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.
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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
4
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
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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
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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.
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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,
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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)).
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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
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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.”).
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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
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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).
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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
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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
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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.