature rewrote and renumbered chapter 692A, significantly

amending the statute. 2009 Iowa Acts ch. 119, div. I (codified as
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amended at Iowa Code ch. 692A (2011)). One of the amendments

changed the amount of information an offender was required to provide

to the sheriff:

A sex offender shall appear in person to register with the
sheriff of each county where the offender has a residence,
maintains employment, or is in attendance as a student,
within five business days of being required to register under
section 692A.103 by providing all relevant information to the
sheriff.

Iowa Code § 692A.104(1). Chapter 692A defines “relevant information” to

include twenty-one categories. Id. § 692A.101(23)(a). The one at issue

here is “Internet identifier,” defined as

an electronic mail address, instant message address or
identifier, or any other designation or moniker used for self-
identification during internet communication or posting,
including all designations used for the purpose of routing or
self-identification in internet communications or postings.

Id. § 692A.101(15). The statute does not prohibit the offender from using

the Internet and does not require the offender to provide the sheriff with

any passwords. See Iowa Code ch. 692A.

The offender is required to update the sheriff within five days of

any changes in his or her Internet identifiers but need not report in

person. Id. § 692A.104(3). The legislature authorized the Iowa

Department of Public Safety (DPS) to promulgate rules implementing the

reporting requirements. Id. The DPS issued a rule allowing offenders to

update “any item of relevant information other than changes of address,

places of attendance as a student, or places of employment . . . in

person, by telephone, or electronically, within five days of the change

occurring.” Iowa Admin. Code r. 661—83.3(4) (2009).

A member of the public may contact the sheriff’s office to inquire

about “relevant information from the registry regarding a specific sex
 5

offender,” including whether a particular Internet identifier belongs to a

registered sex offender. Id. § 692A.121(5)(a). But “[s]ex offender registry

records are confidential records not subject to examination and copying

by a member of the public and shall only be released as provided in this

section.” Id. § 692A.121(14).

On April 24, 2017, the Iowa Division of Criminal Investigation

(DCI) received an anonymous tip through the sex offender registry

website that Aschbrenner had a Facebook profile under the name “Cyrus

Templar.” Although Aschbrenner had reported an email address to the

sheriff, he had not reported his Facebook account.

DCI agents investigated the tip and obtained records from

Mediacom and Facebook showing two IP addresses linked to the

Facebook account: one belonging to Aschbrenner’s former employer and

another belonging to the woman who owned the residence where

Aschbrenner resided. The DCI also looked at Cyrus Templar’s Facebook

page. The page showed he was a member of a band called Lipstick Slick,

which frequently performed at bars as well as at festivals minors attend.

A DCI agent and a Linn County sheriff’s deputy spoke to Aschbrenner’s

former employer, who identified Aschbrenner from a photo on Lipstick

Slick’s Facebook page. The investigators also spoke to a band member

who told them Aschbrenner, who she knew as “Buddy,” had been playing

in the band since February 2017. When investigators interviewed

Aschbrenner, he admitted the Cyrus Templar Facebook page was his and

that he had failed to report it to the sheriff.

In August 2017, Aschbrenner was charged by trial information

with a sex offender registry violation, second or subsequent offense, in

violation of Iowa Code sections 692A.103, .104, and .111 for “fail[ing] to
 6

provide all ‘relevant information’ concerning his internet identities to the

Linn County Sheriff’s Department as required by law.”

Aschbrenner filed a motion to dismiss, arguing the Internet

identifier-reporting requirement violates the prohibitions on ex post facto

punishment and the freedom of speech guarantees in the United States

and Iowa Constitutions. The State resisted. The district court denied

the motion.

The parties stipulated to a bench trial on the minutes of testimony.

Aschbrenner was found guilty as charged. The district court imposed a

five-year suspended sentence, two years of supervised probation, and a

$750 fine. Aschbrenner appealed, asserting the same constitutional

challenges to the Internet identifier-reporting requirement. We retained

his appeal.

II. Scope of Review.

Our standard of review for rulings on constitutional challenges to a

sex offender registration statute is de novo. See In re T.H., 913 N.W.2d at

582.

[W]e must remember that statutes are cloaked with a
presumption of constitutionality. The challenger bears a
heavy burden, because [he] must prove the
unconstitutionality beyond a reasonable doubt. Moreover,
“the challenger must refute every reasonable basis upon
which the statute could be found to be constitutional.”
Furthermore, if the statute is capable of being construed in
more than one manner, one of which is constitutional, we
must adopt that construction.

State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005) (quoting State v.

Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002)), superseded by

statute on other grounds by In re T.H., 913 N.W.2d at 588.
 7

III. Analysis.

Aschbrenner argues the amendment enacted after his conviction

that expanded the relevant information he is required to provide to the

sheriff to include Internet identifiers violates the prohibitions against

ex post facto punishment and the freedom of speech guarantees in the

United States and Iowa Constitutions. To provide context for his

challenges, we begin our analysis with the genesis of the statutory

requirements.

In the early 1990s, after seven-year-old Megan Kanka was raped

and murdered by a neighbor who, unbeknownst to Megan’s parents, was

a convicted sex offender, states began enacting sex offender registration

and community notification statutes. Nichols v. United States, 578 U.S.

___, ___, 136 S. Ct. 1113, 1116 (2016); Smith v. Doe, 538 U.S. 84, 89–90,

123 S. Ct. 1140, 1145 (2003). In 1994, Congress enacted the Jacob

Wetterling Crimes Against Children and Sexually Violent Offender

Registration Act, Pub. L. No. 103-322, 108 Stat. 2038 (1994) (codified at

42 U.S.C. § 14071 (1994)), “condition[ing] federal funds on States’

enacting sex-offender registry laws meeting certain minimum standards.”

Nichols, 578 U.S. at ___, 136 S. Ct. at 1116. “In 2006, Congress replaced

the Wetterling Act with the Sex Offender Registration and Notification Act

(SORNA),” Title I of the Adam Walsh Child Protection and Safety Act of

2006. Id.

Congress enacted the Adam Walsh Child Protection
and Safety Act of 2006 to “protect children from sexual
exploitation and violent crime, to prevent child abuse and
child pornography, to promote Internet safety, and to honor
the memory of Adam Walsh and other child crime victims.”

United States v. Searcy, 880 F.3d 116, 119 (4th Cir. 2018) (emphasis

added) (quoting Adam Walsh Child Protection and Safety Act of 2006,
 8

Pub. L. No. 109–248, 120 Stat 587). The 2009 amendment to Iowa Code

chapter 692A “was intended to more closely conform Iowa’s sex offender

registry law to” SORNA. Maxwell v. Iowa Dep’t of Pub. Safety, 903

N.W.2d 179, 185 n.4 (Iowa 2017).

The idea behind sex offender registration and notification systems

is to alert people to the criminal history of sex offenders living nearby so

that precautions may be taken and to enable law enforcement to track

sex offenders. Parents presumably would limit their child’s contact with

a neighbor on the sex offender registry. Similarly, parents monitoring

their child’s suspicious Internet communications could report the

sender’s Internet identifier to the sheriff to determine whether the sender

is on the registry.

Mindful of the legislative purpose to protect the public, we turn to

Aschbrenner’s ex post facto and freedom of speech challenges to chapter

692A. We address each challenge in turn.

A. Prohibitions on Ex Post Facto Punishment.

The [E]x [P]ost [F]acto [C]lauses of the [F]ederal and
[S]tate [C]onstitutions forbid enactment of laws that impose
punishment for an act that was not punishable when
committed or that increases the quantum of punishment
provided for the crime when it was committed.

State v. Pickens, 558 N.W.2d 396, 397 (Iowa 1997); see also U.S. Const.

art. I, § 10, cl. 1 (“No State shall . . . pass any . . . ex post facto Law,

. . . .”); Iowa Const. art. I, § 21 (“No . . . ex post facto law . . . shall ever be

passed.”).

“The ex post facto prohibition extends only to ‘cases criminal in

nature . . . even where the civil consequences are “serious” in nature.’ ”

Seering, 701 N.W.2d at 667 (alteration in original) (quoting Hills v. Iowa

Dep’t of Transp. & Motor Vehicle Div., 534 N.W.2d 640, 641 (Iowa 1995)).
 9

For that reason, “[p]urely civil penalties . . . are not subjected to such

restrictions.” Id. (alteration in original) (quoting State v. Corwin, 616

N.W.2d 600, 601 (Iowa 2000) (en banc)). “If the law was intended to be

civil and nonpunitive, then we look to see if it is nevertheless ‘so punitive

either in purpose or effect as to negate’ the nonpunitive intent.” Id.

(quoting Smith, 538 U.S. at 92, 123 S. Ct. at 1147).

[T]he mark of an ex post facto law is the imposition of what
can fairly be designated punishment for past acts. The
question in each case where unpleasant consequences are
brought to bear upon an individual for prior conduct, is
whether the legislative aim was to punish that individual for
past activity, or whether the restriction of the individual
comes about as a relevant incident to a regulation of a
present situation . . . .

Pickens, 558 N.W.2d at 398 (quoting De Veau v. Braisted, 363 U.S. 144,

160, 80 S. Ct. 1146, 1155 (1960)).

We have adopted the test established in Kennedy v. Mendoza-

Martinez, 372 U.S. 144, 83 S. Ct. 554 (1963), to determine whether a

statute is sufficiently punitive to constitute a prohibited ex post facto

law. We consider the following factors:

[1] Whether the sanction involves an affirmative disability or
restraint, [2] whether it has historically been regarded as a
punishment, [3] whether it comes into play only on a finding
of scienter, [4] whether its operation will promote the
traditional aims of punishment-retribution or deterrence,
[5] whether the behavior to which it applies is already a
crime, [6] whether an alternative purpose to which it may
rationally be connected is assignable for it, and [7] whether it
appears excessive in relation to the alternative purpose
assigned.

Pickens, 558 N.W.2d at 398–99 (quoting Mendoza-Martinez, 372 U.S. at

168–69, 83 S. Ct. at 567–68).

We have applied the Mendoza-Martinez test to our sex offender

registration statute several times. After analyzing the seven factors, we
 10

held that “Iowa’s sex offender registration statute, Iowa Code chapter

692A, is not punitive and therefore is not ex post facto.” Pickens, 558

N.W.2d at 400. This is because “the purpose of the registry is protection

of the health and safety of individuals, and particularly children, from

individuals who, by virtue of probation, parole, or other release, have

been given access to members of the public.” State v. Iowa Dist. Ct., 843

N.W.2d 76, 81 (Iowa 2014); see also State v. Graham, 897 N.W.2d 476,

487–91 (Iowa 2017) (rejecting claim that a lifetime sex offender

registration requirement constituted cruel and unusual punishment);

Seering, 701 N.W.2d at 668–69 (concluding that the sex offender

registration statute’s residency restriction did not violate prohibitions on

ex post facto punishment).

Last year, however, we held “that mandatory sex offender

registration for juvenile offenders is sufficiently punitive to amount to

imposing criminal punishment.” In re T.H., 913 N.W.2d at 596.1

Aschbrenner argues that based on our holding in In re T.H., we should

find the sex offender registration requirements “sufficiently punitive to

render the scheme penal in nature” with regard to adult offenders. Id. at

588.
When considering the Mendoza-Martinez factors in In re T.H., we

concluded,

The statute imposes an affirmative restraint akin to
supervised probation. It mandates the mass dissemination
of offender records that are historically kept confidential to

1Three justices dissented in part in In re T.H., and would have held that Iowa’s
sex offender registration statute was not punitive as applied either to juvenile or adult
offenders. 913 N.W.2d at 607 (Mansfield, J., concurring in part and dissenting in part)
(“We have held that Iowa’s sex offender registration laws do not constitute punishment
under either the United States or the Iowa Constitutions. . . . I do not agree that
registration which is nonpunitive for adults becomes punitive when applied in a more
lenient way to juveniles.”).
 11
promote the juvenile’s potential for rehabilitation. And the
sheer number of restrictions imposed on juveniles, given the
demonstrated low juvenile recidivism rate, is excessive in
light of the civil purpose of preventing multiple offenses.

Id. at 596. We focused on factors unique to juveniles—the confidentiality

of juvenile adjudications, their lower recidivism rates, and the impact of

school exclusion zones on the child offender’s ability to reintegrate with

peer groups. Id. at 588–97.

In re T.H. is readily distinguishable based on the unique concerns

of juvenile offenders that are inapplicable to adult offenders. Adult

offenders are better able to meaningfully reintegrate into the community

and interact with their peer groups notwithstanding the restrictions in

the sex offender registration statute, such as avoiding schools and school

events—restrictions that we concluded were punitive as applied to

juveniles. Additionally, an adult offender’s criminal conviction is already

a matter of public record, unlike juvenile adjudications, which are sealed

unless the juvenile’s case is transferred to adult criminal court. Adults

also have higher recidivism rates.

Our 2005 decision in Seering remains good law as to adult sex

offenders. See In re T.H., 913 N.W.2d at 596 (holding Iowa’s sex offender

registration statute punitive only as to juvenile offenders); Formaro v.

Polk County, 773 N.W.2d 834, 843–44 (Iowa 2009) (relying on Seering to

hold that Iowa’s sex offender registration statute’s 2000-foot rule did not

violate the ex post facto prohibitions in the United States and Iowa

Constitutions). Seering relied on the United States Supreme Court’s

decision in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140 (2003), which held

that Alaska’s sex offender registration statute was nonpunitive. Seering,

701 N.W.2d at 665–69.
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Since we decided Seering, every circuit of the United States Court

of Appeals has concluded that sex offender registration statutes are

nonpunitive. 2 Moreover, many state supreme courts and courts of

appeal have reached the same conclusion since 2005. 3 We decline to

2See Shaw v. Patton, 823 F.3d 556, 577 (10th Cir. 2016) (holding Oklahoma’s
sex offender registration statute was not punitive); Doe v. Cuomo, 755 F.3d 105, 111–12
(2d Cir. 2014) (holding that the federal sex offender registration statute was not
punitive); United States v. Elk Shoulder, 738 F.3d 948, 954 (9th Cir. 2013) (same);
United States v. Under Seal, 709 F.3d 257, 266 (4th Cir. 2013) (same); United States v.
Parks, 698 F.3d 1, 5–7 (1st Cir. 2012) (same); United States v. Felts, 674 F.3d 599, 606
(6th Cir. 2012) (same); United States v. W.B.H., 664 F.3d 848, 859–60 (11th Cir. 2011)
(same); Anderson v. Holder, 647 F.3d 1165, 1169–73 (D.C. Cir. 2011) (holding the
District of Columbia’s sex offender registration statute was not punitive); United States
v. Leach, 639 F.3d 769, 773 (7th Cir. 2011) (holding the federal registration statute was
not punitive); United States v. Shenandoah, 595 F.3d 151, 158–59 (3d Cir. 2010)
(finding SORNA did not implicate the Ex Post Facto Clause), abrogated on other grounds
by Reynolds v. United States, 565 U.S. 432, 445–46, 132 S. Ct. 975, 984 (2012); United
States v. Young, 585 F.3d 199, 204–06 (5th Cir. 2009) (holding federal registration
statute nonpunitive); United States v. May, 535 F.3d 912, 919–20 (8th Cir. 2008)
(same), abrogated on other grounds by Reynolds, 565 U.S at 445–46, 132 S. Ct. at 984.
3See In re J.C., 221 Cal. Rptr. 3d 579, 591 (Cal. Ct. App. 2017) (holding juvenile
sex offender registration was not punishment because the offender “failed to show the
limited degree of public disclosure applicable to juveniles required to register . . . is
sufficiently burdensome to distinguish it from that applicable to adult offenders”); In re
J.O., 383 P.3d 69, 75 (Colo. App. 2015) (holding sex offender registration as applied to
juveniles was not punishment); State v. Zerbe, 50 N.E.3d 368, 371 (Ind. 2016)
(concluding that applying the sex offender registration statute to an offender who
committed his offense prior to the enactment of the registration statute was not ex post
facto punishment); State v. Reed, 399 P.3d 865, 904 (Kan. 2017) (“Registration
pursuant to [the Kansas registration statute] for sex offenders is not punishment.”);
People v. Tucker, 879 N.W.2d 906, 925–26 (Mich. Ct. App. 2015) (concluding that the
recapture, student safety zones, and in-person reporting requirements of Michigan’s sex
offender registration statute did not constitute punishment); State v. LaFountain, 901
N.W.2d 441, 450 (Minn. Ct. App. 2017) (concluding that Minnesota’s sex offender
registration statute was not punitive and did not compel offenders to incriminate
themselves in violation of the Fifth Amendment); Doe v. Phillips, 194 S.W.3d 833, 842
(Mo. 2006) (en banc) (concluding that Missouri’s sex offender registration statute did
not violate state or federal ex post facto prohibitions, but one aspect did violate
Missouri’s prohibition on laws “retrospective in operation”); State v. Boche, 885 N.W.2d
523, 538–39 (Neb. 2016) (concluding that Nebraska’s sex offender registration
requirements did not constitute punishment); State v. Eighth Judicial Dist. Ct., 306 P.3d
369, 388 (Nev. 2013) (holding retroactive application of the sex offender registration
statute to certain juveniles did not violate prohibitions on ex post facto punishment);
State v. Meador, 785 N.W.2d 886, 889–90 (N.D. 2010) (holding that the retroactive
application of sexual offender registration requirements to an offender whose conviction
for a sexual offense occurred before enactment of the registration requirements did not
violate the constitutional prohibition of ex post facto laws because the registration
 13

overrule Seering as to adult offenders. See Book v. Doublestar Dongfeng

Tyre Co., 860 N.W.2d 576, 594 (Iowa 2015) (“Stare decisis alone dictates

continued adherence to our precedent absent a compelling reason to

change the law.”). The statute as applied to Aschbrenner is nonpunitive.

In Doe v. Shurtleff, the United States Court of Appeals for the Tenth

Circuit rejected a constitutional challenge to Utah’s Internet identifier

requirement similar to Iowa’s holding that Utah’s Internet identifier

reporting requirement did not constitute punishment triggering

ex post facto prohibitions. 628 F.3d 1217, 1227 (10th Cir. 2010).

When considering Aschbrenner’s motion to dismiss the sex

offender registration violation charge, the district court aptly noted,

With the internet having so affected our daily lives, the
Court agrees with Plaintiff’s assertion that providing
information regarding a person’s internet identifier is no
different than providing an address or telephone number.
The goal of the statute at issue in this case is public safety,
and having information regarding the internet presence of an
individual on the sex offender registry enables law
enforcement to maintain data in the same way it does when
it comes to the individual’s address or telephone number;
just as the location of an individual’s residence may impact
the risk to reoffend, so too does an individual’s internet
presence.

We agree. The legislature reasonably could update the sex offender

registration requirements in response to the exponential increases in use

of social media. Just as disclosure of a sex offender’s street address

alerts neighbors with children who might interact with the offender, the

disclosure of the names an offender uses on social media helps protect

________________________
requirements were remedial and nonpunitive); Vaughn v. State, 391 P.3d 1086, 1100
(Wyo. 2017) (holding that applying Wyoming’s sex offender registration statute to
juveniles did not violate ex post facto prohibitions); Kammerer v. State, 322 P.3d 827,
839–40 (Wyo. 2014) (holding that Wyoming’s sex offender registration statute did not
violate federal or state ex post facto prohibitions).
 14

the public from the risks of anonymous postings or electronic

communications trolling for victims.

For all of these reasons, we reject Aschbrenner’s ex post facto

challenges under the Iowa and Federal Constitutions.

B. Freedom of Speech Guarantees. Aschbrenner argues that the

sex offender registration statute’s Internet identifier reporting

requirement unconstitutionally infringes on his right to freedom of

speech under the Federal and Iowa Constitutions. 4 “A fundamental

principle of the First Amendment is that all persons have access to

places where they can speak and listen, and then, after reflection, speak

and listen once more.” Packingham v. North Carolina, 582 U.S. ___, ___,

137 S. Ct. 1730, 1735 (2017). Today, one of the most important forums

for people to share ideas is the Internet, particularly social media. Our

court is not the first to adjudicate a sex offender’s constitutional

challenges to social media restrictions or disclosure requirements.

1. Other jurisdictions. Various federal courts have considered

whether sex offender statutes with various reporting requirements

related to Internet use violated the offender’s First Amendment rights. In

Packingham, the United States Supreme Court invalidated a

North Carolina statute that made it a felony for sex offenders to access

any social media website “where the sex offender knows that the site

permits minor children to become members or to create or maintain

personal Web pages.” 582 U.S. at ___, 137 S. Ct. at 1733–38; see also

Doe v. Nebraska, 898 F. Supp. 2d 1086, 1107–22 (D. Neb. 2012) (finding

Nebraska’s sex offender registration statute that banned offenders from

4U.S. Const. amend. I (“Congress shall make no law . . . abridging the freedom of
speech . . . .”); Iowa Const. art. I, § 7 (“No law shall be passed to restrain or abridge the
liberty of speech, or of the press.”).
 15

using social networking sites violated the First Amendment). However,

the Supreme Court noted,

[I]t can be assumed that the First Amendment permits a
State to enact specific, narrowly tailored laws that prohibit a
sex offender from engaging in conduct that often presages a
sexual crime, like contacting a minor or using a website to
gather information about a minor.”

Packingham, 582 U.S. at ___, 137 S. Ct. at 1737.

Packingham involved a total ban on social media use. Meanwhile,

other state and federal courts have upheld sex offender Internet identifier

reporting requirements. See People v. Minnis, 67 N.E.3d 272, 291 (Ill.

2016) (holding that Illinois’s Internet identifier disclosure requirement

did not violate the First Amendment); Harris v. State, 985 N.E.2d 767,

775–76 (Ind. Ct. App. 2013) (holding that an Indiana statute requiring

offender to report “[a]ny electronic mail address, instant messaging

username, electronic chat room username, or social networking web site

username that the sex or violent offender uses or intends to use” did not

violate the First Amendment (footnote omitted) (quoting Ind. Code § 11-8-

8-8(a)(7) (2013))); Coppolino v. Noonan, 102 A.3d 1254, 1284–85 (Pa.
Commw. Ct. 2014) (concluding that a registration statute limiting
disclosure of Internet identifiers to law enforcement, victims, and

community members living near sexually violent predators did not violate

the First Amendment); Ex parte Odom, ___ S.W.3d ___, No. 01-18-00169-

CR, 2018 WL 6694790, at *10 (Tex. Ct. App. Dec. 20, 2018); Shurtleff,

628 F.3d at 1225–26 (holding Utah’s Internet identifier reporting

requirement did not violate the First Amendment). In Odom, the Texas

Court of Appeals rejected a First Amendment challenge to a sex offender

Internet identifier-reporting requirement similar to Iowa’s. The Odom

court noted that “sex offender registration statutes enacted in at least
 16

eight states have been held to be content-neutral regulations subject to

intermediate scrutiny.” Odom, at *5; see also id. at n.1 (collecting cases).

More stringent restrictions, however, have been found

unconstitutional. In Doe v. Harris, the United States Court of Appeals for

the Ninth Circuit struck down a California statute that required sex

offenders subject to the state’s registration requirements to report

Internet identifiers and Internet service providers and to provide written

notice of any changes to law enforcement within twenty-four hours of the

change. 772 F.3d 563, 568 (9th Cir. 2014). The court found the statute

was content neutral and applied intermediate scrutiny. Id. at 575. The

court determined that while the statute served a significant government

interest, it “unnecessarily chill[ed] protected speech in at least three

ways.” Id. at 577–78. The court concluded that the statute chilled

protected speech because it “does not make clear what sex offenders are

required to report, there are insufficient safeguards preventing the public

release of the information sex offenders do report, and the 24-hour

reporting requirement is onerous and overbroad.” Id. at 578. We

conclude Harris is distinguishable. The Iowa statute not only allows an

additional four business days to report Internet identifiers, but also

provides more clarity and more limited public disclosure than in Harris,

as explained below. The weight of authority supports the State’s position

here.

2. Iowa’s Internet identifier reporting requirement. Aschbrenner

and the State agree that Iowa’s sex offender registry statute is content

neutral. Aschbrenner has not presented any evidence that the Internet

identifier reporting requirement targets speakers in a way that suggests

the restrictions are “a proxy for content regulation.” Harris, 772 F.3d at

576. For those reasons, we conclude the Iowa statute is subject to no
 17

more than intermediate scrutiny. Turner Broad. Sys., Inc. v. F.C.C., 512

U.S. 622, 642, 114 S. Ct. 2445, 2459 (1994).

“In order to survive intermediate scrutiny, a law must be ‘narrowly

tailored to serve a significant governmental interest.’ ” Packingham, 582

U.S. at ___, 137 S. Ct. at 1736 (quoting McCullen v. Coakley, 573 U.S.

464, 486, 134 S. Ct. 2518, 2534 (2014)). “To satisfy [intermediate

scrutiny], a regulation need not be the least speech-restrictive means of

advancing the Government’s interests.” Turner Broad. Sys., Inc., 512

U.S. at 662, 114 S. Ct. at 2469. We must consider whether “the means

chosen . . . ‘burden substantially more speech than is necessary to

further the government’s legitimate interests.’ ” Id. (quoting Ward v. Rock

Against Racism, 491 U.S. 781, 799, 109 S. Ct. 2746, 2758 (1989)).

The United States Supreme Court has recognized that states “may

pass valid laws to protect children” and other victims “from abuse.”

Packingham, 582 U.S. at ___, 137 S. Ct. at 1736 (quoting Ashcroft v. Free

Speech Coal., 535 U.S. 234, 245, 122 S. Ct. 1389, 1399 (2002)). It is

well-settled that protecting the public from sex offenders is a significant

governmental interest. We conclude Iowa’s Internet identifier reporting

requirement is narrowly tailored to serve this goal.

Aschbrenner argues that the “Internet identifiers” definition in the

Iowa Code is ambiguous, the reporting requirement applies to all

offenders regardless of whether their offense involved the Internet, and

the sheriff is able to give out information regarding whether an offender

has reported a specific Internet identifier, which he argues has a chilling

effect on expression. Aschbrenner contends the statute encompasses

email accounts, online banking accounts, blogging accounts, newspaper

account logins, accounts for online video and music streaming services,
 18

social media accounts, Apple ID, and all online shopping accounts. But

Aschbrenner reads the definition of “Internet identifier” too broadly.

By contrast, the State offers a plain language, commonsense

interpretation of the statutory definition. The State’s proposed

construction would limit Internet identifiers to the accounts used to send

messages, posts, and other user-generated communications or postings

that implicate the public safety concerns at issue with the sex offender

registry. Under the State’s interpretation, an account used only to order

and pay for goods would not have to be disclosed. We agree and adopt

that interpretation.

In our view, the State’s interpretation fits like a glove with the

applicable canons of construction for the sex offender registry statute. In

Maxwell, we described our approach to interpreting Iowa Code chapter

692A. 903 N.W.2d at 182–83. “We construe the statute ‘in light of the

legislative purpose.’ ” Id. at 182 (quoting In re A.J.M., 847 N.W.2d 601,

605 (Iowa 2014)). “[T]he purpose of the registry is protection of the

health and safety of individuals, and particularly children, from

individuals who, by virtue of probation, parole, or other release, have

been given access to members of the public.” Id. at 182–83 (quoting

Iowa Dist. Ct., 843 N.W.2d at 81). If an offender violates the registration

statute, the state can impose criminal liability. Id. at 183. Accordingly,

“[w]e strictly construe the penal provisions of chapter 692A, requiring fair

warning of the conduct prohibited, with doubt resolved in favor of the

accused.” Id.

The State’s narrower interpretation we adopt accomplishes these

goals. Reporting requirements are limited to Internet identifiers used for

outgoing communications or postings sent by the offender, consistent

with the statute’s purpose to guard against anonymous trolling for
 19

victims. This bright-line rule avoids the vagueness and overbreadth

issues Aschbrenner’s interpretation raises, which would sweep in

accounts harmlessly used for the passive receipt of entertainment and

information. See Doe v. Marshall, No. 2:15-CV-606-WKW, 2018 WL

1321034, at *16–18 (M.D. Ala. Mar. 14, 2018) (applying strict scrutiny to

strike down broader Internet disclosure requirement under First

Amendment).

Aschbrenner’s unrealistically broad interpretation runs afoul of

other applicable canons of instruction. “We have long recognized that

statutes should not be interpreted in a manner that leads to absurd

results.” Iowa Ins. Inst. v. Core Grp. of Iowa Ass’n for Justice, 867

N.W.2d 58, 75 (Iowa 2015); see also Iowa Code § 4.4(3) (“In enacting a

statute, . . . [a] just and reasonable result is intended.”); id. § 4.6(5)

(noting that if a statute is ambiguous, the court should consider, among

other things, “[t]he consequences of a particular construction”).

Moreover, the narrower interpretation we adopt today avoids

constitutional infirmities. “Where a state ‘statute “can be made

constitutionally definite by a reasonable construction, . . . this Court is

under a duty to give the statute that construction.” ’ ” State v. Nail, 743

N.W.2d 535, 540 (Iowa 2007) (quoting State v. Williams, 238 N.W.2d 302,

306 (Iowa 1976)(en banc)). Put another way,

When possible, statutory provisions should be construed in
such a way as to avoid unconstitutionality rather than
simply void them on the basis of an interpretation which
renders them constitutionally infirm. If the law is
reasonably open to two constructions, one that renders it
unconstitutional and one that does not, the court must
adopt the interpretation that upholds the law’s
constitutionality. It would also be preferable to construe the
statute to support constitutionality rather than to rewrite or
try to improve the statute in some other way.
 20

Iowa Supreme Ct. Bd. of Prof’l Ethics & Conduct v. Visser, 629 N.W.2d

376, 380 (Iowa 2001) (en banc) (quoting 2A Norman J. Singer, Statutes

and Statutory Construction § 45.11, at 70–71 (2000 rev.)).

The Iowa statute is less onerous than those found unconstitutional

in other jurisdictions. Iowa’s Internet identifier reporting requirement

does not prohibit Aschbrenner from using social media websites, nor is

he prohibited from using the Internet. Contra Doe v. Prosecutor, Marion

Cty., Ind., 705 F.3d 694, 703 (7th Cir. 2013) (invalidating state statute

that prevented sex offenders from, among other things, accessing social

media sites); Doe v. Kentucky ex rel. Tilley, 283 F. Supp. 3d 608, 611–16

(E.D. Ky. 2017) (same). Nor is Aschbrenner required to provide the

sheriff with any passwords associated with his Internet identifiers. See

White v. Baker, 696 F. Supp. 2d 1289, 1312 (N.D. Ga. 2010) (concluding

sex offender was likely to prevail on his claim that the state sex offender

registration statute requiring offenders to provide law enforcement with

Internet passwords violated his right to free speech). Iowa’s Internet

identifier reporting requirement also gives offenders five business days to

report changes, and the DPS allows offenders to report changes in

person, by phone, or email. See Harris, 772 F.3d at 581–83 (concluding

that a reporting statute that required written notice of Internet identifiers

within twenty-four hours was “onerous and overbroad”); Doe v. Snyder,

101 F. Supp. 3d 672, 704 (E.D. Mich. 2015) (holding that a statute’s

requirement that an offender report Internet identifiers in person within

three business days “imposes a substantially greater, and apparently

unnecessary, burden on protected First Amendment speech”).

Further, to obtain an offender’s Internet identifier, a member of the

public must make a specific request for records linked to a particular

Internet identifier. Iowa Code § 692A.121(9). Under Iowa’s statutory
 21

scheme, an Internet identifier would only be disclosed if a member of the

public asked about a specific Internet identifier and whether it is linked

to a sex offender. The sheriff’s department is permitted “to verify if a

particular internet identifier . . . is one that has been included in a

registration by a sex offender.” Id.; cf. Harris, 772 F.3d at 580 (noting

that the statute at issue allowed law enforcement to disclose information

about sex offenders to the public “by whatever means the entity deems

appropriate, when necessary to ensure the public safety” (alteration in

original) (quoting Cal. Penal Code § 290.45(a)(1) (West 2014))).

The Internet identifier-reporting requirement minimizes any

chilling effect on Aschbrenner’s ability to speak anonymously. The

statute is content neutral without prohibiting speech and allows

Aschbrenner to report an Internet identifier after it has been created. In

Shurtleff, the United States Court of Appeals for the Tenth Circuit noted

that disclosing an Internet identifier “would generally occur, if at all, at

some time period following [the offender’s] speech and not at the moment

he wished to be heard.” 628 F.3d at 1225. “Speech is chilled when an

individual whose speech relies on anonymity is forced to reveal his

identity as a pre-condition to expression.” Id. (quoting Peterson v. Nat’l

Telecomm. & Info. Admin., 478 F.3d 626, 632 (4th Cir. 2007)).

Aschbrenner has not shown that Iowa Code chapter 692A

unconstitutionally burdens his right to speak anonymously.

We conclude the Internet identifier-reporting requirement of Iowa

Code section 692A.104(1) is narrowly tailored to serve a significant

governmental interest. For that reason, we reject Aschbrenner’s

challenges under the First Amendment and article I, section 7 of the Iowa

Constitution.
 22

IV. Disposition.

For these reasons, we affirm the district court judgment.

AFFIRMED.

All justices concur except Wiggins and Appel, JJ., who dissent.
 23

#18–1045, State v. Aschbrenner

WIGGINS, Justice (dissenting).

I feel compelled to write on the ex post facto issue. Normally, I

would concur in the majority decision because we decided in State v.

Seering that requiring a person to register on the sex offender registry is

not punitive and, thus, the Ex Post Facto Clauses of the Iowa and

Federal Constitutions have no applicability to an ex post facto challenge.

701 N.W.2d 655, 669 (Iowa 2005), superseded by statute on other

grounds, 2009 Iowa Acts ch. 119, § 3 (codified at Iowa Code § 692A.103

(Supp. 2009)), as recognized in In re T.H., 913 N.W.2d 578, 587–88 (Iowa

2018). Stare decisis is a venerable doctrine lending stability to the law.

Kiesau v. Bantz, 686 N.W.2d 164, 173 (Iowa 2004), overruled on other

grounds by Alcala v. Marriott Int’l, Inc., 880 N.W.2d 699, 708 n.3 (Iowa

2016). However, stare decisis does not prevent us from reconsidering

our past judicial decisions when error is manifest. Id. Moreover, we

should not deprive a litigant of a legal right or defense if our past

decision is clearly erroneous. Id. I would find our prior decision in

Seering clearly erroneous for two reasons.

First, our decision in In re T.H. held that sex offender registration

requirements for juvenile offenders are punitive. 913 N.W.2d at 596. As

the dissenters in In re T.H. pointed out, one of whom is the writer of the

majority decision in this case, there are “no cases supporting a

constitutional distinction between registration of adult sex offenders and

registration of juvenile sex offenders.” Id. at 607 (Mansfield, J.,

concurring in part and dissenting in part). I agree with that statement,

and if the registration requirements for juvenile sex offenders are

punitive, the registration requirements for adult sex offenders are just as

punitive. It is disingenuous to decide otherwise.
 24

Second, since our decision in Seering, many courts have examined

this issue and have found the registration requirements for adult sex

offenders are punitive. See, e.g., Doe v. State, 189 P.3d 999, 1017–18

(Alaska 2008); Hevner v. State, 919 N.E.2d 109, 112–13 (Ind. 2010);

State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Doe v. Dep’t of Pub. Safety &

Corr. Servs., 62 A.3d 123, 140 (Md. 2013); State v. Simnick, 779 N.W.2d

335, 342 (Neb. 2010); Starkey v. Okla. Dep’t of Corr., 305 P.3d 1004,

1030 (Okla. 2013); Commonwealth v. Muniz, 164 A.3d 1189, 1218, 1223

(Pa. 2017) (plurality opinion), cert. denied, 138 S. Ct. 925, 925 (2018).

Therefore, the reasons set forth in my separate opinion in Seering are as

applicable today as they were when I wrote them. See 701 N.W.2d at

671―72 (Wiggins, J., concurring in part and dissenting in part).

Accordingly, I would find the registration requirements for adult

sex offenders are punitive and violate the Ex Post Facto Clauses of the

Iowa and Federal Constitutions as applied to Lloyd Aschbrenner.

Appel, J., joins this dissent.